Case Analysis of the Case of Kihoto Hollohon

NAME- Kihoto Hollohan Vs. Zachillhu Zachillhu and Ors. Equivalent Citation: AIR1993SC412 AIR1993SC412 JUDGES-M.N. JUDGES-M.N. Venkatachaliah, L.M. Sharma, J.S. Verma, K. Jayachandra Reddy and S.C. Agrawal, JJ. Issues Of The Case

In Kihoto Hollohan v. Zachillhu & Ors, 1.

it was contended that the provisions of the Tenth Schedule constitute a ‘flagrant violation’ of violation’  of those fundamental principles and values which are basic to the sustenance of the Parliamentary democracy. It negates the freedom of speech, right to dissent and freedom of conscience of our parliamentarians. They also contended that the Tenth Schedule impinges upon the rights or immunities under Article 105(2).

2. Paragraph 6(1) was challenged as it seeked to make the decision decision of the speaker final and immune from judicial review. According to Prof Wade the judicial control of legality of a decision taken under a statute which grants such ‘finality’ is ‘unimpaired .

Facts of the case Constitutional validity of the 52 nd amendment act 1985 - petition challenging insertion of 10th schedule to Constitution - para 7 of 10 Schedule which brings about change in operation of Articles 136, 226 and 227 made without ratification of State Legislature as  provided under Article 368 (2) invalid invalid - non observance of such condition precedent does not affect severability of Para 7 from other parts of amendment - 52nd amendment excluding para 7 valid -Para 2 of 10th  Schedule neither violate democratic rights of elected members nor freedom of speech and freedom of vote and conscience - Para 2 is not violative of Articles 105 and 194 - Speakers/Chairmen under 10th Schedule exercise power of Tribunal to adjudicate rights and obligations of elected members and their decisions amenable to judicial review

  - judicial review does not cover any stage prior to making decisions by Presiding Officers - interlocutory interference can be made when interlocutory disqualifications or suspension may have grave, immediate and irreversible repercussion and consequence concept of statutory finality of decisions of Presiding Officers in Para 6 (2) does not affect right of judicial review under Articles 136, 226 and 227 based on violation of constitutional mandates, mala fides, non-compliance with Rules of natural justice and perversity - deeming provision in Para 6 (2) woul attract immunity analogous to that of Articles 122 (1) and 212 (1) as explained in Kesav Singh's case.

1. Violation of the basic structure

The contentions raised and urged in terms of the violation of the basic structureare: 1.Fundamental Principles of Parliamentary Democracy, 2.Freedom of Speech and 3.The right to dissent and the freedom of conscience

Relevant Paragraphs

 Fifty-Second

Amendment)

Act,

1985,

in

so

far

as

it

 seeks to introduce the Tenth Schedule is destructive of the basic structure of the

constitution

 Parliamentary is

destructive

as

it

democracy, of

conscience

as

the

disqualify

elected

 freedoms

which

the

is a

violative basic

freedom

provisions

of

of

feature

of

speech,

of

the

Tenth

representatives

for

the

are

 Parliamentary democracy.

essential

to

the

the

fundamental

the

Indian

right

to

principles

of

constitutionalism

and

dissent

Schedule

seek

exercise

of

sustenance

and to these

of

the

freedom

of

penalise

and

rights

and

system

of

1. Constitutional law of the united State states that:2. The Constitution is a logical whole, each provision of which is an integral part thereof, and it is, therefore,, logically proper, and indeed imperative, to construe one part in the light of the provisions of the other parts.

cooley on constitutional limitation says :Upon the adoption of an amendment to a constitution, the amendment becomes a part thereof; as much so as if it had been originally incorporated in the Constitution; and it is to be construed accordingly.

 Relied

upon

certain

observations

of

Lord

Shaw

in Amalgamated Society or Railway Servants v. Osborne [1910 A.C. 87] to contend that a provision which seeks to attach a liability of disqualification of an elected Member for  freely expressing his views on matters of conscience, faith and political belief are indeed restraints on the freedom of speech - restraints opposed to public policy. In that case a registered trade union framed a rule enabling it to levy contributions on the Members to  support its efforts to obtain Parliamentary representation by setting up candidates at elections. It also framed a rule requiring all such candidates to sign and accept the conditions of the Labour Party and be subject to its whip.

 Indeed, in a sense an anti-defection law is a statutory variant of its moral principle and  justification underlying the power of recall. What might justify a provision for recall would justify a provision for disqualification for defection. Unprincipled defection is a  political and social evil. It is perceived as such by the legislature. People, apparently, have grown distrustful of the emotive political exultations that such floor-crossings belong to the sacred area of freedom of conscience, or of the right to dissent or of intellectual freedom. The anti-defection law seeks to recognise the practical need to  place the proprieties of political and personal conduct-- whose awkward erosion and  grotesque manifestations have been the base of the times - above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation. We should, we think, defer to this legislative wisdom and perception. The choices in constitutional adjudications quite clearly indicate the need for such deference. "Let the end be legitimate, let it be within the scope of the Constitution and all means

which are appropriate, which are adopted to that end..." are constitutional. [See  Kazurbach v. Morgan: 384 US 641].

that the Paragraph 2 of the Tenth Schedule to the Constitution is valid. Its  provisions

do

not

suffer

from

the

vice

of

subverting

democratic

rights

of

elected Members of Parliament and the Legislatures of the States. It does not violate

their

freedom

of

speech,

freedom

of

vote

and

conscience

as

contended. The Provisions of Paragraph 2 do not violate any rights or freedom under  Articles The

105

provisions

 Indian

are

and salutary

Parliamentary

194

of

and

are

intended

democracy

by

curbing

the to

Constitution.

strengthen

unprincipled

the and

 political The

they

of

unethical defections.

contention

exclusion

fabric

of

affect

that

the

Paragraph the

provisions 7,

democratic

violate rights

of the

of

the

Tenth

Schedule,

basic

structure

of

elected

Members

and,

even

the

with

Constitution

therefore,

of

the in the

 principles of Parliamentary democracy is unsound and is rejected.

 In the light of the decisions referred to above and the nature of function that is exercised by the Speaker/Chairman under paragraph 6, 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.PG NO. 35

The unanimous opinion according to the majority as well as the minority is that  para 7 of the tenth Schedule enacts a provision for complete exclusion of judicial review including the jurisdiction of the Supreme Court under Article 136 and of the High Courts under Articles 226 and 227 of the Constitution and, therefore, it makes in terms and in effect a change in Articles 136, 226 and 227 of the Constitution which attracts the

 proviso to clause (2) of Article 368 of the Constitution; and therefore, ratification by the  specified number of State Legislatures before the Bill was presented to the President for his assent was necessary, in accordance therewith. The majority view is that in the absence of such ratification by the State legislatures, it is para 7 alone of the Tenth Schedule which is unconstitutional; and it being severable from the remaining part of the Tenth Schedule, para 7 alone is liable to be struck down rendering the speakers' decision under para 6 that of a judicial tribunal amenable to judicial review by the Supreme court and the High courts under Article 136, 226 and 227. The minority opinion is that the effect of invalidity of para 7 of the Tenth Schedule is to invalidate the entire Constitution (Fifty- Second Amendment) Act, 1985 which inserted the Tenth Schedule since the President's assent to the bill without prior ratification by the State  Legislatures is non est.