Kihoto Hollohan v. Zachillhu and Ors.

Kihoto Hollohan case referred to as the case where the constitution bench of the Supreme Court analyzed in detail the various provisions of the 52nd amendment of the constitution which inserted the Tenth schedule. The principal question before the Supreme Court in the case was whether the powerful role given to the Speaker violated the doctrine of Basic Structure — the judicial principle that certain basic features of the Constitution cannot be altered by amendments by Parliament, laid down in the landmark judgment in Kesavananda Bharati vs State Of Kerala (1973).

Introduction

India is closing in on nearly three decades of getting an anti-defection law effective . Inserted in the Constitution of India by way of the 52nd Amendment in 1985, the concerned law is enshrined in the Tenth Schedule (‘Schedule X’). India was spurred to introduce this law after witnessing as many defections in one year as it had in the four Lok Sabha preceding it.

The amendment was intended to bring stability to the structure of political parties and strengthen parliamentary practice by banning floor-crossing. The prior failure to affect this issue had to cause rampant horse-trading and corruption in daily parliamentary functioning. Schedule X was thus seen as a tool to cure this malaise.

The import of this constitutional measure meant that when a member was elected under the symbol of a party to Parliament, the member couldn’t later prefer to leave that party or switch to another party. Independent members of Parliament on the opposite hand would be liable upon moving to the folds of a party after the election.

Background

Some members of the Nagaland Legislative Assembly were disqualified by the Speaker of the Assembly under the Tenth Schedule to the Constitution of India, as inserted by the Constitution (Fifty-Second Amendment) Act, 1985, on the ground of defection. They challenged the order of the Speaker before the High Court of the State.  Several other similar orders of the Speakers of the Legislative Assemblies of Manipur, Meghalaya, Madhya Pradesh, Gujarat and Goa were also under challenge before the various High Court. The Supreme Court transferred all those matters to it and decided them in the present case.

The petitioners had challenged the constitutional validity of the Tenth Schedule to the Constitution on several grounds.  In particular, para 7 of the Tenth Schedule was challenged on the ground that that para had taken away the jurisdiction of all Courts, including the Supreme Court, to review the order of the Speaker under that Schedule.

Facts

• In this case, multiple petitions were heard together.

• So, the tenth schedule was inserted by the Constitution (Fifty-Second Amendment) Act, 1985.

• The combined petition aimed to challenge the Constitutional validity of the Tenth Schedule introduced by the Constitution (Fifty-Second Amendment) Act, 1985.

• These cases were brought amongst a batch of Writ Petitions, Transfer Petitions, Civil Appeals, Special Leave Petitions and other similar and connected matters raising common questions that were heard together.

• Four Articles of the Constitution were altered by the Constitution (Fifty-second Amendment) Act.

• These Articles are 101(3) (a), 102(2), 190(3)(a) and 191(2). Also, the tenth schedule was added. This Amendment is usually mentioned because of the Anti-Defection Law.

Issues

I. The Tenth Schedule to the constitution inserted by the constitution (Fifty-Second Amendment) Act, 1985, seeking to penalise and disqualify elected representatives is violative of the fundamental principles of Parliamentary democracy and is, therefore, destructive of the basic feature of the Constitution.

II.  Paragraph 7 of the Tenth Schedule in terms and effect brings about a change in operation and effect of Articles 136,226 and 227 of the Constitution and, therefore, the Bill introducing the amendment would require ratification as envisaged by the proviso to Article 368(2).

III. The non-compliance with the proviso to Article 368(2) would render the entire Bill vitiated and an abortive attempt to bring about a valid amendment or would Paragraph 7 alone be invalidated   with the application of the doctrine of severability.

IV. The Tenth Schedule created a new and non- justiciable constitutional area not amenable to curial adjudicative   process and whether Paragraph   6(1) in imparting a constitutional `finality’ to the decisions of Chairmen/Speakers, and paragraph 6(2) in the event of attracting immunity under Articles 122.

Related Provisions

Schedule X

 This succinct legislation contains 8 paragraphs- the primary beginning definitions, the second stating the disqualifications, the third (now deleted by the 2003 Amendment to the constitution) about splits within the party, the fourth a few disqualifications to not apply just in case of mergers, the fifth beginning certain exemptions.

The sixth and seventh- stating the one that would decide disputes and barring jurisdiction of courts in respect of questions concerning disqualification of a member, and eventually , the last paragraph enabling a Speaker to form rules for a House so as to offer effect to the provisions contained within the Schedule.

The Courts of the land are called upon to adjudicate upon and interpret most of these provisions. Perhaps the one clause that has come under the judicial microscope is para 2 that sets out the disqualifications of a member.

Related Cases

 Judgement

The minority judges held that the essential feature of the Constitution has been violated because the Constitutional scheme for decisions on questions on disqualification of members after being duly elected, contemplates adjudication of such disputes by an independent authority outside the House, namely President or Governor in accordance with the opinion of the committee , all of which who high Constitutional functionaries.

 The Election Commission had a similar opinion as that of the minority judges in the present case. In the year 1977, it made recommendations and suggested that the disqualification on grounds of defection could also be referred to the Election Commission for tendering opinion to the President or the Governor, because the case could also be, and

 The President or the Governor shall act on such opinion tendered by the Election Commission, as it was in the case of other disqualifications referred to in Articles 102 and 191 of the constitution.

 It was thus held that the para 6 of the Tenth Schedule does not introduce a non-justiciable area. The power to resolve the disputes of the Speaker/Chairman may be a judicial power. The important construction is that of the ‘finality clause’ which paved how for the bulk to succeed in the judgment.

Concepts Highlighted

The petitioners in Hollohan case argued whether or not it absolutely was truthful that the Speaker ought to have such broad powers, only if there’s continuously an affordable probability of bias.

The majority judgment authored by Justices M N Venkatachaliah and K Jayachandra Reddy answered this question within the affirmative:

“The Speakers/Chairmen hold an important position within the theme of commonwealth and square measure guardians of the rights and privileges of the House. they’re expected to and do take so much reaching choices within the commonwealth. Vestiture of power to adjudicate queries beneath the Tenth Schedule in them mustn’t be thought of unacceptable.”

• They added that the Schedule’s provisions were “statutory and meant to strengthen the material of Indian commonwealth by edge unprincipled and unethical political defections.”
•  What was the minority read on the Bench?
  dissentient Justice Lalit Mohan Sharma and J S Verma took a drastically totally different view: “The tenure of the Speaker, World Health Organization is that the authority within the Tenth Schedule to determine this dispute, relies on the continual support of the bulk within the House and, therefore, he doesn’t satisfy the need of such AN freelance judgement authority.”

Conclusion

1. The petitioners in Hollohan argued whether it was fair that the Speaker should have such broad powers, given that there is always a reasonable likelihood of bias.
2. The majority judgment authored by Justices M N Venkatachaliah and K Jayachandra Reddy answered this question in the affirmative: “The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far reaching decisions in the Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in them should not be considered exceptionable.”
3. They added that the Schedule’s provisions were “salutory and intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections.”

Questions

Q1. What was inserted by the 52nd amendment of the constitution?

Q2. What provisions were involved in the case of Kihoto Hollohan case?

Q3. What were the concepts highlighted in Kihoto Hollohan case?

Q4. what was the judgement given in Kihoto Hollohan Case?

Q5. What were the issues involved in Kiihoto Hollohan case?

References