Kihota Hollohan v. Zachillhu, 1992 Supp (2) SCC 651

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Kihoto Hollohan vs Zachillhu And Others commonly referred 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 a new schedule (tenth schedule) elaborating various provisions to protect the parties from defection. The amendment happened in the year 1985 and followed by much uproar which ultimately led to filing a PIL and resulting into the decision in the year 1992 declaring the amendment completely legal with certain interpretation regarding judicial review.

The Anti-Defection Law

The Constitution (Fifty-Second Amendment) Act, 1985 which is popularly known as Anti-Defection Law came into force in March 1985. It amended various articles of the constitution regarding vacation of the seats and disqualification from membership of both the parliament as well as state legislatures. The amendment also inserted a new schedule (tenth schedule) to the constitution setting out various provisions detailing disqualification on the ground of defection.

In a nutshell, a member of the parliament or state legislature will be considered defected if he either voluntarily resigns from his party or disobeys the orders of the party leadership on any situation which involves voting. The members are thus prevented from voting against the direction issued by the party’s whip. Whip is referred as the official of any political party whose responsibility is to ensure party discipline in the legislature. The job of whip includes ensuring attendance of the party members and instructs them to vote for the party whenever the situation arises.

Defection as in the constitution has been defined as “To abandon a position or association, often to join an opposing group” which essentially describes a situation when a member of a particular party abandons his loyalty towards that party and provide his support (in the form of his vote or otherwise) to another party. The defection it was increasingly being realized, happened on crucial times (such as on the occasion of no confidence motion or getting the confidence of the house after forming the government etc) for some favour.

The reasons for the amendment of the constitution and addition of the tenth schedule is more aptly described in the statement of objects and reasons of the Fifty Second Amendment (1985) to the constitution in the following words –

“The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the address by the President to Parliament that the government intended to introduce in the current session of Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance.”

The anti-defection law raised many questions such as whether the law impinges upon the rights of free speech of the Members of parliament or members of the state legislators. Another prominent questions raised is should the law only be valid for those voting situation which determine the stability of the government (such as proving confidence after forming the government or no-confidence motion), should the final judgement on defection is to made by the presiding officer, etc.

The Judgement in Kihoto Hollohon vs Zachillhu and Others (1992) answers several of the questions and concerns regarding this law. While upholding the constitutional validity of this amendment, the court observed that the anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct…above certain theoretical assumptions”. The court finally held that the law does not violate any rights of free speech or basic structure of the parliamentary democracy.

Another important aspect of this judgment is the final decision making authority on declaring the defection. The court made it clear that the presiding officer is the one to make the decision and it is final subject to judicial review after the decision is pronounced and effected.

The anti-defection law enabled the political parties to have stronger grip on their members which many times has resulted into preventing them to vote for the lure of money of minister ship. However, it is also resulted into its unintended outcome i.e. the curtailing to a certain extent the role of the MP or member of state legislature. It is culminated into absence of constructive debates on critical policy issues. The whip has become all the more powerful and has to be followed in all circumstances.

Articles 102(2), 191(2, Tenth schedule inserted by constitution (Fifty-Second amendment) Act, 1985-Anti- defection law-Object and Constitutionality of. Tenth Schedule-Para 2-Members of Parliament/State Legislatures-Disqualification on account of defection- whether violative of rights and freedom envisaged by article 105. Para 2(1)(b)-expression "any direction"-Construction of-Whether whip/direction should clearly indicate that voting/abstention from voting contrary to it would incur disqualification.

Paragraph 6-Speakers/Chairmen-Power to decide disputed disqualification of a Member of a House-Nature of. Speakers/Chairman-whether act as tribunal and satisfy requirements of independent adjudicator machinery. `Finality' to orders of Speakers/ Chairmen; and immunity to proceedings under para6(1) analogous to Articles 122(1) and 212(1)-Whether excludes judicial review. Doctrine of necessity-Applicability of. Paragraph 7-Expression `no court shall have any jurisdiction in respect with the matter connected with disqualification of a Member of a House'-Whether bars jurisdiction of Supreme Court and High Courts under Articles 136, 226 and 227: whether required ratification envisaged by proviso to Article 368(2): whether can be severed from other

provisions of Schedule.Doctrine of severability-Applicability of.

687

Articles 122(1),212(1)-Proceedings in Parliament/State Legislature-Whether justiciable on ground of illegality or perversity. Articles 136, 226, 227-Orders under Paragraph 6-Scope of Judicial review-Whether confined to jurisdictional errors only.

Article 368-Constitutional amendment-Amending powers- Scope,object, nature and limitations explained. Extinction of rights and restriction of remedy for enforcement of right-Distinction between-Extinction of remedy without curtailing right-Whether makes a change in the right.

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