Kihoto Hollohon vs Zachilhu and Ors

Kihoto Hollohon vs Zachilhu and Ors.

Author : Ishita Arora

Citation:  AIR 1993 SC 412, 1992 SCR (1) 686, 1992 SCC Supl. (2) 651

Bench: Justice L.M. Sharma, Justice M.N. Venkatachalliah, Justice Jagdish SaranVerma, Justice K. Jayachandra Reddy, Justice S.C. Agrawal.

Introduction

In the present case of Kihoto Hollohon vs Zachilhu and Ors, multiple petitions were heard together. A number of Writ Petitions, Transfer Petitions, Civil Appeals, Special Leave Petitions and other were filed which raised certain common questions and they were heard together.

The Supreme Court analyzed the 52^nd amendment of the Constitution which inserted tenth schedule which contained different provisions to protect the parties from surrender and defection. The amendment is also referred to as anti – defection law.

The amendment also altered article – 101(3)(a), 102(2), 190(3)(a) and 191(2) of the Constitution. The amendment was made in 1985 and a PIL was filed then and after much discussion and debate the judgment was delivered in 1992. The Supreme Court held that only a part of the schedule was ultra vires as it excluded judicial review.

Facts of the case

The background of the present case is that 10^th schedule was inserted by the Constitution (52^nd Amendment) Act, 1985. Numerous petitions were heard simultaneously which raised the common question as to the constitutional validity of the constitution (52^nd Amendment) Act, 1958 which introduced the 10^th Schedule.  

The main contention of the petitioners was that every Member of Parliament should have the right to follow his own spirit and sense of judgment and it is not necessary that he should act according to the policy of his political party.

The anti – defection law states that a Member of Parliament will become incompetent the moment he intentionally leaves his party or defies the orders of his party’s head in any situation which includes voting.

According to the petitioners, the 10^th schedule violates the fundamental principle of parliamentary democracy, freedom of speech and the right to dissent and the freedom of conscience of the Member of Parliament.

Another argument was that Para 7 of the schedule which puts a bar on the jurisdiction of courts in the matters related to disqualification of a Member of Parliament under this schedule, undertake to change the effect of the Articles 136, 226 and 227 of the Constitution which provides the High Courts and Supreme Court jurisdiction in these cases.

Issues and fact of law

1. Whether the Constitution (52^nd Amendment) Act, 1985 is constitutionally valid or not?

Judgement

The Supreme Court upheld the constitutional validity of the 52^nd Amendment to the Constitution as this amendment does not violate freedom of free speech or fundamental principle of the parliamentary democracy. However, the court held that Para 7 of the schedule is ultra vires to the Constitution as it tries to change the impact of Articles 136, 226 and 227 of the Constitution and thus excludes judicial review. The Court also clarified that the presiding officer has the power to make the decision and when that decision is pronounced and effected, it is subject to judicial review.