Kithota Hollohan V. Zachillhu, AIR 1993 SC 412

AUTHOR: ANIRUDH YADAV, UNIVERSITY FIVE YEAR LAW COLLEGE

BACKGROUND OF THE CASE

A constitution can be defined as a written document containing rules, laws and regulations in order to govern a country. The Indian Constitution is considered as the supreme or “grundnorm” law of the land. Its preamble is about the sovereignty of people, democratic polity, justice, liberty, equality and fraternity assuring the dignity of the individual and the unity and integrity of the nation. The Preamble is said to be adopted from Nehru’s principles which became the basis of the formation of the constitution. After the constitution was created, it did not take long for political functionaries to manipulate Indian framers. Following the departure of Nehru, the country witnessed a fall in political morality and an unfortunate growth of varying types of political corruption. The unruly floor crossing was a blow to the electorate system and undermined the three organs of the government. Greed for power, position and money were behind these defections. The observation made was that disturbance of the socio-economic processes has a devastating impact on cultural processes in politics. It was thus discouraged and attempts were made to eradicate this through the Constitutional Amendment Bills of 1973 and 1978. In early 1985, however, the government initiative gaining the opposition support worked and the Parliament enacted the Constitution (Fifty-Second Amendment) Act outlawing defections to maintain democratic structure. The reason the author is writing this paper is to analyse the views expressed by the Supreme Court judges in this case.

CASE DETAILS :

  1.  COURT – Supreme court of india
  2. CITATION- 1992 SCR (1) 686, 1992 SCC Supl. (2) 651
  3. CASE TITLE – Kihoto Hollohan vs Zachillhu And Others
  4. APPELANT- KIHOTO HOLLOHAN  
  5. RESPONDENT- ZACHILLHU AND OTHERS  
  6. BENCH- Sharma, L.M. (J), Venkatachalliah, M.N. (J), Verma, Jagdish Saran (J), Reddy, K. Jayachandra (J), Agrawal, S.C. (J)

INTRODUCTION AND BACKGROUND OF JUDGEMENT–

  1. In the case of Kihoto Hollohan vs. Zachillhu, it was contended that the anti-defection law is incompatible with freedom of speech, dissent, and conscience. The Supreme Court concluded that the statute is intended to handle unprincipled defections that are not protected by freedom of conscience, right to dissent, or intellectual liberty. As a result, while this rule has certain unintended implications, it is vital in today’s world when dealing with political issues. The decision in Kihoto Hollohon vs. Zachillhu and others addresses a few questions and problems raised by this law. The court subsequently decided that the law did not violate any free speech rights or the parliamentary popular government’s essential structure.
  2. The court emphasized that the managing official is the lone person with authority over the selection, and that the final decision is contingent on legal audit once the selection is defined and affected.
  3. It was held in the case of Ravi S Naik v. Union of India2 that “deliberately abandoning membership has greater significance.” A conclusion can also be made from the member’s regulation that he has voluntarily renounced his party membership.” The Court rejected the argument that failing to comply with the disqualification conditions constituted a violation of constitutional obligations. Elevating norms to the status of constitutional provisions, they believed, should be disallowed. The disqualification rules were devised by the Speaker in the exercise of his responsibilities under Article VIII of the Constitution, hence they cannot be compared to constitutional regulations.

FACTS OF THE CASE-

  1. In this situation, many applications were heard at the same time.
  2. In the case of Kihota Hollohon v. Zachilhu and Ors., the validity of the Tenth Schedule established by the Constitution (Fifty Second Amendment) Act, 1985 was questioned. The Constitution (Fifty-second Amendment) Act replaced four articles of the Constitution with the tenth schedule, namely 101(3)(a), 102(2), 190(3)(a).
  3. In a 3:2 decision, the Supreme Court confirmed the Anti-Defection Law’s constitutional constitutionality. The majority was made up of Justices M.N. Venkatachaliah, K.J. Reddy, and S.C. Agrawal, while the minority was made up of Justices L.M. Sharma and J.S. Verma.
  4. At the same time, the Supreme Court determined that the speaker’s orders under the legislation prohibiting an MLA from serving due to defection are subject to Judicial Review.

E) LEGAL ISSUES RAISED –

  1. Is it true that the Speaker should have such broad powers only if there is always a reasonable chance of prejudice?
  2. Are the modifications to the 52nd Amendment constitutionally valid?
  3. Whether or not Judicial Review is available before a decision is made by the Speaker/Chairman.
  4. Does Judicial Review apply to the Rules outlined in the tenth schedule.

ARGUMENTS OF THE PETITIONERS

  1. The petitioners contended that every person in the Parliament must have the right to follow his own spirit and sense of judgment and not necessarily with the policy of his political party. This according to the petitioners is deemed to be a fundamental principle of parliamentary democracy, freedom of speech and the right to dissent and the freedom of conscience.
  2. The right of a parliamentarian is not an absolute right and is thus can be subjected to reasonable restrictions. The right of a parliamentarian to the freedom of speech is provided for under Article 105(2). This, as contended by Shri Sharma, arguing on the side of the petitioners, is places even above the fundamental right as guaranteed under Article 19(1)(a) of the Constitution. Political defections induced to grab power and money is also a corrupt practice, and therefore does not fall within the immunity granted to a member of the house.
  3. Another contention raised by counsel for petitioners is that the distinction between ‘defection’ and ‘split’ in the Tenth Schedule is very minimal. The differences on which the distinction rests are indeed outrageous defiance of logic. In response to the arguments made by the petitioners, the Court gave the opinion that the rule for exemption of split is advocated for because of the fact that 1/3rd members at the same time cannot be driven towards dishonest intentions.
  4. The petitioners also referred to paragraph 7 to substantiate the point that in terms and in effect brings about a change in the operation and effect of Articles 136, 226 and 227 thus attracting the clause (2) of the Article 368 needing ratification. The court after looking at it has given an opinion that the words of paragraph 7 have wide interpretations and leave no viable choices. The same idea is reinforced by going through the history of the defection law and the debates in the house which suggests that paragraph 7 was introduced with the very purpose of restricting jurisdiction. The court has distinguished the present case from the cases of Shankari Prasad Singh Deo v. Union of India and State of Bihar[1]and Sajjan Singh v. State of Rajasthan[2] that were relied upon to urge that there is no relation to the clause (2) of the Article 368.
  5. The petitioners claimed that the ‘finality clause’, under the paragraph 6 of the 10th Schedule, excludes the court’s jurisdiction which made the speaker immune from Judicial Review. In India, the position is such that whatever authority resolves disputes must be vested with some sort of judicial authority. Looking at the present case, the authority to decide impugned disqualification under para 6(1) is pre-eminently a judicial complexion. In the present case, the majority has held that the Speaker or the chairman is tribunal and that the finality clause does not oust the jurisdiction of the courts under Articles. 136, 226 and 227. Instead, the finality clause just limits them.

ARGUMENTS OF THE RESPONDENTS

  1. Being in favour of the constitutionality of the Amendment, the respondents urged that the Tenth Schedule creates a non-justiciable constitutional area dealing with certain complex political issues which have no strict adjudicatory disposition. New rights and obligations are created for the first time inflate by the Constitution and the Constitution itself has envisaged a distinct constitutional machinery for the resolution of those disputes. These rights, obligations and remedieswhich are not amenable to judicial processes and the Tenth Schedule has merely recognised this complex character of the issues and that the non-inclusion of this area is constitutionally upheld by ensuring a sense of finality to the decisions of the Speaker or the Chairman and by deeming the whole proceedings as proceedings within Parliament or within the Houses of Legislature of the States envisaged in Articles 122 and 212, respectively, and also by explicitly excluding the Courts’ jurisdiction under Paragraph 7.
  2. In constitutional and legal theory, it is observed that there is really no removal of jurisdiction of Courts or of Judicial Review as the subject-matter itself by its inherent character and complexities is not agreeable to and outside judicial power and that the restriction towards jurisdiction under Paragraph 7 is merely a consequential constitutional recognition of the non-amenability of the subject-matter to the judicial power of the State, the analogy of which is that the Speaker or the Chairman, as the case may be, exercising powers under Paragraph 6(1) of the Tenth Schedule function not as a tribunal with statutory backing, but as a section of the State’s Legislative branch. It is urged that no question of the discharge of jurisdiction of the Courts would at all arise in the first place, having regard to the political nature of the issues, the subject-matter is itself not amenable to judicial power. It is understood thatthe last pointis about the Constitution, and the fact that the Legislature is entitled to deal with it exclusively.
  3. The Tenth Schedule is part of the Constitution and attracts the same canons of construction as are applicable to the expounding of the fundamental law. One constitutional power is necessarily conditioned by the others as the Constitution is one “coherent document”. learned Counsel for the petitioners accordingly say that the Tenth Schedule should be read subject to the basic features of the Constitution. The Tenth Schedule and certain inevitable democratic events cannot co-exist. In clarifying the processes of the fundamental law, the Constitution must be valued as a whole. A constitutional document explains only broad and general principles that can be easily subjected to flexible application to adapting circumstances – a distinction which differentiates a statute from a Charter under which all statutes are made. Cooley on “Constitutional Limitations” has said that:“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.”
  4. The respondents’ counselreferred to the points contended by Shri Ram Jethmalani and Shri Sharma that the provisions of the Tenth Schedule constitute a blatant violation of those fundamental principles and values which are basic to the survival of the systematic uprising of a parliamentary democracy. The Tenth Schedulenegates those very foundational assumptions of Parliamentary democracy; of freedom of speech; of the right to dissent and of the freedom of conscience. It is urged that unprincipled political defections may be an evil, but it will be the beginning of much greater evils if the remedies, graver than the disease itself, are adopted. The Tenth Schedulemirrors the meanderings of a troubled conscience on issues of political morality and to punish an elected representative for what gives way to an expression of conscience quashesthe very democratic principles which the Tenth Schedule is supposed to preserve and sustain. The advocates also referred to the famous Speech to the Electors of Bristol, 1774, by Edmund Burke to substantiate this point.

JUDGEMENT

1. The Preponderance of the Evidence

Speakers/Chairmen are the protectors of the House’s rights and privileges, and they play an important role in Parliamentary democracy. They are expected to, and do, make key decisions in a Parliamentary democracy. Because they have been given the power to decide questions under the Tenth Schedule, they should not be considered exceptionable.

2. Minority Point of View:

The Speaker’s tenure as the authority to decide this disagreement under the Tenth Schedule is conditional on the House’s ongoing support, hence he does not fit the qualification for such an independent adjudicatory power.

3. It was also determined that paragraph 6 of the Tenth Schedule does not create a non-justiciable zone. The Speaker/power Chairman’s to resolve disagreements can also be viewed as judicial.

4. The Election Commission took a similar approach, based on the views of Justices L.M. Sharma and J.S. Verma. In 1977, it made recommendations and suggested that defection-related disqualifications be referred to the Election Commission for an opinion to be extended to the President or Governor, as the case may be, and that the President or Governor act on the Election Commission’s similar opinion, as was the case with other disqualifications related to articles 102 and 191 of the constitution.

CONCLUSION

In the case of Kihoto Hollohan vs.Zachillhu (supra), it was argued that the anti-defection law is against freedom of speech, the right to dissent and the freedom of conscience. Supreme Court ruled that the law is targeted at addressing unprincipled defections, which cannot be protected under freedom of conscience or the right to dissent or intellectual freedom. Therefore, this law has certain dysfunctional consequences however it is necessary in the present era when dealing with political corruption is an important area of electoral reforms.

REFERENCES

  • Kihota Hollohonv. Zachilhu and Ors., AIR 1993 SC 412.
  • Shankari Prasad Singh Deo v. Union of India and State of Bihar, 1951 AIR 458, 1952 SCR 89.
  • Sajjan Singh v. State of Rajasthan, 965 AIR 845, 1965 SCR (1) 933.Ravi S. Naik v. Union of India, 1994 AIR 1558, 1994 SCR (1) 754.
  • Cohens v. Virginia, 5 L. Ed. 257, 291 (1821).
  • State of Madras v. V.G. Row, 1952 SCR 597.
  • Brundaban Nayak v. Election Commission of India, 1965 AIR 1892, 1965 SCR (3) 53.
  • Union of India v. Jyoti Prakash Mitter, 1971 AIR 1093, 1971 SCR (3) 483.
  • Mayawati v. Markandeya Chand & Ors.,1998 INSC 493.Dr. Kashinath G. Jalmi&Anr. v. The Speaker &Ors., 1993 AIR 1873, 1993 SCR (2) 82