Why in the news?
Recently the Rajasthan High Court directed that status quo be maintained in the disqualification proceedings against 19 legislators of Sachin Pilot group and holds a legal challenge to the Rajasthan Assembly Speaker C. P. Joshi’s notice under the anti-defection law to be maintainable. Some jurists raised question on High Court’s order.
What is Kihoto Hollohan judgement?
The law covering the disqualification of legislators and the powers of the Speaker in deciding such matters became part of the statute book in 1985 when the Tenth Schedule to the Constitution was adopted.
A constitutional challenge to the Tenth Schedule was settled by the Supreme Court in Kihoto Hollohan.
Paragraph 2 of the Schedule says that “a member of a House belonging to any political party shall be disqualified from being a member of the House… if he has voluntarily given up his membership of such political party; or if he votes or abstains from voting in such House contrary to any direction issued by the political party… without obtaining… prior permission…”
Paragraph 6(1) of the Tenth Schedule says: “If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final.”
The petitioners in Kihoto Hollohan vs Zachillhu And Others (1992) argued whether it was fair that the Speaker should have such broad powers, given that there is always a reasonable likelihood of bias.
The majority judgment (3-2) authored by Justices M N Venkatachaliah and K Jayachandra Reddy said: “The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far reaching decisions in the Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in them should not be considered exceptionable.”
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