Kihoto Hollohan vs Zachillhu and Others
- ByPravleen Kaur --
- 02 May 2025 --
- 0 Comments
I. Introduction
The judgment pertains to the constitutional validity of the Constitution (Fifty-Second Amendment) Act, 1985, which introduced the Tenth Schedule to the Constitution of India. The Tenth Schedule, also known as the Anti-Defection Law, was enacted to combat the evil of political defections, which had become a matter of national concern. The judgment addresses various constitutional issues raised regarding the Tenth Schedule and its provisions.
II. Background
The judgment arose from a Transfer Petition (No. 40 of 1991) seeking the transfer of a Writ Petition (Rule No. 2421/90) from the High Court of Guwahati to the Supreme Court. The Writ Petition challenged the constitutional validity of the Constitution (Fifty-Second Amendment) Act, 1985. Several other related petitions, appeals, and matters were also heard together. [Paragraph 1]
III. Key Issues
The key issues addressed in the judgment were:
1. The constitutional validity of the Tenth Schedule, particularly Paragraph 7, which sought to exclude the jurisdiction of courts in matters related to the disqualification of members of Parliament or State Legislatures.
2. The applicability of the proviso to Article 368(2) of the Constitution, which requires ratification by at least half of the State Legislatures for certain amendments.
3. The impact of the Tenth Schedule on the basic features of the Constitution, such as parliamentary democracy, freedom of speech, and the rule of law.
4. The role of the Speaker or Chairman in adjudicating disputes related to disqualification of members and the potential for bias.
5. The interpretation of certain provisions of the Tenth Schedule, such as the meaning of "any direction" in Paragraph 2(1)(b) and the distinction between "defection" and "split" in Paragraph 3.
IV. Contentions and Arguments
The petitioners argued that the Tenth Schedule violated fundamental principles of parliamentary democracy, such as freedom of speech, dissent, and conscience. They contended that punishing elected representatives for crossing the floor negated democratic principles. [Paragraph 14, 15]
The respondents argued that the Tenth Schedule created a non-justiciable constitutional area dealing with complex political issues and that the exclusion of this area was constitutionally preserved. They claimed that the subject matter was not amenable to judicial power and that the Legislature was entitled to deal with it exclusively. [Paragraph 9]
The petitioners also argued that the distinction between "defection" and "split" in the Tenth Schedule was illogical. [Paragraph 21]
V. Findings and Conclusions
Validity of the Tenth Schedule
The Supreme Court upheld the constitutional validity of the Tenth Schedule, except for Paragraph 7, which was declared invalid. [Paragraph 11]
Paragraph 7 and Exclusion of Judicial Review
The Court held that Paragraph 7 of the Tenth Schedule, which sought to exclude the jurisdiction of courts in matters related to the disqualification of members, was unconstitutional. The Court reasoned that the finality clause in Paragraph 6(1) did not exclude the jurisdiction of the High Courts and the Supreme Court. [Paragraph 7, 33, 35]
The Court stated that the power of the Supreme Court could not be excluded by parliamentary legislation, and the exclusion of judicial review would be destructive of a basic feature of the Constitution. [Paragraph 35]
Applicability of the Proviso to Article 368(2)
The Court held that the Constitution (Fifty-Second Amendment) Act, 1985, was unconstitutional because it was not ratified by the required number of State Legislatures before being presented to the President for his assent, as mandated by the proviso to Article 368(2) of the Constitution. [Paragraph 3, 4, 29, 30]
The Court rejected the argument that the proviso to Article 368(2) excluded the doctrine of severability, which would have allowed the valid parts of the amendment to be upheld while striking down the invalid parts. [Paragraph 29]
Basic Features of the Constitution
The Court acknowledged that democracy and free and fair elections were essential features of the Constitution, and an independent adjudicatory machinery for resolving disputes related to members of the House was necessary. [Paragraph 8]
However, the Court rejected the argument that the investiture of determinative jurisdiction in the Speaker or Chairman to adjudicate disputes under the Tenth Schedule was violative of a basic feature of the Constitution. The Court emphasized the high status and impartiality of the office of the Speaker in a parliamentary democracy. [Paragraph 45, 46, 47]
Interpretation of Provisions
Regarding the interpretation of "any direction" in Paragraph 2(1)(b) of the Tenth Schedule, the Court stated that the disqualification imposed by this paragraph must be construed in a manner that does not unduly impinge on the freedom of speech of a member and prevents political defections motivated by the lure of office. [Paragraph 49]
The Court upheld the validity of the provisions distinguishing between "defection" and "split" in Paragraph 3 of the Tenth Schedule. [Paragraph 21]
VI. Operative Order
The Court allowed the Transfer Petition (No. 40 of 1991) and withdrew the Writ Petition (No. 17 of 1991) for the purpose of deciding the constitutional issues and declaring the law on the matter. The factual controversies raised in the Writ Petition were remitted to the High Court of Guwahati for disposal in accordance with the principles declared by the majority. [Paragraph 11, 52]
The Court declared the entire Constitution (FiftySecond Amendment) Act, 1985, unconstitutional, except for Paragraph 7 of the Tenth Schedule, which was struck down. All decisions made under the Tenth Schedule were declared null and void. [Paragraph 9, 10]
In-text citations: [Paragraph 1], [Paragraph 7], [Paragraph 9], [Paragraph 14, 15], [Paragraph 21], [Paragraph 3, 4, 29, 30], [Paragraph 8], [Paragraph 45, 46, 47], [Paragraph 49], [Paragraph 11, 52], [Paragraph 9, 10]
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