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Shri Kihota Hollohon v. Mr.

Zachilhu and others: A Case Comment 1

Part I: Background and Introduction to Case

The Constitution of India is primarily a social document with a political philosophy


intended to bring about great changes in the socio-economic structure and to achieve the
goals of national unity and stability. It derives its force from the people and has at its base
a value system. Its preamble speaks of the sovereignty of people, democratic polity,
justice, liberty, equality and fraternity assuring the dignity of the individual and the unity
and integrity of the nation.1 The preamble is a modified version of the objectives
resolution of Jawaharlal Nehru which served as the foundation in the making of the
constitution. The resolution was deeply rooted in the history of our movement of
independence led by leaders who were committed to certain ideals and to their fulfillment
through fair and proper means. They were the main architect of the basic law and they
cautioned that it would not work unless its execution was entrusted to persons of caliber,
character and integrity, and unless healthy conventions were developed to cover
situations which cannot be provided for by precise formulae. They thus valued human
element in the working of the constitution, and hoped that the country would produce
such persons in abundance, and that good sense and wisdom would pervade the
functioning of political institutions.2
After the commencement of the constitution, however, it did not take long for political
functionaries to belie largely the hopes of the framers. Especially after the departure of
Nehru, the country witnessed a sharp decline in political morality and propriety and a
phenomenal growth of political corruption of varied type. The worst form of corruption
that emerged on a massive scale on the Indian Political Scene was defection of legislators
wither individually or in groups. The unprincipled floor crossing was nothing but a
betrayal of the electorate and undermining of the political organs of the state. The lust for
power, position and money was obviously behind such defections. The present day
political process is closely linked with socio-economic and cultural processes. Perversion
of the former has a devastating impact on the latter. This is what the politics of defection
did. It was therefore widely condemned and attempts were made to eradicate this evil by

1
Granville Austin: The Indian Constitution: Cornerstone of a Nation (1966)
2
Speech of Dr. Rajendra Prasad in the Constituent Assembly, Constituent Assembly Debates, Vols. X-XII
at 933-94
Shri Kihota Hollohon v. Mr. Zachilhu and others: A Case Comment 2

law but in vain in terms of the Constitutional amendment bills 1973 and 1978. In early
1985, however, the government initiative having the support of the opposition worked
and Parliament enacted in record time the Constitution (Fifty-Second Amendment) Act
outlawing defections to save the foundations of our nascent democracy and the principles
that sustain it.3
In the petitions heard together in the case of Kihota Hollohon v. Zachilhu and others4,
hereinafter referred to as the case, the Constitutional validity of the Tenth Schedule
introduced by the Constitution (Fifty Second Amendment) Act, 1985, was challenged.
These cases were brought amongst a batch of Writ Petitions, Transfer Petitions, Civil
Appeals, Special Leave Petitions and other similar and connected matters raising
common questions which were all heard together. The Constitution (Fifty-second
Amendment) Act changed four articles of the Constitution, viz. 101(3)(a), 102(2), 190(3)
(a) and 191(2) and added tenth schedule thereto. This Amendment is often referred to as
Anti-Defection Law.
The constitutionality of the Anti-Defection Law has been upheld by the Hon’ble Supreme
Court in a 3:2 decision in the case. The majority consisted of M.N. Venkatachaliah, K.J.
Reddy, and S.C. Agrawal, Jj. and the minority was consisted by L.M. Sharma and J.S.
Verma, Jj. At the same time as upholding the Constitutional validity of the Anti-
Defection law the court has rules that the speaker’s orders under the law disqualifying a
member of the legislature on the ground of defection is subject to judicial review.
Some of the most eminent lawyers of the country were the counsels in the case and thus
the arguments and contentions are evidently crafted with utmost proficiency. The same
have been dealt with by the respective Hon’ble judges in a detailed manner, however,
leaving aside some contentions which may not have been required with view of reaching
the conclusions.
The endeavor in the making of this project is to give a commentary on the views as
expressed by the Hon’ble judges of the Supreme Court in the case and therefore in the
following chapters the ruling has been scrutinized, criticized and observed. The chapters

3
Statement of Objects and Reasons appended to the Constitution (Fifty-second Amendment) Bill, 1985
(Bill No. 22 of 1985) cited from http://indiacode.nic.in/coiweb/amend/amend52.htm
4
AIR 1993 SC 412
Shri Kihota Hollohon v. Mr. Zachilhu and others: A Case Comment 3

consist of the various contentions raised and urged in the case and contain a commentary
upon the majority and minority judgments on them respectively.
Shri Kihota Hollohon v. Mr. Zachilhu and others: A Case Comment 4

Part II: Violation of the Basic Structure

The contentions raised and urged in terms of the violation of the basic structure are:
1. Fundamental Principles of Parliamentary Democracy,
2. Freedom of Speech and
3. The right to dissent and the freedom of conscience.
The basic underlying contention is that every parliamentarian must have the right to
follow his own spirit and sense of judgment and not necessarily with the policy of his
political party. This according to the petitioners is deemed to be a fundamental principle
of parliamentary democracy, freedom of speech and the right to dissent and the freedom
of conscience. The learned counsels referred to several authorities to stress upon the
same. In words of Edmund Burke:
“.... Your representative owes you, not his industry only, but his judgment; and he
betrays, instead of serving you, if he sacrifices it to your opinion.”5
In response to this the question deliberated upon by the court is that under such
Constitutional scheme would there be any immunity from the political evil of the act of
defection in lure of office and money inducement? Deliberating upon the same hon’ble
Justice Venkatachaliah has expressed that in such areas of experimental legislation what
is constitutionally valid and what is constitutionally invalid is marked by a ‘hazy gray
line’ and thus there is no litmus test of constitutionality. The majority then went on to
decide in favor of the Constitutional validity saying that the Constitution is flexible to
provide for the compulsions of the changing times, that the freedom of speech of a
member is not an absolute freedom and also that the political party functions on the
strength of shared beliefs, it being the cost of the label of the party under which the
representative has been elected that he must not vote against it.
The right of a parliamentarian is indeed not an absolute right and is thus subject to
reasonable restrictions. The right of a parliamentarian to the freedom of speech is
provided for under the Article 105(2). This as contended by Shri Sharma, arguing on the
side of the petitioners, is places even above the fundamental right as guaranteed under the
Article 19(1)(a) of the Constitution. However there are limitations that can be imposed

5
MANU/SC/0101/1993 para 14
Shri Kihota Hollohon v. Mr. Zachilhu and others: A Case Comment 5

upon the right.6 The abstention of such right as a result of the disqualification is a
reasonable restriction in interest of public morality. A restriction on their conscience
franchise or abstention is reasonable in the interest of public morality. 7 Morality is
conformity to ideals of right human conduct.8 Such a conduct is in the public interest and
public interest requires that delegates, elected by people because they follow a particular
political philosophy must vacate such office on renouncing that philosophy.
A suggestion to the fact that the immunities as under the Article 105(2) are not absolute
in nature is that the National Commission for review of the Constitution in its report9
submitted in 2002 has in fact recommended that Article 105(2) ought to be amended:
“5.15.6. The Commission recommends that Article 105(2) may be amended to clarify
that the immunity enjoyed by the Members of Parliament under parliamentary
privileges does not cover corrupt acts committed by them in connection with their
duties in the House or otherwise. Article 194 (2) may also be similarly amended in
relation to the Members of State Legislatures.”
Political defections in lure of power and money inducements is also clearly a corrupt
practice, therefore not falling within the immunity granted to a member of the house.
Another contention raised by counsel for petitioners, Shri Ram Jethmalani is that the
distinction between ‘defection’ and ‘split’ in the Tenth Schedule is so thin and artificial
that the differences on which the distinction rests is indeed an outrageous defiance of
logic. Appreciating the argument of the counsel the Court has opined that the rule for
exemption of split is justified in terms that as much as 1/3rd members at the same time
cannot be driven dishonest intentions. In words of hon’ble Justice Venkatachaliah:
“The underlying premise in declaring an individual act of defection as forbidden is
that lure of office or money could be presumed to have prevailed. Legislature has
made this presumption on its own perception and assessment of the extant standards

6
Justice P.K. Balasubramanyan, Parliamentary Privilege: Complementary Role of the Institutions, (2006) 2
SCC (Jour) 1
7
Mian Bashir Ahmed v. State of J&K, AIR 1982 J&K p.26
8
Webster, New Colegiate Dictionary 742 (Indian edn. 1983) cited from J. K. Mittal, Anti-Defection Act:
Comment on its Constitutionality (1987) 3 SCC (Jour) 25`at 28
9
Report of the National Commission to Review the Working of the Constitution (Vol. I, March 2002) p.
168
Shri Kihota Hollohon v. Mr. Zachilhu and others: A Case Comment 6

of political proprieties and morality. At the same time legislature envisaged the need
to provide for such “floor-crosssing” on the basis of honest dissent. That a particular
course of conduct commended itself to a number of elected representatives might, in
itself, lend credence and reassurance to a presumption of bona fides. The
presumptive impropriety of motives progressively weakens according as the numbers
sharing the action and there is nothing capricious and arbitrary in this legislative
perception of the distinction between ‘defection’ and ‘split’.”10
However, the arguments of the counsel sound more convincing than the ruling given by
the court. These provisions give blanket exemption to splits and mergers and frustrate the
very purpose of Anti-Defection law. They are dangerous as their abuse can be easily
done. They are totally ill-conceived in view of what has happened in the recent past, and
illogical because under the Act, the greater the sin, the greater is the immunity. In many a
case defections are effected by groups-big and small. It would not be difficult to stage
splits and mergers for ulterior motives. In opinion of H.M. Seervai:
“ …if a small number of MPs desert their party they become defectors; but if a large
number of members defect their party this grand scale desertion ceases to be
desertion. But ordinarily governments are not toppled by a small number of
defections but by a large number of members of a party leaving it and/or going over
to the party to which they have been opposed. This is the evil which must be
eradicated in out country. For in India it is very rare for the members of a party to
leave it because of a conscientious change in opinion. Defections in India usually
take place because political interests are sold for money or for promise of
ministership or public office, and the defector may defect again for some more money
or promise of some more ministership or public office. In short it is odious form of
political corruption”.11
It is amazing that law punishes small fry but not hawks. The classification into
individuals and groups has no intelligible differentia having a rational relation with the
object of the law, and is, therefore unconstitutional in view of Article 14 and void. The
Act outlaws defection by individual members but shuts eye to defections in garb of splits

10
MANU/SC/0101/1993 para 21
11
supra note 5 at 1832
Shri Kihota Hollohon v. Mr. Zachilhu and others: A Case Comment 7

and mergers of groups of members. The classification is prima facie irrational; it is


undemocratic and ill-conceived.12
The minority judges held that there is a violation of the basic feature of the Constitution
as the Constitutional scheme for decisions on questions on disqualification of members
after being duly elected, contemplates adjudication of such disputes by an independent
authority outside the House, namely President/Governor in accordance with the opinion
of the Election Commission all of which are higher Constitutional functionaries.
The Election Commission having a similar opinion as that of the minority judges in the
present case suggested in recommendations made in 1977 that as in the case of other
disqualifications referred to in articles 102 and 191 of the constitution, the
disqualification on grounds of defection could also be referred to the Election
Commission for tendering opinion to the President or the Governor, as the case may be,
and the President or the Governor shall act on such opinion tendered by the Election
Commission.13

12
J. K. Mittal, Anti-Defection Act: Comment on its Constitutionality (1987) 3 SCC (Jour) 25 at 29
13
P. C. Jain, Chawla’s Elections Law and Practice (Bahri Brothers, Delhi, 8th edn. 2004) p. 1.704
Shri Kihota Hollohon v. Mr. Zachilhu and others: A Case Comment 8

Part III: Ratification required under Article 368(2) and


applicability of Doctrine of Severability

The second major contention raised by the petitioners is that paragraph 7 in terms and in
effect brings about a change in the operation and effect of Articles 136, 226 and 227 thus
attracting the clause (2) of the Article 368 requiring ratification. The court subscribing to
it has opined that the words of the paragraph 7 are of wide import and leave no
constructional options. The same idea is reinforced by looking into the history of the
defection law and the debates in the house which suggests that paragraph 7 was
introduced with the very purpose of barring jurisdiction. The court has differentiated the
present case from the cases of Shankari Prasad Singh Deo v. Union of India and State of
bihar14 and Sajjan Singh v. State of Rajasthan15 that were relied upon to urge that there is
no attraction to the clause (2) of the Article 368 by stating:

“The propositions that fell for consideration in Sankari Prasad Singh's and Sajjan
Singh's cases are indeed different. There the jurisdiction and power of the Courts
under Articles 136 and 226 were not sought to be taken away nor was there any
change brought about in those provisions either "in terms or in effect", since the very
rights which could be adjudicated under and enforced by the Courts were themselves
taken away by the Constitution. The result was that there was no area for the
jurisdiction of the Courts to operate upon. Matters are entirely different in the
context of Paragraph 7.”16

Therefore it was by majority held that the amendment in terms and in effect brings about
a change in the operation and effect of the Articles 136 and 226 and thus requires
ratification under the clause (2) of the Article 368.
The minority has reached to a similar conclusion by applying a similar logic to the cases
Sankari Prasad and Sajjan Singh. In view of the minority there two classes of cases, one
with the abridgement or extinction of the right and the second one with the restriction on

14
1952 SCR 89
15
MANU/SC/0052/1964
16
MANU/SC/0101/1993 para 24
Shri Kihota Hollohon v. Mr. Zachilhu and others: A Case Comment 9

remedy for the enforcement of right. The two cases belong to the former category and the
present case falls in the latter category where the right still exists but at the same time the
remedy has been destroyed. This result in changes made to the Articles 136, 226 and 227
thus attracting clause (2) Article 368.
The argument, as raised by Shri Sibal that a provision which seeks to exclude the
jurisdiction of the court must be strictly construed and thus the para 7 bars the
interference of the court only in terms of interlocutory intervention does not hold as such
construction in the present case is not possible. Such a construction is not possible as the
intention of the legislature in introducing the para 7 of the Tenth Schedule is very clear
that is to completely oust the power of the court to interfere in the decision making
process of the speaker and in light of the para 6 giving finality to the speaker’s decision
even after the decision has been made.
The next question in consideration before the majority and minority, after having decided
unanimously that the para 7 requires ratification and thus stands constitutionally invalid is
that whether the Tenth Schedule severed from the para 7 stands constitutionally valid or
not?
In opinion of the minority the effect of the absence of ratification is such that the
Constitution would not stand amended. In words of hon’nble Justice J. S. Verma:
“..the Bills governed by the proviso cannot be presented to the President for his
assent without the prior ratification by the specified number of State Legislatures or
in other words, such ratification is a part of the special procedure or a condition
precedent to presentation of the Bill governed by the proviso to the President for his
assent. It logically follows that the consequence of the Constitution standing amended
in accordance with the terms of the Bill on assent by the President, which is the
substantive part of Article 368, results only when the Bill has been presented to the
President for his assent in conformity with the special procedure after performance
of the conditions precedent, namely, passing of the Bill by each House by the
requisite majority in the case of all Bills; and in the case of Bills governed by the
proviso, after the Bill has been passed by the requisite majority in each House and it
has also been ratified by the Legislature of not less than one-half of the States.”
Shri Kihota Hollohon v. Mr. Zachilhu and others: A Case Comment 10

Doctrine of Severability:
It was held in the case of R.M.D. Chamarbaugwalla v. Union of India,17 the Hon’ble
Supreme Court has observed:
“When a legislature whose authority is subject to limitations aforesaid enacts a law
which is wholly in excess of its powers, it is entirely void and must be completely
ignored. But where the legislation falls in part within the area allotted to it and in
part outside it, it is undoubtedly void as to the latter; but does it on that: account
become necessarily void in its entirety? The answer to this question must depend on
whether what is valid could be separated from what is invalid, and that is a question
which has to be decided by the court on a consideration of the provisions of the Act.”
The doctrine of severability has been applied by the Supreme Court in several landmark
cases striking down the offending part of the amendment and upholding the rest. 18
However, the question that comes into picture and the one that is addressed by the
majority in the present case is whether there is anything compelling in the proviso to the
Article 368(2) requiring it to be construed in such a manner as to exclude the doctrine of
severability?
The court responding to this has asserted that as a settled principle of statutory
construction a proviso can have no repercussion on the interpretation of the main
enactment.
The general rule as has been stated by Hidayatullah, J., in the following words:
“As a general rule, a proviso is added to an enactment to qualify or create an
exception as to what is in the enactment, and ordinarily, a proviso is not interpreted
as to stating a general rule.”19

17
1957 SCR 930 at 940
18
Sri Kesavananda Bharti Sripadagalavaru v. State of Kerala, 1973 Supp. SCR 1; Minerva Mills Ltd. and
Ors. v. Union of India and Ors., MANU/SC/0075/1980; P. Sambhamurthy and Ors. etc v. State of Andhra
Pradesh and Anr. MANU/SC/0103/1987
19
Shah Bhojraj Kuverji Oil Mills and Ginning factory v. Subash Chandra Yograj Sinha, AIR 1961 SC
1596 at 1690 cited from Justice G. P. Singh, Principles of Statutory Interpretations( Wadhwa and
Company, Nagpur, fifth edn. 1992) p. 133
Shri Kihota Hollohon v. Mr. Zachilhu and others: A Case Comment 11

Except as to the cases dealt with by it, a proviso has no repercussion on the interpretation
of the enacting portion of the section so as to exclude something by implication which is
embraced by clear words in the enactment.20
In West Durby Union v. Metropolitan Life Assurance Co.21 Lord Watson said:
“I am perfectly clear that if the language of an enacting part of the statute does not
contain the provisions which are said to occur in it, you cannot derive these
provisions by any sort of implication from the proviso.”
Thus the proviso as to the Article 368(2) cannot be construed in manner that it does not
allow the applicability of the Doctrine of severability.
It was thus held by majority:
“That there is nothing in the said proviso to Article 368(2) which detracts from the
severability of a provision on account of the inclusion of which the Bill containing the
Amendment requires ratification from the rest of the provisions of such Bill which do
not attract and require such ratification. Having regard to the mandatory language
of Article 368(2) that “thereupon the Constitution shall stand amended” the
operation of the proviso should not be extended to Constitutional amendments in a
Bill which can stand by themselves without such ratification. , accordingly, the
Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth
Schedule in the Constitution of India, to the extent of its provisions which are
amenable to the legal-sovereign of the amending process of the Union Parliament
cannot be overborne by the proviso which cannot operate in that area……….the
remaining provisions of the Tenth Schedule can and do stand independently of
Paragraph 7 and are complete in themselves workable and are not truncated by the
excision of Paragraph 7.”
The view of the minority however stands to the contrary. As has already been stated that
the minority held that the Constitution has not been amended prima facie and thus stands
as it was before the Constitution (Fifty second amendment) Act 1985. According to the
20
Madras & Southern Maharatta Rly. Co. Ltd. v. Bezwada Municipality, AIR 1944 PC 71 at p. 73; CIT,
Mysore etc. v. Indo Mercantile bank Ltd. AIR 1959 SC 713 at p. 718 cited from Justice G. P. Singh,
Principles of Statutory Interpretations( Wadhwa and Company, Nagpur, fifth edn. 1992) p. 133
21
[1897] A.C. 647 at p.652 cited from S. G. G. Edgar, Craies on Statute Law, (Universal Publishing house,
New Delhi, seventh edn, 2002) p. 218
Shri Kihota Hollohon v. Mr. Zachilhu and others: A Case Comment 12

minority there is no question of the applicability of the doctrine of severability as it


cannot be applied to a ‘still born’ legislation. The minority also adduced that para 7, in
light of the developments that resulted in the enactment of the amendment was supposed
to be an integral part of the amendment and thus cannot be severed from the rest of the
Tenth Schedule.
Shri Kihota Hollohon v. Mr. Zachilhu and others: A Case Comment 13

Part IV: Restriction on Judicial Review

Another major contention on part of the petitioners is that the ‘finality clause’ as under
the para 6 of the Tenth Schedule excludes the court’s jurisdiction rendering the speaker
immune from Judicial Review.
In India the position is such that whatever authority decides disputes must be vested with
judicial authority. In the present case too the power to decide disputed disqualification
under para 6(1) is preeminently a judicial complexion. The majority in the present case
has held that the Speaker/chairman under the para 6(1) of the Tenth Schedule is Tribunal
and that the finality clause does not oust the jurisdiction of the courts under Arts. 136,
226 and 227 but only limits it.
In words of Hon’ble Justice Venkatachaliah:

“The finality clause in paragraph 6 does not completely exclude the jurisdiction of
the courts under Articles 136, 226 and 227 of the Constitution. But it does have the
effect of limiting the scope of the jurisdiction. The principle that is applied by the
courts is that in spite of a finality clause it is open to the court to examine whether the
action of the authority under challenge is ultra vires the powers conferred on the said
authority. Such an action can be ultra vires for the reason that it is in contravention
of a mandatory provision of the law conferring on the authority the power to take
such an action. It will also be ultra vires the powers conferred on the authority if it is
vitiated by mala fides or is colourable exercise of power based on extraneous and
irrelevant considerations.”22

It was thus held that the para 6 of the Tenth Schedule does not introduce a non-justiciable
area. The power to resolve the disputes of the Speaker/Chairman is a judicial power. The
important construction is that of the ‘finality clause’ which paved a way for the majority
to reach the judgment.
In view of the judgment and the various authorities provided to arrive upon the same, it
can be said that when under a statute an authority is give judicial power its power extends
only to the framework provided for within the statute and the authority simply following
22
MANU/SC/0101/1993 para 41
Shri Kihota Hollohon v. Mr. Zachilhu and others: A Case Comment 14

the provisions has the power to decide. His decisions have ‘finality’ if they fall within the
purview of the provisions. To that extent the power of the courts of Judicial Review
would be restricted. However, if the decision is illogical in the terms of the provisions or
is mala fide then the same would be beyond the ambit of the judicial power granted to the
authority and would be subject to jurisdiction of the appropriate court. Thus even if the
jurisdiction of the civil courts is ousted, they have jurisdiction to examine the cases where
the provisions of the Act and rules framed there under have not been observed and order
made by the authority is purported order23 or the statutory authority has not acted in
conformity with the fundamental principles of natural justice24 or the decision is based on
no evidence.25 The reason is that the order cannot be said to be ‘under the act’26 and as
such jurisdiction of civil courts is not ousted.
In Radha Krishnan v. Ludhiana Municipality,27 the Supreme Court observed:

“A suit in Civil Court will always lie to question the order of a tribunal created by
statute, even if its order is, expressly or by necessary implication, made final, if the
said tribunal abuses its power or does not act under the provisions of the Act”

Another contention raised before the court was that there is a violation of the basic
feature as independent adjudicatory machinery for resolution of electoral disputes is an
essential incident of democracy. The majority and minority have differed at this point
with the majority asserting that there is no violation of basic feature of Constitution
keeping in mind the pivotal position of the Speaker in a Parliamentary Democracy. The
Minority has asserted that there is a violation of the basic structure on clear and
23
Union of India v. Tarachand Gupta, AIR 1971 SC 1958 cited from J. J. R. Upadhaya, Administrative
Law(Central Law Agency, Allahabad, 4th edn. 2001) p. 361
24
Srinivas v. State of A.P., AIR 1971 SC 71; Chandra Shekhar v. Bar Council of India, Rajasthan, AIR
1983 SC 1012 cited from J. J. R. Upadhaya, Administrative Law(Central Law Agency, Allahabad, 4th edn.
2001) p. 361
25
Kaushaliya Devi v. Bachittar Singh, AIR 1960 SC 1168 cited from J. J. R. Upadhaya, Administrative
Law(Central Law Agency, Allahabad, 4th edn. 2001) p. 361
26
Dhula Bhai v. State of M.P., AIR 1969 SC 78 cited from J. J. R. Upadhaya, Administrative Law(Central
Law Agency, Allahabad, 4th edn. 2001) p. 361
27
AIR 1963 SC 1547
Shri Kihota Hollohon v. Mr. Zachilhu and others: A Case Comment 15

unambiguous terms as there is no independent body to adjudicate over an electoral


dispute. The majority has extolled the position of a Speaker and thus rather
unconvincingly tried to justify its view saying that there is no violation of the basic
structure of the Constitution.

Part V: Subsequent developments and Conclusion


Shri Kihota Hollohon v. Mr. Zachilhu and others: A Case Comment 16

The purpose underlying the Anti-Defection Law is to curb defections, at the same time
not to come in the way of democratic realignment of parties in the House by merger of
two or more party’s or a split in a party. The Anti-Defection law when passed was a bold
step in the Indian scenario but now with the passage of time certain loop holes seem to
have emerged in the law much compromising in its effectiveness. The truth of the matter
is that the law has not been able to prevent defections in Toto.
While individual defections may have been discouraged, mass defections lie beyond the
pale of law. Another difficulty in the implementation of the law is that often the speakers
have not always exercised their power to determine whether a person is liable for the act
of defection. He reason for this malady was rightly diagnosed by the minority Judges in
the case (Kihota) that the speaker depends continuously on the majority support of the
house, therefore if a member defects from a smaller party to a bigger party, the Speaker
belongs to the bigger party, an impartial adjudication on the defecting members’
ddisqualification becomes extremely improbable. There has been a suspicion in the
public mind that the power is at times exercised by the Speaker keeping in mind the
political expediency. The majority judges placed the Speaker on a high pedestal but that
does not really accord with the real facts of the political life of India.
Recently the Supreme Court has considered a very important question.28 A person set up
by a political party as a candidate gets elected to the house of Legislature and thereafter
expelled by the party for any reason. He thus becomes an ‘unattached’ member. I
thereafter he joins another political party, will he incur disqualification under the Tenth
Schedule. The Supreme Court has answered the question in affirmative. The same
yardstick is to be applied to a person who has independently been elected.
It seems like the Anti-defection law has stirred up more controversies than it has been
able to solve. For example, the Meghalaya Speaker suspended the voting rights of five
independent members before the house was due to take up no confidence motion against
the government. Later the speaker dismissed the voting rights of another five members of
the opposition parties, ignoring the stay order as passed by the Supreme Court.

28
G. Vishwanathan v. Speaker, T.N. Legislative Assembly, AIR 1996 SC 1060
Shri Kihota Hollohon v. Mr. Zachilhu and others: A Case Comment 17

Defections have become an endemic in Goa so much so that the Speaker Barbosa himself
led a group of seven legislators going out of the ruling party so as to himself become the
Chief Minister of the state. Thus the speaker himself had defected.29
The unsavory incidents that have occurred in the wake of the Anti defection law show
that there is a need to review the law as there are several lacunae in it. While there is a
need to have a law to root out the malady of political defections from the Indian polity,
there is also a need to endure that the question of disqualification is decided objectively,
without any political considerations. It should be clearly laid down that the decision
maker would be subject to the ultimate control of the Supreme Court. Law must be made
certain in a lot more areas.
Another important question to decide is whether the power to disqualify should continue
to rest in the speakers who have in the past abused the same, thus defying the heavy
reliance of the majority Judges in the case. In terms of the situation faced on the present
day the decision making authority should be placed as was suggested by the minority
Judges, in favor of the basic structure of the Constitution in some independent body.
Some sort of Judicial review is also called for the decision making process because it has
been proved in many circumstances again and again a speaker is more of a political
creature.
It is also being argued that the law which has succeeded in preventing individual
defections must also prevent mass defections. The role of the speaker also has to be
called in question. As mentioned in the minority view in Kihota Hollohon, the speaker
depends for his tenure on the majority in the legislature. He does not satisfy the
requirement of an ‘individual adjudicatory body’. Subsequent event in the various
legislatures have proved these assertions of the minority judges right. The high ethical
standard which was setup by the majority judges in the case is seldom reached by the
Speakers in India.
This situation can be rectified and the Anti-Defection law made more effective, if
adjudicatory function is rested in the Election Commission. On the lines of Articles 102
and 192, the president in case of the parliament and the governor in the case of state

29
M.P. Jain, Indian Constitutional Law( Wadhwa publishers, Nagpur, 5th edn. 2005) p. 46
Shri Kihota Hollohon v. Mr. Zachilhu and others: A Case Comment 18

legislature, may refer the matter to the Election Commission. This seems to be the only
way to avoid the politically motivated decisions of the speakers.
If the present system is to continue then the Supreme Court has to assume much broader
power in terms of judicial review over the Speaker’s decision under the Anti-defection
law that what the Supreme Court is prepared to do at present under the formulation in
Kihota Hollohon.
One aspect of the Anti-defection law needs to be pointed out. Before the commencement
of the Tenth schedule a ‘political party’ was never recognized under the Constitution but
now their existence is acknowledged under the Anti-defection law.