Kihoto Hollohan versus Zachillhu case (1992)

CITATION	1992 SCR (1) 686, 1992 SCC Supl. (2) 651, AIR 1993 SC 412
DATE OF JUDGMENT	18 February, 1992
COURT	Supreme Court of India
APPELLANT	Kihoto Hollohon
RESPONDENT	Zachilhu and ors.
BENCH	Sharma, L.M. (J), Venkatachalliah, M.N. (J), Verma, Jagdish Saran (J), Reddy, K. Jayachandra (J), Agrawal, S.C. (J)

INTRODUCTION-:

This case relates to the number of Writ petitions filed in the Supreme Court under Article 32 of the constitution.

 • This case is a verdict by the constitution bench of the Supreme Court relating to the constitutional validity of the 52nd Amendment introducing Tenth Schedule in the constitution.

 • This petition also challenges the violation of Article 368 (2), according to which the amendment must be ratified by the legislatures of not less than one-half of the States before the president’s consent.

 • The matter was adjudicated by a five judge bench of the Supreme Court, comprising Justice M N Venkatachalliah, Justice L M Sharma, Justice Jagdish Saran Verma, Justice K. JAYACHANDRA Reddy, and Justice S C Agarwal. 

• A large number of petitions were filed before various High Courts as well as this Court challenging the constitutionality of the 52nd Amendment. This Court transferred to itself the petitions pending before the High Courts and heard all the matters together.

 • 52nd Amendment of the constitution is popularly known as ‘Anti Defection Law’.

FACTS OF THE CASE-:

• In 1985, Parliament brought the 52nd Amendment (also known as Anti Defection Law) by which Tenth Schedule was inserted which provided for disqualification of any member from either house of Parliament or State Legislature. 

• Apart from the 10th Schedule, Article 101(3)(a), 102(2), 190(3)(a) and 191(2) are also altered.

 • Grounds of defection were given under Para 2 of the Tenth Schedule.

 • Paragraph 6(1) states that the question of disqualification shall be referred for decision of the chairman/Speaker of the House and his decision shall be final. 

• Paragraph 6(2) states all proceedings under para 6(1) shall be deemed to be proceedings in Parliament/Legislature of a House within the meaning of Article 122/212.

 • Para 7 states that no court shall have jurisdiction in respect of any matter connected with the disqualification of a Member of a House.

 • A large number of petitions were filed before various High Courts as well as Supreme Court challenging the constitutionality of the 52nd Amendment. Supreme Court transferred to itself the petitions pending before the High Courts and heard all the matters together.

ISSUES RAISED-:

• Is the change made by the 52nd Amendment constitutionally valid? 
• Whether the Tenth Schedule inserted by the 52nd Schedule is constitutionally valid?
• Whether para 7 of Tenth schedule brings about a change in operation and effect Article 136, 226, 227 as written in Article 368(2)?
• Whether the non-compliance of provisions of Article 368 would render the whole bill ineffective or only the para 7 would be rendered ineffective and invalidated?
• Whether the term ‘final’ in Para 6 (1) bars judicial review?
•  Whether chairman/speaker satisfies the requirement of individual adjudicatory machinery?

CONTENTIONS OF APPEALENT-:

• The Petitioner contended that the Paragraph 7 of the Tenth Schedule make a change in chapter IV of Part V (Supreme Court) and Chapter V of Part VI (High Court) as it takes away the jurisdiction of Supreme court under Article 136 and the jurisdiction of High court under Article 226,227. So according to Article 368, if these things are changed then the Bill has to be ratified by the Legislatures of not less than one-half of the states before such amendment is presented to the President for assent.
• The Petitioner also contended that Paragraph 7 of the Tenth schedule takes away the power of Judicial Review as it stops a disqualified member to moved to the High Court or Supreme court in case of dissatisfaction from the decision of Chairmen/ Speaker.
• The Petitioner said that the very concept of disqualification for defection is violative of the fundamental values and principles under-lying Parliamentary democracy and violates an elected representative’s freedom of speech, right to dissent and freedom of conscience and is destructive of a basic feature of the Constitution. 
• 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.

CONTENTIONS OF REPONDENT-:

• The Respondent contended that the court’s jurisdiction under para 7 is not allowed by virtue of Article 122 and Article 212 which directs the court not to inquire into the proceedings of Parliament. • The Respondent further added that no question of judicial review would at all arise as the Speaker/chairman exercising power under Paragraph 6(1) of the Tenth Schedule function not as a statutory tribunal but as a part of state’s Legislative department.

JUDGEMENT-:

A few judges have stipulated that the constitutional scheme for decisions on the issue of exclusion of members after elections provides for such disputes to be decided by independent authorities outside the House. , Found to violate the basic characteristics of the Constitution. In the opinion of the Election Commission, that is, the president or governor, all of whom are high-ranking constitutional officials. The Election Commission expressed the same view as the minority judge in this case. There was a recommendation in 1977.

In the yr. 1977, it made guidelines and recommended that the disqualification on grounds of defection can also be cited the Election Commission for tendering opinion to the President or the Governor, because the case may also be, and the President or the Governor shall act on such opinion tendered through the Election Commission, because it turned into within side the case of different disqualifications cited in articles 102 and 191 of the constitution. 

It turned into hence held that the para 6 of the Tenth Schedule does now no longer introduce a non-justiciable area. The electricity to remedy the disputes of the Speaker/Chairman is a judicial electricity. The crucial production is that of the `finality clause` which paved a manner for almost all to attain the judgment.

ANALYSIS-:

The purpose of this case comment I have to make is to reflect the viewpoint expressed by the Supreme Court Judges in this case –

As a law student, I have to advise that Article 105(2), which deals with the privileges granted to Members of Parliament, isn’t absolute in nature, as was also stated in the National Commission for Constitutional Review’s report in 2002, which recommended that Article 105(2) be revised.

Second, notwithstanding the immunity granted to a member of the house, political desertion for the sake of power and money allurement is suggestive of corrupt activity.

• Analysing the Parties’ Arguments Critically:

The difference between ‘defection’ and’ split’ in the Tenth Schedule was so thin and artificial that the differences on which the distinction was based were devoid of logic, according to lawyers for petitioners. Upholding the counsel’s argument, the Court explained that the rule for exemption of split is justified in terms of the maximum amount as 1/3rd members at the same time cannot be driven by dishonest intentions, citing H.M. Seervai’s opinion: “Normally, governments aren’t toppled by a small number of defections, but by an outsized number of members of a celebration leaving it and/or going over to the party to which they have been opposed.”

• Another key point raised by the petitioners is that the ‘finality clause’ in paragraph 6 of the Tenth Schedule limits the court’s jurisdiction, making the speaker immune from Judicial Review. The majority in this case found that the Tribunal is the Speaker/Chairman under Paragraph 6(1) of the Tenth Schedule, and that the finality clause does not obliterate, but rather limits, the courts’ authority under Arts. 136, 226 and 227.

2. Ratio Decidendi – The essential creation of the “finality clause” offered a method for the majority to reach a decision, stating that the choice of the Chairman or, as the case may be, the Speaker of the House, is not conclusive.

3. Critically evaluating the benefits and drawbacks of anti-defection legislation

Anti-defection legislation has a number of advantages.

Corruption: The law aims to avoid political defections that may be motivated by a desire to satisfy the political masters of power, as well as circumstances that function as a deterrent to political bribes.

Political Certainty: Because of the ongoing trend of coalition administrations, the defection of a few MLAs/MPs might lead to the fall of a government due to personal malice and avarice.

Party Policy: If these candidates are elected, political decorum dictates that they follow the party’s policies and promote the party’s agenda rather than siding with the opposition.

Anti-defection laws have a number of drawbacks.

The Anti-Defection Law is blatantly anti-legislative freedom of speech and expression: The anti-defection statute infringes on this right by requiring all members to vote in precise accordance with Party Policy and to concur completely with party whips. This takes away a legislator’s ability to vote according to his or her conscience.

It also inhibits disagreement against the party’s positions and policies, unless it is done through an all-party forum.

Prohibition of dissent may jeopardize Parliament’s ability to serve as an effective check on the administration. This might put the government’s accountability in jeopardy.

Legislators are no longer accountable to the people: Legislators can now say that they voted a certain way because their political party forced them to. Their rationale is frequently that they have little control over their vote and hence should not be in command of it.

4. After thoroughly analyzing the rationale, I can conclude from the case that voting dissent has long been regarded as a sign of political turbulence and lack of cohesion. Every political party, without a doubt, would appreciate steadfast support for the current mandate. The Member’s commitment to the party is demonstrated by the fact that he or she must follow the Whip’s directives.

He/she could not, however, overlook the interests of his constituency in order to balance his/her interests. It is incorrect to consider such behavior to be disloyal to the party or to have a negative impact on the party’s cohesion. Members of the same political party may openly hold conflicting views on a given issue, and expressing those views may result in the revision or withdrawal of proposals under consideration. Such a result can only be attained if members express objection. Intra-party dissent and dialogues, both necessary components of intra-party democracy, are contingent on the leaders’ willingness to allow members to express themselves.

CONCLUSION-:

Dissenters are mostly in the minority within the confines of centralized political parties that are powerful enough to silence them through their ‘whips.’

According to Kihoto, there is room in Schedule 10 to address the concerns of dissidents.

However, a clearly delimited nurturing field within the purview of anti-defection measures must be provided in order to protect the talents for a functional democracy. The petitioners in Hollohan questioned whether it was fair for the Speaker to have such broad powers, considering the likelihood of bias.

“The Speakers/Chairmen hold a very significant as well as a diplomatic place in the system of Parliamentary democracy and are custodians of the House’s rights and privileges,” wrote Justices M N Venkatachaliah and K Jayachandra Reddy in the majority judgement.

According to the judiciary, this was the most least and maximal thing that could have been done to advance the anti-defection law’s wider aim. Judicial adventurism could be defined as any behavior that involves the merits of the disqualification petitions.

However, there are a few fundamental flaws with this method of instructing the Speaker to act in a time-bound manner. The first happens when the Speaker fails to adhere to the timeline established by the High Court.

Is it conceivable for the High Court to take plenary action in certain situations to ensure compliance?

Furthermore, what role would the plenary of parliamentary privileges have in stopping the Speaker from breaching the law?

These concerns must be addressed as soon as possible in order for the Speaker’s scheduling strategy to be effective.

However, after reading enough literature on judicial activism and adventurism, it is possible to conclude that judicial action is a result of the mischief rule of interpretation. It becomes adventurism when it is utilized excessively. While a successful revision to Schedule Paragraph 6 may provide answers to all of our questions, the current solution looks to be feasible for the time being.

REFERENCES-:

1. https://articles.manupatra.com/article-details/CASE-ANALYSIS-OF-KIHOTA-HOLLOHON-V-ZACHILHU-AND-OTHERS-WITH-CLOSE-REFERENCE-TO-ANTI-DEFECTION-LAW
2. https://byjusexamprep.com/liveData/f/2020/9/kihoto_hollohan_vs_zachillhu_and_ors_95.pdf

This Article is written by Rachna Ranjan student of Lloyd Law College (Greater Noida), Intern at Legal Vidhiya.

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.