Kihoto Hollohan v. Zachillhu
Supreme Court of India · 18 February 1992 · 5 judges · 1992 SCR (1) 686; 1992 SCC Supl. (2) 651
The majority upheld the Tenth Schedule (anti-defection law) except Paragraph 7, which was invalid for want of ratification and severable; Speakers' disqualification decisions are subject to limited judicial review.
Facts
The Constitution (Fifty-Second Amendment) Act, 1985 inserted the Tenth Schedule to curb political defections. Paragraph 2 disqualifies a Member who voluntarily gives up membership of his party or votes or abstains contrary to its direction; Paragraphs 3 and 4 exclude splits and mergers. Paragraph 6 makes the Speaker's or Chairman's decision final and deems the proceedings to be proceedings in the Legislature under Articles 122 and 212, and Paragraph 7 bars the jurisdiction of all courts. Many petitions from several Legislative Assemblies challenging the amendment were heard together. This judgment was given in a transfer petition seeking the withdrawal of a writ petition pending in the Gauhati High Court, and in Writ Petition No. 17 of 1991. Operative conclusions were pronounced on 12 November 1991 and reasons given on 18 February 1992.
Questions before the Court
- Did Paragraph 7, by excluding the jurisdiction of courts, require ratification by the States under the proviso to Article 368(2), and if so was the whole amendment void or only Paragraph 7?
- Is Paragraph 2 valid, or does it violate Members' freedom of speech, vote and conscience, Articles 105 and 194, or the basic structure?
- Do the finality clause in Paragraph 6(1) and the deeming provision in Paragraph 6(2) exclude judicial review of the Speaker's decision?
- Does vesting the power to decide disqualification in the Speaker or Chairman vitiate the scheme for likelihood of bias?
What the Court held
- Paragraph 7 in terms and in effect changes the operation of Articles 136, 226 and 227, so the amendment required ratification under the proviso to Article 368(2). Paragraph 7, not having been ratified, is invalid; on this the Court was unanimous.
- The proviso does not prevent severance. Paragraph 7 is independent of the rest of the Tenth Schedule, which stands without it and did not need ratification, so only Paragraph 7 fails.
- Paragraph 2 is valid. It does not violate Members' freedom of speech, vote or conscience, or Articles 105 and 194, and the Tenth Schedule does not violate the basic structure. The distinction between defection and split is not arbitrary.
- Speakers and Chairmen deciding disqualification act as tribunals exercising judicial power. Finality under Paragraph 6(1) is valid but does not bar review under Articles 136, 226 and 227 for violation of constitutional mandates, mala fides, non-compliance with natural justice and perversity. Paragraph 6(2) protects only against mere irregularities of procedure.
- Judicial review is not available before the Speaker's decision and quia timet actions are not permitted, except for interlocutory disqualification or suspension with grave, immediate and irreversible consequences. Vesting the power in the Speaker is not vitiated by likelihood of bias.
- 'Any direction' in Paragraph 2(1)(b) is confined to votes on motions of confidence or no confidence or on matters integral to the party's policy and programme, and the whip should clearly state that disobeying it will incur disqualification.
Why it matters
The majority upheld the anti-defection law while striking down the ouster of courts in Paragraph 7 for want of ratification and applying severability to a constitutional amendment. It held that Speakers act as tribunals, and fixed the grounds and the stage at which their disqualification decisions can be judicially reviewed. It also confined the party whip ground in Paragraph 2(1)(b), by harmonious construction, to votes on confidence or no confidence motions or on matters integral to the party's policy and programme.
In the Court's words
Copied from the official judgment; each passage links to its page.
“In the light of the decisions referred to above and the nature of function that is exercised by the Speaker/Chairman under paragraph 6, the scope of judicial review under Articles 136, 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under paragraph 6 would be confined to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.”
“It is, therefore, inappropriate to claim that the determinative jurisdiction of the Speaker or the Chairman in the Tenth Schedule is not a judicial power and is within the non-justiciable legislative area.”
“Indeed, in a sense an anti-defection law is a statutory variant of its moral principle and justification underlying the power of recall. What might justify a provision for recall would justify a provision for disqualification for defection. Unprincipled defection is a political and social evil. It is perceived as such by the legislature.”
“It would, indeed, be unfair to the high traditions of that great office to say that the investiture, in it of this Jurisdiction would be vitiated for violation of a basic feature of democracy. It is inappropriate to express distrust in the High office of the Speaker, merely because some of the Speakers are alleged, or even found, to have discharged their functions not in keeping with the great traditions of that high office.”
Provisions interpreted
Related judgments
Case and bench
- Parties
- Kihoto Hollohan v. Zachillhu
- Case
- Transfer Petition (Civil) No. 40 of 1991 with Writ Petition (Civil) No. 17 of 1991
- Decided
- 18 February 1992
- Bench
- Venkatachalliah, M.N. (J), Sharma, L.M. (J), Verma, Jagdish Saran (J), Reddy, K. Jayachandra (J), Agrawal, S.C. (J)
- Opinions
- Majority 3:2. Venkatachaliah, J. gave the majority opinion for himself, K. Jayachandra Reddy and S.C. Agrawal, JJ. Verma, J. gave the minority opinion for himself and L.M. Sharma, J., holding the whole Fifty-Second Amendment invalid for want of ratification and the Speaker not an independent adjudicator.
Questions on this case
4 questions in live Law Maker papers mention this case. A few from free papers:
Question 1 · Landmark Judgments Practice Set 1
Consider the following statements regarding Kihoto Hollohan v. Zachillhu (1992): 1. Paragraph 7 of the Tenth Schedule was held invalid for want of ratification under the proviso to Article 368(2). 2. Because Paragraph 7 was not ratified, the whole of the Constitution (Fifty-second Amendment) Act, 1985 was held invalid. 3. The Speaker or Chairman, while deciding questions of disqualification under the Tenth Schedule, acts as a tribunal whose decisions are amenable to judicial review. Which of the statements given above is/are correct?
- A. 1 and 3 only
- B. 2 and 3 only
- C. 1 only
- D. 1, 2 and 3
Show the answer
A. 1 and 3 only
The majority held that Paragraph 7, which barred the jurisdiction of courts, changed the operation of Articles 136, 226 and 227 and therefore needed ratification under the proviso to Article 368(2); not having been ratified, it was invalid. Paragraph 7 was severable, so the rest of the Tenth Schedule survived, which makes statement 2 wrong. The Speaker or Chairman acts as a tribunal and the decision is subject to judicial review.