Kihoto Hollohan v. Zachillhu: Upholding the Constitution While Curbing Defection

Court: Supreme Court of India.

Case Name: Kihoto Hollohan v. Zachillhu

Citation: (1992) 1 SCR 686. [PDF]

Introduction

The case of Kihoto Hollohan v. Zachillhu is a landmark judgment that deals with the constitutional validity of the Tenth Schedule of the Indian Constitution, also known as the Anti-Defection Law. This law was introduced to curb political defections, which were seen as a threat to the stability of the parliamentary system.

The Tenth Schedule was added to the Indian Constitution in 1985 through the Constitution (Fifty-Second Amendment) Act. It lays down the process for disqualifying a member of Parliament or a State Legislature who defects from their political party. It also includes provisions for the role of the Speaker or Chairman of the House in deciding such matters, as well as the extent of judicial review.

This case is significant because it examines the balance of power between the judiciary and the legislature in India. The Supreme Court had to decide on the validity of the Tenth Schedule in light of challenges regarding its impact on judicial review, parliamentary privileges, and the freedom of speech of legislators.

Case Summary

1. The case arose from disputes regarding the disqualification of members of Parliament and State Legislatures under the Tenth Schedule. These disputes included challenges to the Speaker/Chairman’s decisions and the jurisdiction of the courts.
2. The Supreme Court examined the constitutional validity of the Tenth Schedule, particularly Paragraph 7, which attempted to exclude the jurisdiction of all courts in matters related to disqualification.
3. The court delivered a majority opinion that declared Paragraph 7 of the Tenth Schedule unconstitutional because it sought to change Articles 136, 226, and 227 of the Constitution and required ratification by state legislatures under Article 368(2).
4. The court held that the rest of the Tenth Schedule was valid and severable from Paragraph 7. This means the main provisions of the Anti-Defection Law remained in force.
5. A minority opinion held that the entire Tenth Schedule was unconstitutional, because Paragraph 7 could not be severed and also due to lack of ratification by the states.

Study guide

1. The Tenth Schedule (Anti-Defection Law): The Tenth Schedule was introduced to prevent political defections motivated by the lure of office or other similar considerations. It seeks to maintain the integrity of the democratic process by preventing unethical party switching by members of parliament.
2. Paragraph 7 and Judicial Review: Paragraph 7 of the Tenth Schedule attempted to exclude the jurisdiction of all courts regarding any matter connected with the disqualification of a member, but the court found this to be unconstitutional. This exclusion was deemed a change in Articles 136, 226, and 227.
3. Finality Clause: The "finality clause" in Paragraph 6(1) states that the Speaker or Chairman's decision on disqualification is final, but the court held that this does not completely exclude judicial review. Judicial review is still possible for violations of constitutional mandates, mala fides, non-compliance with natural justice, or perversity.
4. Distinction between "Right" and "Remedy": The court distinguished between the extinction of a right and the restriction of a remedy. If a right is extinguished, there is no basis for a grievance, but if the right remains while the remedy is curtailed, a grievance can still arise.
5. Doctrine of Severability: This doctrine allows a court to separate the valid parts of a law from the invalid parts, so long as the remaining parts can still function independently. The majority applied severability by striking down Paragraph 7 while upholding the rest of the Tenth Schedule. The minority did not apply it, striking down the entire schedule.
6. Grounds for Disqualification: A Member of Parliament can be disqualified if they voluntarily give up the membership of their political party or if they vote or abstain from voting against the party's direction without permission. The phrase "any direction" is interpreted to apply only to motions of confidence or no-confidence, and to major policy matters.
7. Role of the Speaker/Chairman: The Speaker/Chairman acts as a tribunal making quasi-judicial decisions regarding disqualification under the Tenth Schedule.
8. Article 368(2) and Ratification: Article 368(2) specifies the procedure for constitutional amendments. The proviso requires ratification by state legislatures for amendments that alter certain aspects of the Constitution. This case hinged on whether Paragraph 7 made a change to Articles 136, 226, and 227, thus requiring state ratification.
9. Validity of the Tenth Schedule: The majority concluded that Paragraph 7 was unconstitutional and severable from the rest of the schedule. The minority concluded that the entire schedule was unconstitutional because Paragraph 7 could not be severed, due to lack of proper ratification, and because the Speaker was made the deciding authority.

Rationale

1. The court noted that the Tenth Schedule was enacted to curb "the evil of unprincipled and unethical political defection". It aims to maintain the proprieties of political and personal conduct and is a statutory variant of the moral principle underlying the power of recall.
2. The interpretation of "any direction" in the Tenth Schedule was limited to matters that would lead to a change in government or that would go against the party's policy on which they were voted into power. This was to prevent undue impingement on the freedom of speech of members of the legislature.
3. The Speaker/Chairman was determined to be acting as a "Tribunal" while deciding on disqualification matters under the Tenth Schedule. A tribunal does not have to have all the trappings of a court to be considered a tribunal.
4. Paragraph 7 was held unconstitutional because it attempted to exclude the jurisdiction of all courts, including the Supreme Court and High Courts, thus bringing about a change in the operation of Articles 136, 226, and 227 of the Constitution. This change required ratification by state legislatures, which was not done, rendering Paragraph 7 invalid.
5. The "finality clause" in Paragraph 6(1) was not considered decisive in excluding judicial review. The court emphasized that judicial review is essential for maintaining the rule of law and protecting fundamental rights. The finality of a decision is subject to its consonance with the statute.
6. The legal fiction in Paragraph 6(2), which deems proceedings under Paragraph 6(1) as proceedings of parliament, attracts immunity similar to that of Articles 122(1) and 212(1), thus confining the fiction to irregularities of procedure, but not illegality.
7. The doctrine of severability was applied by the majority to separate the invalid Paragraph 7 from the rest of the Tenth Schedule. It was held that the main provisions of the Tenth Schedule can stand independently and are not truncated by the excision of Paragraph 7.
8. The court emphasized that the power to construe the meaning of the Constitution resides with the judiciary, not with any other authority. The judiciary has the power of judicial review to invalidate actions by the executive or legislative branches if they violate the constitution.
9. Judicial review of the Speaker’s/Chairman's decisions is limited to jurisdictional errors and includes infirmities based on violations of constitutional mandates, mala fides, non-compliance with rules of natural justice, and perversity. The review cannot be done prior to the decision of the speaker and there can be no quia timet action nor interlocutory interference, except in cases of disqualification or suspension during the pendency of proceedings.
10. The office of the Speaker is held in the highest respect in parliamentary traditions, and the vestiture of power to adjudicate questions under the Tenth Schedule in such a constitutional functionary should not be considered exceptional.

FAQ

Q.1. What is the Anti-Defection Law?

Answer: The Anti-Defection Law is the common name for the Tenth Schedule of the Indian Constitution, added in 1985 to curb political defections by members of Parliament and State Legislatures. It provides a mechanism for disqualifying members who switch parties or vote against their party's directions.

Q.2. What does the term ‘defection’ mean in Indian politics?

Answer: Defection refers to a member of a legislature switching their political party affiliation or voting against their party's direction.

Q.3. What is Paragraph 7 of the Tenth Schedule?

Answer: Paragraph 7 of the Tenth Schedule was a provision that attempted to exclude the jurisdiction of all courts regarding matters connected to the disqualification of a member of the House. This provision was declared unconstitutional by the court.

Q.4. What is Article 368(2) of the Indian Constitution?

Answer: Article 368(2) is the article in the Indian Constitution that outlines the procedure for amending the Constitution. It includes a proviso that requires ratification by the state legislatures for certain types of constitutional amendments.

Q.5. What is the doctrine of severability?

Answer: The doctrine of severability is a legal principle that allows a court to separate the valid parts of a law from the invalid parts, provided the remaining parts can still function effectively.

Q.6. What is a "finality clause" in the context of this case?

Answer: A finality clause is a provision in a law that states that a decision or order is final and not subject to further challenge or appeal. In this case, the finality clause in Paragraph 6(1) was interpreted not to bar judicial review completely, allowing it on certain grounds.

Q.7. What is judicial review?

Answer: Judicial review is the power of the courts to examine the actions of the legislative and executive branches of government and to declare those actions unconstitutional if they violate constitutional mandates.

Q.8. What is a "tribunal" in the legal context of this case?

Answer: A tribunal is an entity or authority that is vested with the quasi-judicial power to make decisions on specified matters but does not have all the characteristics of a traditional court. The Speaker/Chairman is considered a tribunal in this case.

Q.9. What does ‘ultra vires’ mean?

Answer: "Ultra vires" is a Latin term meaning "beyond the powers," referring to an action taken by an authority that exceeds its legal powers.

Q.10. What are 'mala fides' and 'perversity' in the context of this case?

Answer: "Mala fides" is a Latin term meaning "bad faith," referring to actions taken with ill intent or a dishonest purpose. "Perversity," in legal terms, means a decision or finding that is completely unreasonable or contrary to the evidence presented. Judicial review is permissible when there is a finding of mala fides or perversity.

Q.11. What is a Non-Obstante Clause?

Answer: A Non-Obstante Clause is a clause which declares that the provision it is attached to will have precedence over any other inconsistent provisions in the same law or other laws.

Q.12. What is a Quia Timet Action?

Answer: A Quia Timet Action is a legal action intended to prevent a possible future wrong. It is not permissible under the Tenth Schedule, and there can be no judicial review prior to a decision by the Speaker/Chairman.

Q.13. What are interlocutory orders?

Answer: Interlocutory orders are temporary orders issued by a court during the course of legal proceedings, often aimed at preserving the status quo until a final judgment. Interlocutory orders cannot be made in cases under the Tenth Schedule, except in cases of disqualification or suspension during the pendency of proceedings.

Q.14. What is the significance of the distinction between a "right" and a "remedy" in this case?

Answer: The court distinguished between the extinction of a right and the restriction of a remedy. If a right is extinguished, no grievance can arise. However, if a right remains while the remedy is curtailed, a grievance can still arise. This distinction was crucial in determining if a change was made to Articles 136, 226, and 227.

Q.15. What did the court conclude about the overall validity of the Tenth Schedule?

Answer: The majority concluded that Paragraph 7 was unconstitutional and severable from the rest of the schedule. The minority concluded that the entire schedule was unconstitutional because Paragraph 7, being inextricably linked to the overall purpose of the law, could not be severed, and also due to a lack of proper ratification, and the flawed manner of designating the Speaker as the deciding authority.

Conclusion

The Kihoto Hollohan v. Zachillhu case is significant because it upheld the constitutional validity of the Anti-Defection Law while clarifying the extent of judicial review over decisions made under it. The court’s decision struck down Paragraph 7 of the Tenth Schedule, emphasizing that any attempt to exclude judicial review requires adherence to the constitutional amendment process. The judgment also established the Speaker/Chairman as a quasi-judicial tribunal and clarified the scope of judicial review, thereby maintaining the delicate balance of powers between the legislature and the judiciary. This landmark case has had a lasting impact on Indian parliamentary democracy by curbing political defections while preserving the role of the judiciary in upholding constitutional principles.