Equivalent Citation - 1992 SCR (1) 686, 1992 SCC Supl. (2) 651, AIR 1993 SC 412 Petitioner: Kihoto Hollohon Respondent: Zachilhu and ors. Date of Judgment: 18 February, 1992 Bench: Sharma, L.M. (J), Venkatachalliah, M.N. (J), Verma, Jagdish Saran (J), Reddy, K. Jayachandra (J), Agrawal, S.C. (J)
Facts of the case
In this case, multiple petitions were heard together. So, tenth schedule was inserted by the Constitution (fifty-second amendment) Act, 1985. The combined petition aimed to challenge the Constitutional validity of the Tenth Schedule introduced by the Constitution (Fifty Second Amendment) Act, 1985.These cases were brought amongst a batch of Writ Petitions, Transfer Petitions, Civil Appeals, Special Leave Petitions and other similar and connected matters raising common questions which were heard together. Four articles of the Constitution were altered by the Constitution(Fifty-secondAmendment) Act. These articles are 101(3)(a), 102(2), 190(3)(a) and 191(2). Also, tenth schedule was added. This Amendment is often referred to as Anti-Defection Law.
Whether the changes made by 52nd amendment are constitutionally valid or not?
The basic underlying contention of the petitioners was that every parliamentarian 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.
Hon’ble Justice Venkata Chaliah said that“in such areas of experimental legislation what is constitutionally valid and what is constitutionally invalid is marked by a ‘hazy grey line’ and thus there is no litmus test of constitutionality”. The majority then went on to decide in favour of the Constitutional validity saying that the Constitution is flexible to provide for the compulsions of the changing times, that the freedom of speech of a member is not an absolute freedom and also that the political party functions on the strength of shared beliefs, it being the cost of the label of the party under which their representative has been elected that he must not vote against it.
The right of a parliamentarian is indeed not an absolute right and is thus subject to reasonable restrictions. The right of a parliamentarian to the freedom of speech is provided for under the 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 the Article 19(1)(a) of the Constitution. Political defections in lure of power and money inducements is also clearly a corrupt practice, therefore not falling within the immunity granted to a member of the house.
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 an outrageous defiance of logic. Appreciating the argument of the counsel the Court has opined that the rule for exemption of split is justified in terms that as much as 1/3rd members at the same time cannot be driven dishonest intentions.
However, the arguments of the counsel sound more convincing than the ruling given by the court. These provisions give blanket exemption to splits and mergers and frustrate the very purpose of Anti-Defection law. They are dangerous as their abuse can be easily done. They are totally ill-conceived in view of what has happened in the recent past, and illogical because under the Act, the greater the sin, the greater is the immunity. In many a case, defections are effected by groups-big and small. It would not be difficult to stage splits and mergers for ulterior motives.
The second major contention raised by the petitioners is that paragraph 7 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 requiring ratification. The court subscribing toit has opined that the words of the paragraph 7 are of wide import and leave no constructional options. The same idea is reinforced by looking into the history of the defection law and the debates in the house which suggests that paragraph 7 was introduced with the very purpose of barring jurisdiction. The court has differentiated the present case from the cases of Shankari Prasad Singh Deo v. Union of India and State of Bihar and Sajjan Singh v. State of Rajasthan that were relied upon to urge that there is no attraction to the clause (2) of the Article 368.
The petitioners also contended that the ‘finality clause’ which was under the para 6 of the Tenth Schedule, excludes the court’s jurisdiction which was, in turn, rendering the speaker immune from Judicial Review.In India the position is such that whatever authority decides disputes must be vested with judicial authority. In the present case too, the power to decide disputed 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 under the para 6(1) of the Tenth Schedule 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.
Another contention raised before the court was that there is a violation of the basic feature as independent adjudicatory machinery for resolution of electoral disputes is an essential incident of democracy. The majority and minority have differed at this point with the majority asserting that there is no violation of basic feature of Constitution keeping in mind the pivotal position of the Speaker in a Parliamentary Democracy. The majority has extolled the position of a Speaker and thus rather unconvincingly tried to justify its view saying that there is no violation of the basic structure of the Constitution.
It was held by the minority judges held that the basic feature of the Constitution has been violated as the Constitutional scheme for decisions on questions on disqualification of members after being duly elected, contemplates adjudication of such disputes by an independent authority outside the House, namely President or Governor in accordance with the opinion of the Election Commission, all of which who high Constitutional functionaries are.The Election Commission had a similar opinion as that of the minority judges in the present case. In the year 1977, it made recommendations and suggested that the disqualification on grounds of defection could also be referred to the Election Commission for tendering opinion to the President or the Governor, as the case may be,and the President or the Governor shall act on such opinion tendered by the Election Commission, as it was in the case of other disqualifications referred to in articles 102 and 191 of the constitution.
It was thus held that the para 6 of the Tenth Schedule does not introduce a non-justiciable area. The power to resolve the disputes of the Speaker/Chairman is a judicial power. The important construction is that of the ‘finality clause’ which paved a way for the majority to reach the judgment.
The law which has succeeded in preventing individual defections must also prevent mass defections. The role of the speaker also has to be called in question. The speaker depends on the majority in the legislature for his tenure. Therefore, he does not satisfy the requirement of an ‘individual adjudicatory body’. Various events in the legislature after this case have proved that the minority judges were right in asserting this. The majority judges had set a high ethical standard which is seldom reached by the speakers in India. This situation can be rectified and the Anti-Defection law made more effective if adjudicatory function is rested in the Election Commission.
On the lines of Articles 102 and 192, the president in case of the parliament and the governor in the case of state. legislature, may refer the matter to the Election Commission. This seems to be the only way to avoid the politically motivated decisions of the speakers.If the government wants to continue the present system, then the Supreme Court has to assume much broader power in terms of judicial review over the Speaker’s decision under the Anti-defection law than what the Supreme Court is prepared to do at present under the formulation in Kihota Hollohon.One aspect of the Anti-defection law needs to be pointed out. Before the commencement of the Tenth schedule a ‘political party’ was never recognized under the Constitution but now their existence is acknowledged under the Anti-defection law.
1952 SCR 89.