Case Commentary Kihoto Hollohan vs Zachillhu And Others Supreme Court of India by- Saahen Sharma
Case Commentary
Kihoto Hollohan vs Zachillhu And Others
Supreme Court of India
Authored by- Saahen Sharma
Equivalent citations : 1992 SCR (1) 686,
1992 SCC Supl. (2) 651
Bench: Sharma,
L.M. (J), Venkatachalliah, M.N. (J), Verma, Jagdish Saran (J), Reddy, K. Jayachandra
(J), Agrawal, S.C. (J)
Overview of the Case
The
case relates to the anti-defection law and the petition involved in this case
was instituted in response to the Fifty-Second Amendment of the Constitution
passed in 1985.
As
per the Constitution (Fifty-Second Amendment) Act, 1985, the tenth schedule was
inserted which laid down the terms for the disqualification of a member of
either house of the Parliament or the state legislature, who has defected from
being a Member of the House.
As per the second paragraph of the tenth schedule, a member of a house would ensure disqualification if—
As per the second paragraph of the tenth schedule, a member of a house would ensure disqualification if—
(a)
He voluntarily gives up his membership in the
party through which he became a candidate at the elections.
(b)
If he without obtaining the prior
permission of his belonging party votes or abstains to vote, which acts
contrary to any direction issued by the party, where such a vote has not been
accepted by the party within 15 days of such vote or abstention.
(c)
If the member gets so elected, who was set
up by any political party joins a different political party after the election?
(d)
If the nominated member joins any other
political party after the expiry of six months from the date, he took his seat
in the parliament/state assembly.
Now,
paragraph 6(1) of the schedule states that the question of disqualification
shall be put in front of the Chairman/Speaker of the House for a decision,
where his decision would be final and cannot be challenged.
Furthermore,
paragraph 7 states that no court shall have jurisdiction in respect of any
matter connected with the disqualification of the member of the House.
This
schedule thus attracted many petitions before various high courts and the Supreme
Court challenging the constitutional validity of the amendment. [1]
The Main Issue of the Case
The
petitions filed were mainly because paragraph 7 of the Tenth Schedule aimed to
make a change in Chapter IV of Part V and Chapter V of Part VI of the
Constitution since it takes away from the Supreme Court and the High Courts the
jurisdiction and power laid down in Art
136 and Art 226 and 227 of the constitution and takes away the court’s power of
judicial review and that the very concept of a disqualification a member for
defection is violative of the fundamental values and principles underlying
parliamentary democracy and violates a member’s freedom of speech, right to
dissent and is destructive of a basic feature of the Constitution.
Additionally, paragraph 7 brings a change in operation and effect articles 136,
226, and 227 which would require ratification as per article 368, where non-compliance
of the same would render the entire Bill vitiated which would invalidate paragraph
7, which as contended failed adherence to. [2]
Thus,
the Tenth Schedule of the Constitution inserted by the Constitution (Fifty-Second
Amendment) Act, 1985, which seeks to penalize and disqualify elective
representatives for defecting from the party is violative of the fundamental
principles of parliamentary democracy and is thus violative of the basic
feature of the Constitution. [3]
Dissenting Opinion
The
dissenting opinion was delivered by Justice Lalit Mohan Sharma and Justice
J.S. Verma
The
dissenting opinion so delivered is presented below
The
amendment act without ratification, as mandatorily required by art 368(2) of
the constitution the stage of presenting the amendment bill for the assent of
the president did not reach the so-required assent and thus the so-called
assent was not established. Now, in the absence of ratification, it is not
merely paragraph 7 but the entire 52nd Amendment Act, which shall be rendered
unconstitutional. The constitutional power as mandated in Article 368 of the
Constitution was not invoked and thus the Constitution cannot be considered to
stand amended following the requirements for a Bill to become an Act.
J.Verma
and J.Sharma further opined that the doctrine of severability cannot be applied
to a Bill making a Constitutional amendment where any part falls under clause
(2) of Article 368 which states that an amendment may be initiated only by the
introduction of a Bill in either House of the Parliament and would become an
act only when given assent by the President unless as per sub-clause(b) the
bill seeks to make any change in Chapter IV of Part V, Chapter V of Part VI, or
Chapter I or part XI, would require to be ratified by the legislature of not
less than one-half of the states by resolution. The non-adherence to the
mandatory language of Art 368 should therefore vitiate the amendment.
Furthermore,
the Speaker’s decision to disqualify a Member as per the Tenth Schedule is not
immune from judicial scrutiny, it is thus an act that is legally void, and liable
to be ignored.[4]
The
democratic system envisages an independent adjudicatory authority responsible
for resolving disputes related to the competence of a Member of the House.
Justices state that the Speaker whose tenure is dependent on the continuous
support of most of the House cannot be considered an impartial authority and
does not satisfy the requirement of an independent authority. Thus, the
finality and single-minded choice of the Speaker as the Sole arbiter in such
matter is violative of an essential part of the basic feature of the
Constitution.
Thus,
as per their opinion, the entire 52nd amendment Act shall be declared
unconstitutional and thus all decisions passed by the Speakers must be
considered null and void[5].
The Majority Opinion and the Judgement
of the Supreme Court
The
operative majority opinion was delivered as per Justice Venkatachaliah. J,
Jayachandra Reddy. J and Agrawal. J is as explained below-
The
court opines that paragraph 7 of the Tenth Schedule contains a provision that
is independent of and stands apart from the main provisions of the Tenth
Schedule. The provision intended to provide a remedy for the unprincipled and
unethical defection is separate and is thus a severable part. The remaining
part of the Tenth Schedule stands independent of paragraph 7. Thus, even if paragraph
7 requires ratification it cannot be justified that the rest of the provision
of the amendment becomes constitutionally infirm all because one severable and
independent provision failed to undergo ratification.
Furthermore,
the contention that the provision even when paragraph 7 is excluded, violates
the basic structure due to the reason that they affect the democratic right of
the elected member, and the principle of parliamentary democracy is unsound and
rejected. The provisions do not violate any rights or freedom under articles
105 and 194 and the provisions are salutary and intended to strengthen the
Indian parliamentary system by curbing the unethical practices of defection.
The
Speakers, and Chairman while exercising their powers act as Tribunal
adjudicating rights and obligations and thus their decisions are within the
ambit of being amenable to judicial review. However, keeping in mind, the
Constitutional Scheme, the judicial review, having regard to the status of the
repository of the adjudicatory power, no actions that wrongfully restrain or
are ‘quia timet’ shall be permissible and cases of interlocutory
disqualifications and suspension are liable to interference. [6]
Paragraph
6(1) seeks to impart finality to such decisions of the Speaker/Chairman, which
stands valid, but the concept of statutory finality does not detract from or
does away from judicial review under Art 136, 226, and 227 so far as
infirmities based on violations of constitutional mandates and noncompliance
with Rules of Natural Justice and perversity are concerned.
Further,
the court stated that the contention that entrusting the Speaker/Chairmen would
itself vitiate the decision based on the likelihood of political bias is
unsound. The Speaker/Chairmen hold pivotal positions in the Parliamentary
democracy and are the guardians of the rights and privileges of the House, they
are expected to take decisions in the interest of Parliamentary democracy. Thus,
the vitiating of decisions taken by the Speaker based on arbitrariness and likelihood
is unsound and is rejected.
Thus,
the court in concluding their opinion stated that it is unnecessary and
incorrect to pronounce that paragraph 7 of the Tenth Schedule of the Amendment
Act violates the principles of judicial review and thus violates the basic
structure of the constitution. [7]
Case Comment
Now,
looking at the law established via the 52nd amendment, the court’s reasoning
for the same seems somewhat biased toward the validity of the Tenth Schedule.
The majority opinion states that paragraph 7 of the Schedule is in essence
independent of and stands apart from the other provisions of the schedule. Looking
at the schedule, we fail to see any such declarations being made by the
Amendment Act, nor do we see a clause that states that paragraph 7 should be
interpreted in an individual capacity. The court’s reasoning that just one
provision of the entire schedule stands apart from the rest when no such
declarations have been made by the Act seems to be without basis. The one
paragraph that stands apart just happens to be paragraph 7 which through its
text, bars the courts from having jurisdiction in respect of any matter
connected with the disqualification of a member of a house, which overreaches
to bring a change in Chapter IV Part V and Chapter V part VI. Such a change
should require ratification of the Amendment Bill before it becomes an Act,
something the legislature failed to conduct. A reading of the reasoning
presented by the majority opinion regarding the same paints a picture that the
judiciary, to preserve the validity of the entire Amendment Act, separated the
one provision that required ratification for the Bill to become an Act.
Paragraph 7 gaining this status of independence allows the courts to severe it
from the rest of the Amendment, resulting in the invalidation of the said
paragraph but a validation of the rest of the Amendment. I thus fail to see the
fundament behind the reasoning of the court for their reasoning.
Furthermore,
the court in its judgment states that just because the post of a
Speaker/Chairmen is of an elected individual, whose tenure is directly dependent
on pleasing and gaining the votes of the majority of the House, it cannot be
said that their decisions would be biased. The Speaker of the House is one of
the most important positions in the Indian Parliamentary system. He is
responsible for the decorum of the House and is the overall coordinator of all
parliamentary debates. In such a position where your tenure is directly dependent
on your popularity and ability to gain the maximum votes from the members of
the House, it is reasonably difficult to deliver decisions regarding the
defection of your voters in an unbiased manner. Given the current paradigm of
Indian Society where officials at the highest level are corrupt and the Houses
of Parliament are predominantly controlled by one party, it is difficult to
disregard the bias that could arise regarding the defection status of a popular
leader decided by the Speaker. Given the arduous task of introducing judicial review
in such decisions, it is hard to believe that the Speaker would give an
unbiased opinion against the very members who are responsible for electing him
as speaker.
Additionally,
given the scenario of the political crisis in states like Maharashtra, it can
be said that the current paradigm of anti-defection law has failed to shore up
the stability of elected governments. Considering the recent debacle of Shiv
Sena Leader Eknath Shinde defecting from the party it can be said that the
Amendment Act has had deleterious and undesired consequences regarding the
defection status of Members of the House. Not only have governments fallen due
to defection, but the defectors have not suffered any cautionary consequences.
The current law allows for the Speaker to singlehandedly rule over the defection’s
proceedings, the beneficiary party can accelerate the proceedings using money
and third-party agencies to facilitate the two-thirds threshold. Additionally,
the voters also don’t seem to be interested in the furnishing of justice by
voting correctly against the defectors. Agreeing with Ruchi Gupta’s arguments
from her article ‘The crisis in Maharashtra shows the anti-defection law to
be ineffective, even counterproductive, it is obvious that politicians are
adept at subverting the institutional processes to benefit their ends, with there
being a high probability for payoffs in support of the defectors[8].
Considering the Eknath Shinde case, where petitions by the MLAs of the Assembly
were shut down since Shinde and his supporters could claim that they would not
be subject to penalization for defecting since they represent the two-thirds of
the Shiv Sena’s strength and thus claim protection under the anti-defection
law. In concurrence with Ruchi Gupta’s opinion, the current legislation
revolving around the anti-defection law undermined not just the very principle
of representation by disregarding proper and honest representation and instead
blindly favoring the party’s stand has contributed to polarization in India by
making it impossible to construct a majority on any issue outside party
affiliation. The current anti-defection law instead of providing stability has
facilitated the undermining of the democratic process and thus it is time the
legislature makes a change to the anti-defection law. [9]
Conclusion
This case legislates upon the
validity of the 52nd Amendment Act of the Constitution. Petitions
challenging the constitutional validity of the Amendment Act were received from
across the country. The main contentions of the case revolved around paragraph
7 and paragraph 2 of the Tenth Schedule of the Amendment, where paragraph 2
conferred upon the speaker the power to decide and preside over the decision
regarding the anti-defamation status of a member of the House, giving the
speaker absolute power over the decision, where his decision shall hold
finality and shall not be subject to external review. Further paragraph 7
conferred that in determining the defection status of a member of the House,
the courts shall not have the power to intervene in any decision. The
provisions were challenged on the basis that they violated the basic feature of
the Constitution since the provisions took away the freedom of speech and the
right to dissent and due to the reasons that proper procedure involved in
passing of a Bill to make it an Act were not followed. The Court opined that
the paragraph 2 did not in any way inhibit or impact the freedom of speech or
the right to dissent. Furthermore, it was observed that paragraph 7 required
ratification, and in the absence of which it was held to be unconstitutional.
The said paragraph was further held to be severable form the rest of the
Schedule, due to which the rest of the Schedule and the Act were held
Constitutionally valid. The other contentions like the Speaker would not be
able to deliver unbiased and fair decisions and that imparting finality to the
Speaker’s decision would violate the concept of judicial review were shut down.
All in all the Schedule was declared constitutional while removing paragraph 7
from the Schedule on the pretext that it failed to undergo ratification.
[3] Ibid
[5] Ibid
[6] Ibid
[8] Gupta, Ruchi. “Ruchi Gupta Writes:
The Crisis In Maharashtra Shows The Anti-Defection Law To Be Ineffective, Even
Counterproductive.” The Indian Express, June 27, 2022.
Https://Indianexpress.Com/Article/Opinion/Columns/Maharashtra-Political-Crisis-Anti-Defection-Law-Ineffective-7992778/.
[9] Ibid