DISSENTER’S PERSPECTIVE: A READING OF KIHOTO HOLLOHAN

“A state which dwarfs it’s men, in order that they may be more docile instruments in its hands even for beneficial purposes–will find that with small men no great thing can really be accomplished.

  -John Stuart Mill

The state that aspires to achieve the objectives as noble as mentioned in our Constitution cannot proceed towards that end if a scope of blanket gag exists that can be issued at the whims of the masters within the political parties backed by the amendment to the Constitution. Those who concur all the time are subordinates and not equivalents. There is no intra party democracy among the major political parties of the country, and it is not a good sign for parliamentary democracy.

The developments around the anti-defection laws in India have given birth to a debate between dissent and defection. Arguing for the Sachin Pilot camp, Senior Advocate Harish Salve said, “If a group of MLAs raise their voices against the style of functioning of Chief Minister, that is not defection”. The major impetus to the debate was the observation by the full bench of hon’ble Supreme Court, to a plea by the Speaker of Rajasthan Legislative Assembly. The bench remarked, These are important questions relating to democracy. How will democracy function? These are very serious issues. We want to hear it… The question is, can voices of dissent be shut down like this?… After all, these are MLAs elected by people.

The landmark judgment of Kihota Hollohan by the constitutional bench of five Judges on the constitutionality of Constitution (Fifty-second amendment) Act, 1985 i.e. the Schedule 10 of the Constitution as enacted by the Parliament. Although notorious among the dissenters for upholding the constitutionality of Schedule 10, the judgment includes a lot for them as well, in case they are principled and unaffected by the lure of money or power. In this article, the author will try to read the aforesaid judgment from the perspective of principled dissenters.

The majority judgment was written by Justice Venkatachaliah. In that, it was highlighted that there are certain side effects in Schedule 10 that “might affect and hurt even honest dissenters and conscientious objectors”. It was further accepted that there is a ‘hazy gray line’ between what is permitted within the constraints of constitutional law, and what is out of it. The court acknowledged its role of demarcating the sphere of constitutionality. 

The Court highlighted the role of debates and discussions in the policy making by the legislature and stated that the difference of opinion amongst the members of the same legislature party may also lead to modifications in and withdrawals of proposed policies that are being deliberated upon. They appreciated these processes of persuasion and dissent in a democracy which was acknowledged as the basic structure of the Constitution. 

Advocate Shri Ram Jaithmalani argued that the difference between ‘split’ and ‘defection’ was narrow and artificial, and “…an outrageous defiance of logic.” While rejecting his argument, the court made it certain that the legislature envisaged protecting honest dissent. Subsequently, the court remarked that, “…The provisions are salutary and are intended to strengthen the fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections…”

A member of the house can be disqualified under Paragraph 2 of Schedule 10 if –

“(a) if he has voluntarily given up his membership of such political party; or

(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.”

Evidently, there are two exceptions to the abovementioned ground under clause (b) for the disqualification-

  1. Prior Permission of the political party or;
  2. Post-approval by the Political Party.

In the light of these exceptions, the court raised a question regarding the meaning and scope of ‘any direction’ mentioned in Clause (b) of sub-para 1 of Paragraph 2 of Schedule 10. These exceptions provide an opportunity for the political party to back the decision of the dissenting legislators rather than disqualifying them. The court suggested taking a clue from these exceptions while reading the phrase ‘any direction’. The author feels that the court hinted that the provisions of disqualification make room for the dissenting legislators. It is to be noted that this room for dissent is contingent upon the political party.

Some of the parties contended to interpret the phrase ‘any direction’ to limit its scope to the object of the Constitution (Fifty Second Amendment) Act, 1985. Moreover, it was suggested to the court to rely on the minority opinion by the full bench of Punjab and Haryana High Court in Parkash Singh Badal v. Union of India. Justice Tewatia, in the minority opinion, held that if the phrase ‘any direction’ is construed literally it would reduce the elected legislator to a mere rubber stamp of the political party. It is to be specified that he is also a representative of the constituency, and serves in a dual capacity. The minority opinion further stated that any wider interpretation of the phrase ‘any direction’ would rob the provision of its constitutionality because it would be destructive of democracy/parliamentary democracy, a basic feature of the constitution. The purpose of Paragraph 2 of the schedule is limited to ensuring the stability of the democratic system, stated the minority opinion.

Article 75(3) of the constitution states that “The Council of Ministers shall be collectively responsible to the house of the people.” A similar provision is given under Article 164(2) for the legislative assemblies. Consequently, a motion of ‘no confidence’ against the government will remove the government from the office. Also, no government can function without money. Hence, if ‘cut–motion in budgetary grants’ is passed then, it becomes impossible for it to function. Therefore, according to the minority opinion, apart from these two motions, the legislators are free to cast their vote, and speak their mind.

The court in Kihoto, although, rejected the aforesaid minority opinion concerning the unconstitutionality of the broader definition of the phrase (‘any direction’) but, accepted its conclusion that the phrase is to be construed harmoniously with the other provisions of the constitution. Art. 105(1) and 194(1) of the Constitution provides for freedom of speech for the members of the house. Hence, Schedule 10 is to exclude from its ambit the right of the members to speak their mind in the house. 

The reading of the Schedule is to be confined to its objects and proposes i.e. prevention of the unethical and unprincipled defections. The court went ahead to state that there is no justification to facilitate the broader interpretation of that phrase to include within its ambit all the directions issued by the party. However, if the legislator votes or abstains on a motion against the direction of the party with which it went to the electorate, he attracts the disqualification under Schedule 10 of the Constitution

We, now, come back to J.S. Mill who said, “Persons of genius, it is true, are, and are always likely to be, a small minority; but in order to have them, it is necessary to preserve the soil in which they grow.” The dissenters are mostly in minority within the shackles of the centralized political parties that are potent enough in order to silence them through its ‘whips’. As per Kihoto, there is a scope to accommodate the concerns of dissenters within Schedule 10. But, in order to preserve the geniuses for a thriving democracy, a clear demarcated nurturing field is to be created for them within the ambit of anti-defection provisions.

Aditya Puri is reading law at National Law University, Jabalpur while Saral Khandelwal is reading it at National Law University, Delhi. They take interest in politico-legal developments.

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