February 8, 2023

Kihoto Hollohon v. Zachillhu- A Complete Anyalysis

The case of ‘Kihoto Hollohon v. Zachillhu, (1992)’ is a landmark case in constitutional history of India. It decided the fate of ‘52nd Constitutional Amendment, 1985’. This amendment added ‘10th Schedule’ into the constitution, which made the provisions regarding disqualification of member of Parliament, after his/her defection from his party.

Facts of the Case

Many petitions were filed, challenging the constitutional validity of Tenth Schedule on many grounds.

The matter was relating to disqualification on the ground of defection of some members of the Nagaland legislative Assembly under the Tenth Schedule, and, it was heard along with some other similar matters relating to several Legislative Assemblies including those of Manipur, Meghalaya, Madhya Pradesh, Gujarat and Goa, since all of them involved the decision of certain constitutional questions relating to the constitutional validity of the Constitution (52nd Amendment) Act, 1985.

It was urged that the very concept of disqualification for defection is violative of the fundamental values and principles underlying Parliamentary democracy and violates an elected representative’s freedom of speech, right to dissent and freedom of conscience and is, therefore, unconstitutional as destructive of a basic feature of the Indian Constitution.

It was also urged that the investiture in the Speaker or the Chairman of the power to adjudicate disputed defections would violate an important incident of another basic feature of the Constitution, viz., Parliamentary democracy. It was contended that an independent, fair and impartial machinery for resolution of electoral disputes is an essential and important incident of democracy and that the vesting of the power of adjudication in the Speaker or the Chairman-who, in the India Parliamentary system are nominees of political parties and are not obliged to resign their party affiliations after election-is violative of this requirement.

Another contention was that, the amendment did not attract the proviso to Article 368(2) [ratification by the states], then Paragraph 7 in so far as it takes away the power of judicial review, which, in itself, is one of the basic features of the Constitution is liable to be struck down. In view of the admitted non-compliance with proviso to Article 368(2) not only Paragraph 7 of the Tenth Schedule, but also the entire Bill resulting in the Constitution (Fifty-Second Amendment) Act, 1985, stands vitiated and the purported amendment is abortive and does not in law bring about a valid amendment.

Issues

The points involved may be summarised broadly as under: –

(A) Construction of para 6 of the Tenth Schedule. Its effect and the extent of exclusion of judicial review thereby.

“Para 6- If any question arises as to whether a member of a House has become subject to disqualification, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final.”

(B) Construction of para 7 of the Tenth Schedule. Its effect and the extent of exclusion of judicial review thereby.

7. Bar of jurisdiction of courts. Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.”

(C) In case of total exclusion of judicial review including the jurisdiction of Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution by the Tenth Schedule, does para 7 make a change in these Articles attracting the proviso to clause (2) of Article 368 of the Constitution?

(D) The effect of absence of prior ratification by the State Legislatures before the Bill making provisions for such amendment was presented to the President for assent, on the constitutional validity of the Tenth Schedule.

(E) Severability of para 7 from the remaining part of the Tenth Schedule and its effect on the question of constitutional validity of the Tenth Schedule.

(F) Violation of basic feature of the Constitution, if any, by the Tenth Schedule as a whole or any part thereof and its effect on the constitutionality for this reason.

(G) Validity of the Tenth Schedule with reference to the right of dissent of members with particular reference to Article 105.

“Section 105- — (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.

(2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.”

Analysis of the case

We will analyze the issues one by one.

(A) Construction of para 6 of the Tenth Schedule- Speaker is Tribunal

The main focus of the judgment was on ‘Speaker’s capacity of adjudication on the matters of disqualification’. (we have discussed it in separate article)

The majority and minority decision on this issue, was as follows-

Majority Decision

It was contended in the case that the finality clause ousted the jurisdiction of the court from deciding anything on disqualification.

Finality clause means, a clause in a provision which made the decision final by certain authorities. In para 6(1), the decision of the speaker is provided as final. So, the court discussed the legality of finality clause.

Justice Venkatchailaya said,

The finality clause with the word “final” in paragraph 6(1) of the Tenth schedule does not completely exclude the jurisdiction of the Courts under Articles 136, 226 and 227 of the Constitution. But it does have the effect of limiting the scope of the jurisdiction. If the intendment is to exclude the jurisdiction of the superior Courts, the language would quite obviously have been different.

The scope of judicial review under Articles 136, 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6 would be confined to jurisdictional errors only, viz., infirmities based on violation of constitutional mandate, mala fides, noncompliance with rules of natural justice and perversity. But Judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia-timet action would not be permissible.

Nor would interference be permissible at an interlocutory stage of the proceedings. Exceptions will, however, have to be made in respect of cases where disqualification of suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence.

Minority Decision

In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such dispute with no provision for any appeal or revision against the Speaker’s decision to any independent outside authority. This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution.

The Speaker being an authority within the House and his tenure being dependent on the will of majority therein, likelihood of suspicion of bias could not be ruled out

The tenure of the Speaker who is the authority in the Tenth Schedule to decide this dispute is dependent on the continuous support of the majority in the House and, therefore, he (the Speaker) does not satisfy the requirement of such an independent adjudicatory authority; and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature.

Consequently, the entire Constitution (Fifty- Second Amendment) Act, 1985 which inserted the Tenth Schedule together with clause (2) in Articles 102 and 191, must be declared unconstitutional or an abortive attempt to so amend the Constitution.

(B) Construction of para 7 of the Tenth Schedule.

Majority Decision

The proviso to Article 368(2) was introduced with a view to giving effect to the federal principle. In the present cases, though the amendment does not bring in any change directly in the language of Article 136, 226 and 227 of the Constitution, however, in effect paragraph 7 curtails the operation of those Articles respecting matters falling under the Tenth Schedule. There is a change in the effect in Article 136, 226 and 227 within the meaning of clause (b) of the proviso to Article 368(2). Paragraph 7, therefore, attracts the proviso and ratification was necessary.

Accordingly, on Point B, it was held:

“That having regard to the background and evolution of the principles underlying the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the constitution in terms and in effect bring about a change in the operation and effect to Articles 136, 226 and 227 of the Constitution of India and, therefore, the amendment would require to be ratified in accordance with the proviso to sub-Article (2) of Article 368 of the Constitution of India.”

The test of severability- B and C

The test of severability requires the Court to ascertain whether the legislature would at all have enacted the law if the severed part was not the part of the law and whether after severance what survives can stand independently and is workable. If the provisions of the Tenth Schedule are considered in the background of the legislative history, namely, the report of the `Committee on Defections’ as well as the earlier Bills which were moved to curb the evil of defection it would be evident that the main purpose underlying the constitutional amendment and introduction of the Tenth Schedule is to curb the evil of defection which was causing immense mischief in our body politic.

The ouster of jurisdiction of Courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedule if it has known that Paragraph 7 was not valid. Nor can it be said that the rest of the provisions of the Tenth Schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 can, therefore, be held to be severable from the rest of the provisions.

On the issues of `C’ and `D’, it was accordingly held:

“That there is nothing in the said proviso to Article 368 (2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the Amendment requires ratification from the rest of the provisions of such Bill which do not attract and require such ratification. Having regard to the mandatory language of Article 368(2) that ” thereupon the Constitution shall stand amended” the operation of the proviso should not be extended to constitutional amendments in Bill which can stand by themselves without such ratification.

That, accordingly, the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, to the extent of its provisions which are amenable to the legal-sovereign of the amending process of the Union Parliament cannot be overborne by the proviso which cannot operate in that area. There is no justification for the view that even the rest of the provisions of the constitution (52nd Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368(2) was not so ratified.

That Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and, therefore, is a severable part. The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7.

Minority Decision

The words in Paragraph 7 of the Tenth Schedule with its non-obstante clause `notwithstanding anything in this Constitution’ followed by expression `no court shall have any jurisdiction’, are very wide and ordinarily mean that this provision supersedes any other provision in the Constitution, and leave no doubt that the bar of – jurisdiction of Courts is complete excluding also the jurisdiction of the supreme court and the High courts under Articles 136, 226 and 227 of the Constitution respectively.

Further, the expression `in respect of any matter connected with the disqualification of a Member of a House under this Schedule’ is wide enough to include not merely the intermediate stage of the proceedings relating to disqualification but also the final order on the question of disqualification made under paragraph 6. This conclusion is reinforced by the finality clause and deeming provision in para 6 of the Tenth Schedule.

Para 7 of the Tenth Schedule is, therefore, unconstitutional and to that extent at least the Constitution does not stand amended in accordance with the Bill seeking to make the constitutional amendment.

(G) Right to Dissent

Para 2(1)(b) of the schedule restricts the right to dissent of elected members. This para is as follows-

2. Disqualification on ground of defection. — (1) A member of a House belonging to any political party shall be disqualified for being a member of the House—

(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf,

without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.”

The court’s views on the issue

The words “any direction” occurring in Paragraph 2(1)(b) of the Tenth Schedule require to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Schedule.

While construing Paragraph 2(1)(b) it cannot be ignored that under the Constitution, members of Parliament as well as of the State Legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the Constitution and the rules and standing orders regulating the Procedure of the House. The disqualification imposed by Paragraph 2(1)(b) must be so construed as not to unduly impinge on the said freedom of speech of a member.

This would be possible if Paragraph 2(1)(b) is confined in its scope by keeping in view the object underlying the amendments contained in the Tenth Schedule namely, to curb the evil or mischief of political defections motivated by the lure of office or other similar considerations.

The said object would be achieved if the disqualification incurred on the ground of voting or abstaining from voting by a member is confined to cases where a change of Government is likely to be brought about or is prevented, as the case may be, as a result of such voting or abstinence or when such voting or abstinence is on a matter which was a major policy and programme on which the political party to which the member belongs went to the polls.

For this purpose, the direction given by the political party to a member belonging to it, the violation of which may entail disqualification under paragraph 2(1)(b), would have to be limited to a vote on motion of confidence or no confidence in the Government or where the motion under consideration relates to a matter which was an integral policy and programme of the political party on the basis of which it approached the elaborate.

The voting or abstinence from voting by a member against the direction by the political party on such a motion would amount to disapproval of the programme of the basis of which he went before the electorate and got himself elected and such voting or abstinence would amount to a breach of the trust reposed in him by the electorate.

Keeping in view the consequences of the disqualification i.e., termination of the membership of a House; it would be appropriate that the direction or whip which results in such disqualification under Paragraph 2(1)(b) is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the disqualification under Paragraph 2(1)(b) of the Tenth Schedule so that the member concerned has fore-knowledge of the consequences flowing from his conduct in voting or abstaining from voting contrary to such a direction.

Reference

Kihoto Hollohon v. Zachilluhu (1992)