Judgement Briefs

Constitutional Law

Kihoto Hollohan v. Zachillhu

AIR 1993 SC 412; 1992 Supp (2) SCC 651

Citation
AIR 1993 SC 412; 1992 Supp (2) SCC 651
Court
Supreme Court of India
Date
18 February 1992
Bench
M.N. Venkatachaliah; L.M. Sharma; J.S. Verma; K. Jayachandra Reddy; S.C. Agrawal

Facts

  • The Constitution (Fifty-Second Amendment) Act, 1985 inserted the Tenth Schedule.
  • The Schedule provided for disqualification of legislators who:
  • voluntarily gave up membership of their political party; or
  • voted or abstained contrary to the party whip without permission.
  • The Speaker or Chairman of the House was empowered to decide disqualification disputes.
  • Paragraph 6 declared that decision final.
  • Paragraph 7 excluded the jurisdiction of all courts.
  • Legislators challenged the Schedule, arguing that:
  • it restricted freedom of speech and voting;
  • the Speaker was politically partisan;
  • judicial review was excluded; and
  • Paragraph 7 had not received the State ratification required under Article 368.

Issue

  • Whether the anti-defection law violated parliamentary democracy.
  • Whether adjudication by the Speaker was constitutionally valid.
  • Whether the Speaker’s decision was subject to judicial review.
  • Whether Paragraph 7 required ratification by at least half the States.
  • Whether invalidity of Paragraph 7 destroyed the entire Tenth Schedule.

Rule

  • Political defection may constitutionally be regulated to preserve governmental stability and democratic integrity.
  • The Speaker, when deciding a disqualification petition, acts as a statutory or constitutional tribunal.
  • Decisions of such a tribunal remain subject to judicial review.
  • Finality clauses do not exclude review for:
  • mala fides;
  • jurisdictional error;
  • violation of constitutional requirements;
  • breach of natural justice; or
  • perversity.
  • An amendment affecting the jurisdiction of the Supreme Court and High Courts requires State ratification under the proviso to Article 368(2).
  • An invalid provision may be severed where the remainder can independently operate.

Application

  • The majority held that the Tenth Schedule pursued a legitimate constitutional objective.
  • Defection may distort the electoral mandate and permit legislators to change political allegiance for personal advantage.
  • Requiring party discipline in specified voting situations did not completely destroy legislative debate or parliamentary government.
  • On adjudication, the majority accepted that the Speaker ordinarily holds a respected constitutional office.
  • However, the Speaker’s decision could not be made completely immune from judicial control.
  • Paragraph 6’s finality therefore did not prevent post-decisional review.
  • Courts would ordinarily wait until the Speaker delivered a final decision rather than interrupt pending proceedings.
  • Exceptional intervention could occur where immediate action was necessary to prevent serious constitutional illegality.
  • Paragraph 7 expressly excluded the jurisdiction of constitutional courts.
  • This changed powers protected by the proviso to Article 368 and therefore required ratification by at least half of the State Legislatures.
  • Since the necessary ratification had not occurred, Paragraph 7 was invalid.
  • The majority found it severable because the anti-defection mechanism could operate without total exclusion of courts.
  • The dissenting judges expressed greater concern that a politically affiliated Speaker could not provide the independence required for adjudicating disputes affecting legislative membership.

Conclusion

  • By a 3:2 majority, the Tenth Schedule was substantially upheld.
  • Paragraph 7 was struck down for lack of State ratification.
  • The Speaker’s decision was declared subject to judicial review, normally after a final order.
  • Review could address mala fides, constitutional violations, natural justice and jurisdictional defects.