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 52 nd 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).

Details Particulars

Name of the case Kihoto Hollohan vs Zachillhu And Others

Citation1992 SCR (1) 686, 1992 SCC Supl. (2) 651

Year of the case18 February, 1992

Appellant KIHOTO HOLLOHAN

Respondent ZACHILLHU AND OTHERS

Bench/Judges Sharma, L.M. (J), Venkatachalliah, M.N. (J), Verma, Jagdish Saran (J), Reddy, K.
Jayachandra (J), Agrawal, S.C. (J)

Acts involved Constitution of India Act,1950:

Important Sections/ Articles Articles 102(2), Article 122(1), Article212(1), Article 368,

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 52 nd 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
Sr. No Cases Referred Paras refereed

1. Air 1987 SC 663: (1987) 1 SCR 879 27

2. AIR 1987 Punj & Har 263 (FB) 8, 49

3. AIR 1971 SC 530 : (1971) 1 SCC 85 22

4. AIR 1971 SC 1093 : (1971) 3 SCR 483 34, 35, 41

5. AIR 1965 SC 745 : (1965) 1 SCR 413 3, 37, 42, 69, 73 3, 37, 42, 69, 73

6. AIR 1958 SC 578 38

7. AIR 1940 PC 105 22

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

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.

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.”

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.”