KIHOTO HOLLOHAN VS ZACHILLHU AND OTHERS : CASE SUMMARY
The Supreme Court in Kihoto Hollohan Vs Zachillhu 1992 1 SCR 686 upheld 52nd Amendment of the Indian Constitution whereby 10th Schedule has been introduced in respect of disqualification of members of Parliament or Legislative Assemblies in cases of political defections.
Facts of the Case
Parliament vide 52nd amendment introduced 10th Schedule in the Indian Constitution introducing anti defection measures. 10th Schedule provided for disqualification of member of a House in case of voluntary giving up of membership of a Political Party or in case of voting contrary to direction of a Political Party or joining another Political Party. 10th Schedule also empowered the Speaker or Chairman of a House, as the case may be, to determine question of disqualification. Para 7 of 10th Schedule barred the jurisdiction of any Court in respect of disqualification of the member of a house.
52nd Amendment was challenged before the Supreme Court in this case in several transfer and petitions.
Whether 10th Schedule violates freedom of speech ?
It was contended before the Supreme Court that 10th Schedule violates freedom of speech, right to dissent and right to conscience which are essential democratic principles. The Supreme Court observed the freedom of speech of a member is not an absolute freedom. The provisions of 10th schedule do not intend to make a member liable to “court” for anything said or vote given in house. Rights and Immunities granted under Article 105 (2) can not be elevated to status of fundamental rights and 10th Schedule can not be struck down for being in violation of Article 19.
The Court noted that political party function on shared political belief. Voting contrary to view of the political party will embarrass its image and popularity. There may be circumstances where a member may vote or abstain from voting contrary to direction of political party, which has set up him as candidate and such circumstances have been accommodated. A member make take prior permission for such voting or his action may be condoned by Political Party.
The Supreme Court held that 10th Schedule does not violate freedom to speech or freedom to vote or freedom of conscience. The Court also held that 10th Schedule does not violate freedom under Article 105 and Article 194 of the Constitution.
Whether 10th Schedule violates Article 368 (2) of the Constitution ?
It was contended that para 7 of the 10th Schedule is violative of Article 136, 226 and 227 of the constitution. The Court noted that Para 7 although directly does not impact these provisions it curtails operations of these articles in respect of matters falling under 10th Schedule. As such, amendment would have required ratification of in accordance with Article 368 (2) of the Constitution.
The Supreme Court also held that only Para 7 is invalid and severed from other provisions of the 10th Schedule. Remaining provisions of 10th Schedule is constitutionally valid.
Is decision of Speaker subject to judicial review ?
The Court observed the office of Speaker is tribunal under Para 6 (1) of the Tenth Schedule. The Court held that there is exercise of judicial power when dispute involves a decision on rights and obligations of the parties to it.
The Supreme Court held that finality clause under Para 6 does not exclude power of judicial review under Article 136, 226 and 227 but scope of such judicial review is limited. The scope of such judicial review are limited to infirmities based on violation of constitutional mandate, malafides, violation of principles of natural justice and perversity.
Such judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman. Qua timet action will also not be permissible. Interference will also not be permissible at interlocutory stage of the proceedings.
Does office of Speaker pass the test of Independent and Impartial adjudicatory machinery ?
It was contended that determination of electoral disputes is essential feature of democracy. The Speaker does not have to resign to become speaker as such he can not be expected to be free from tugs and pulls of political polarizations.
The Supreme Court observed that office of Speaker is high and important in a democracy. The office of speaker can not be distrusted only because some of speakers have not maintained high standard.
What was the minority opinion ?
Minority opinion was tendered by Justice J. S. Verma wherein 52nd amendment was declared unconstitutional on the ground that there has not been ratification by states under Article 368 (2) of the Constitution. It was held that Para 7 cannot be severed and remaining provisions can be held constitutional in cases of constitutional amendments.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.
