The article is written by Soumya Lenka. It concerns itself with the background of the Kihoto Hollohan vs. Zachillhu case, the pertinent facts, the arguments of the parties, and the court’s reasoning behind delivering the verdict. This case primarily dealt with the anti-defection law while discussing the validity of the Constitution (Fifty-Second) Amendment Act, 1985, which introduced the Tenth Schedule.

Introduction 

The case of Kihoto Hollohan vs. Zachillhu and Ors. (1993) revolves around the anti-defection law. The term “defection” indicates revolt, dissent, and rebellion by a person or a party. Generally, defection refers to leaving an association to join another. In a political scenario, it is a situation wherein a member of a political party leaves his party and joins hands with other parties. India witnessed a huge surge in this evil phenomenon in the late 1960s. At a point, it became more than necessary that the country have anti-defection legislation, and our legislators brought forth a schedule to deal with the issue. This case is considered as a landmark verdict as it delves into the constitutional validity of the Tenth Schedule of the Indian Constitution, which was introduced via the Constitution (Fifty-Second) Amendment Act, 1985. 

Background of the case

When the founding fathers were drafting the most sacred text or grundnorm of the land, that is, the Indian Constitution, they anticipated that certain issues would be encountered by the Indian political ecosystem, which the present Constitution would not be well equipped to deal with. To cope with the same, they provided a provision for amendment in the form of Article 368 (power of Parliament to amend the Constitution and procedure thereon). 

When our Constitution was drafted, the Indian political ecosystem constituted a bunch of the country’s intelligentsia, and they held high political morality and discipline. However, gradually, as the years passed, morality took a turn, and the political system became more and more cluttered with anti-social elements and people thirsty for power. 

One of the most evil practices that originated in the Indian political ecosystem was the practice of defection. Defection generally means revolt or dissent. In the Indian political context, it meant the change of political party by a member of a State Legislature, or the parliament, after being elected into the legislature, due to several nefarious and ill reasons. 

The phenomenon traces back to floor crossing in the British legislature, wherein one member changes his political association and switches parties after being elected to the legislature as a candidate of the previous party. This phenomenon became rampant in the late 1960s, 1970s, and 1980s, in the Indian political landscape.

One of the most popular instances of this is the famous case of an assembly member of Haryana, Gayalal. The State of Haryana witnessed its first ever assembly elections in 1967. One independent candidate named Gayalal was elected to the newly formed 81-member State Assembly. Within hours of being elected, he joined Congress. Within a few hours of that, he switched to the United Front Coalition, and then again, within the next few hours, he reverted back to the Congress party. 

This was a peculiar case. He switched between parties three times in a single day. His companion congress leader, Birender Singh, while addressing the press, used the phrase “Gaya Ram Ab Aya Ram Hai”. The media took an altered version of the phrase and used “Aya Ram Gaya Ram,” which became so popular that it is often used in Indian politics to date when a politician who is an elected member of one State Assembly or is a member of either House of Parliament switches parties (indulges in defection). There were many such incidents, like that of Gayalal, and it was high time that India had anti-defection legislation to curb this political impunity. 

In December 1967, one private member of the Lok Sabha came up with a bill addressing this burning issue. In pursuance of the bill, a committee on defections was set up under the chairmanship of the then home minister of India, Y.B. Chavan. The YB Chavan Committee came up with a list of suggestions, which were laid down in Parliament in February 1969. Unfortunately, the suggestions of the committee could not provide a solution to the problem. 

After the YB Chavan report and its failure, there were two instances when the government tried to introduce legislation to address the anti-defection issue. One was in 1973, and the second was in 1978. However, the unfortunate fact is that both bills failed to gather consensus in both Houses of Parliament, and for one or another reason, these bills never got passed. Both attempts to introduce anti-defection legislation in the Indian political ecosystem failed. 

Finally, in 1985, the 52nd Amendment Act, which provided for an anti-defection mechanism, was passed by both Houses of Parliament. The Tenth Schedule was inserted into the Indian Constitution via the 52nd Amendment Act, 1985 (popularly known as the anti-defection law), which provided for the disqualification of members of both the Houses of Parliament or of the State Legislatures on the ground of defection by primarily making changes in Articles 101 (vacation of seats with respect to the Parliament), 102 (disqualifications for membership with respect to the Parliament), 190 (vacation of seats with respect to the State Legislatures), and 191 (disqualifications for membership with respect to the State Legislatures). 

Details of the case

• Case name: Kihoto Hollohan vs. Zachillhu
• Petitioner: Kihoto Hollohan
• Respondent: Zachillu and others
• Case type: Transfer Petition (Civil)
• Court: Supreme Court of India
• Bench: Justices Lalit Mohan Sharma, M.N. Venkatachaliah, J.S. Verma, K. Jayachandra Reddy, and  S.C. Agrawal
• Date of judgement: 18. 02. 1992
• Citation: AIR 1993 SC 4120

Laws discussed in Kihoto Hollohan vs. Zachillhu (1993)

Tenth Schedule of the Indian Constitution

Primarily, the case revolves around the Tenth Schedule and the anti defection law introduced by the Union. Firstly, it is important to understand what defection implies in a parliamentary democracy like India. Defection means the change in political affiliation of a member of the legislature, which is generally in furtherance of some nefarious motive. The Tenth Schedule was brought forth by the Indian Parliament, by way of the 52nd Amendment Act, 1985 to curb the growing tendency and political distress of defection, which was on the rise in the Indian political scenario. The Tenth Schedule contains the provisions for disqualification of the members of the State and the Union Legislatures, on the basis of several grounds. The salient features of this Schedule are as follows –

• If a member voluntarily gives up the membership of his or her own political party, the member would be subject to disqualification from the legislature.

• If the person being a member of a political party, abstains from voting or votes in opposition to the direction of the political party to which he or she belongs, without obtaining the prior permission of the political party, he/she would be subject to disqualification.

• If an independent member of a House, that is, somebody who doesn’t have a political affiliation, has been elected by the electorate as an independent figure, he/she is subject to disqualification by the legislature, if he/she joins a political party after being elected to the state or the union legislature.

• In the case of nominated members, the Tenth Schedule prescribes that he/she stands disqualified if he/she joins a political party or changes political affiliation after the expiry of six months from the date of joining the office as a member of the respective State Assembly or the Parliament.

Facts of the case

The newly introduced anti-defection law caused a widespread stir among the political parties and was a matter of heated debate back then. The case is set in the aftermath of the 52nd Amendment Act, 1985. The contentious amendment led to the filing of petitions by various political parties and organisations challenging its constitutional validity in various High Courts and the Supreme Court of India. The Apex Court clubbed the various writ petitions, transfer petitions, civil appeals, special leave petitions, and other connected matters for hearing as they dealt with the identical subject matter. The challenge was on the ground that the anti-defection law and the Tenth Schedule in particular are violative of the constitutional scheme and the principle of parliamentary democracy and hence need to be struck down. There were various facets of concern revolving around the anti-defection law. 

• Paragraph 7 of the Tenth Schedule seemed to be violative of Chapter IV of Part V and Chapter V of Part VI of the Constitution, as it takes away the jurisdiction of the Supreme Court under Article 136 (special leave to appeal by the Supreme Court) of the Constitution and of the High Courts under Article 226 (power of the High Court to issue certain writs) and Article 227 (power of superintendence over all courts by the High Court) of the Indian Constitution. 
• The Bill before being presented before the President for assent, needs to be ratified by the legislature of not less than one-half of the states, as envisaged by the scheme of Article 368(2). However, the concerned legislation did not go through any such ratification.
• Paragraph 7 of the Tenth Schedule takes away or dilutes the power of judicial review as it makes the decision of the speaker of the Lok Sabha and the speaker of the State Legislatures binding as far as defection and the subsequent disqualification of the respective members of the legislatures are concerned, thus not amenable to judicial review. And as judicial review is a basic and fundamental structure of the Indian Constitution, the scheme stands in contrast to that, and hence the Amendment Act is violative of the Indian Constitution and needs to be struck down.
• The very concept of disqualification on the basis of change or switching of parties is in contrast to the principle that the Indian democracy has in the form of freedom of speech and expression as envisaged under Article 19 of the Indian Constitution and stands averse to the constitutional values of the Indian democracy.
• An elected member’s right to dissent, the right to make choices, and the right to freedom of conscience seemed to be curbed by the new anti-defection law.
• The use of the phrase “any direction” in paragraph 2(1)(b) of the Tenth Schedule is patently ambiguous and misleading, and it provides unrestricted powers in the hands of the speaker to issue any direction.

Issues raised in Kihoto Hollohan vs. Zachillhu (1993)

The following issues were put forth before the Hon’ble Apex Court for adjudication in the impugned matter:

• Whether the Tenth Schedule to the Constitution inserted by the Constitution (Fifty-Second Amendment) Act, 1985, is violative of the basic principles of parliamentary democracy and the basic structure of the Indian Constitution?
• Whether paragraph 7 of the newly inserted Tenth Schedule brought about any significant changes in Articles 136, 226 and 227 of the Indian Constitution and interfered with the plenary powers of the Indian Judicature?
• Whether paragraph 7 needs the ratification of the State Legislatures of half of the states as envisaged by the scheme contained in Article 368(2)?
• Whether non-compliance with the scheme envisaged under Articles 368(2) would make the entire Amendment vitiated and render the Amendment Act as unconstitutional on the ground of being an abortive attempt by the legislature and the government to supersede the scheme of the Indian Constitution?
• Whether only paragraph 7 of the Tenth Schedule is to be struck down by the Judiciary in exercise of its powers as provided by the doctrine of severability?
• Whether the Tenth Schedule created such a scheme or adjudicatory process that it restricts the Judiciary from acting as an adjudicatory mechanism, that is, it renders the decision of the speaker in cases of disqualification on grounds of defection, as barred from judicial review?
• Whether paragraph 6(1) of the Tenth Schedule, by granting finality to the decision of the speaker in case of disqualification of members, violates the basic structure principle of judicial review and is unconstitutional?
• Whether the adjudicatory mechanism, which consists of the speaker, conforms to the impartial doctrine of rule of law in a parliamentary democracy, as envisaged by our Indian Constitution, and can stand as a parallel adjudicatory mechanism to the extent that it bars the judicial review process?

Arguments of the parties

Petitioners

The petitioners were represented by counsels Shri F.S. Nariman, Shri Shanti Bhushan, Shri M.C. Bhandare, Shri Kapil Sibal, Shri Sharma, Shri Bhim Singh, and Shri Ram Jethmalani. 

It was contended that the Tenth Schedule inserted by the 52nd Amendment Act, 1985, by the Union legislature is patently arbitrary. It was stated that it is violative of the fundamental principles of parliamentary democracy, is in contrast to the basic principles envisaged by the Indian Constitution, and hence is to be struck down. The Tenth Schedule fundamentally undermines the basic democratic principles of freedom of speech and expression, the right to dissent, and freedom of conscience, which lie at the very core of a healthy, functioning democracy. 

A disease needs a remedy, but when the remedy is more than what the disease requires, it in itself becomes a new disease. Switching to another party is a problem, but the remedies prescribed for the same in the Tenth Schedule are more of an issue than the problem itself. Deciding to change their party’s allegiance is based on a representative’s conscience. A person must not be punished for acting as per his conscience. By relying on this analogy, it was argued that defection with evil and nefarious motives must be looked into, and action should be taken to curb such practices for a healthy democracy. However, it must be ensured that the action or remedy does not hinder the elected member’s right to freedom of speech and expression and that the right to dissent, which are the cardinal principles of Indian democracy, is not violated. 

In the impugned case, the Central Government, by enacting the Tenth Schedule, has provided for a mechanism that is so strict and arbitrary that it not only attacks defection as a phenomenon but also curbs the basic right to freedom of conscience and choice of an elected Member of Parliament and of the State Legislatures. Hence, the scheme of the Tenth Schedule supersedes the requirement that the problem of defection demands and can become a disease in itself.

The counsels, relying on Amalgamated Society of Railway Servants vs. Osborne (1910), contended that a scheme (referring to the scheme envisaged under the newly introduced Tenth Schedule) that stands in contrast to an elected member’s right to speech and expression, freedom of choice, and conscience is opposed to public policy. It was stated that the most important obligation that an elected representative has towards his people in a parliamentary democracy is to vindicate their rights and interests and the promises that the representative made to them while being elected. 

If the opinion of the parliamentary or regional (state) party to which he or she belongs differs from the elected member’s opinion and the elected member thinks that it would be in the interest of his ideals and the rights and interests of the people for whom he stands to change his political party due to a non-alignment of views, there is nothing that should stop him or her from doing so. This choice is implied by the constitutional scheme of the Indian Constitution and has sanction of law. To take it away without any valid ground is patently arbitrary and unconstitutional on the face of it. The elected representatives are chosen by a free electorate. This electorate may choose one candidate for one election and another candidate for another. Going by the freedom that the Indian parliamentary democracy stands for, it was contended that if things are looked at from the other perspective, the elected representative is also free to act as he deems fit, taking into account his obligation to his or her electorate and changing his political association or party.

It was further submitted that Article 105(2) of the Indian Constitution, which provides rights and immunities to an elected Member of Parliament, is absolute and barred from being scrutinised or curbed by any legislation. The absolute exemption provided by Article 105(2) to the Union legislators by virtue of judicial decisions is superior to the freedom of speech and expression envisaged under Article 19(1)(a) of the Constitution, and hence the legislature or the Union Government has no right to interfere with the same and make any alterations, implying that the impugned defection law is unconstitutional on the face of it.

It was argued on behalf of the petitioners that the distinction between the terms “defection” and “split” as provided under the Tenth Schedule is so thin and ambiguous that it is very hard to ascertain what the statute intends to confer or say. He further added that such an ambiguous provision defeats the purpose for which the legislation was introduced and, in a broader sense, is a strict defiance of the principles of rationale and logic which the rule of law stands for. It was further argued that if floor crossing, switching of parties, or political allegiance by an elected member is wrong and evil in the eyes of the law, then going by the law, the defection of 1/3rd of the members of a party to another party is no less evil and should be subjected to criticism in a similar manner. However, the anti-defection legislation and scheme envisaged by the Tenth Schedule provided that the former evil is harmful for the parliamentary democracy, but when a collective preparation is carried out, which is what happens in the latter case, it has the sanction of law and is not subject to criticism. They contended that this classification is devoid of logic and rationale, and a law that is devoid of rationale is patently arbitrary and needs to be struck down.

Relying on H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. vs. Union of India (1971), it was submitted by the petitioners that an amendment of the sort as provided for by the 52nd Amendment Act, 1985, alters the very nature of Articles 136, 226 and 227 and interferes with the power of the Indian Judiciary and hence, needs ratification by at least half of the total number of State Legislatures, going by the scheme provided under Article 368(2) of the Indian Constitution. As in the impugned scenario, the scheme has not been followed, and the Parliament and the Union Government have unilaterally passed the legislation, which means the legislation is unconstitutional and lacks the sanction of law.

It was further contended that paragraphs 2(1)(b), 6(1), and 6(2) of the Tenth Schedule give wide powers in the hands of the speaker and make him the sole adjudication authority as far as matters relating to the defections of the elected members are concerned. The peculiar facts, in addition to the plenary powers conferred on the speaker, confer finality to his decision in cases of disqualification proceedings. The same is not amenable to judicial review. It was contended that the only authority or institution that acts as the bastion of justice is the Indian Judiciary, which is the supreme authority of adjudication. So even if any authority has adjudication powers, the Indian Judiciary will have the last say or will be the last resort for someone who is aggrieved or is not happy with the decision of the lower authorities. The Indian democratic setup embraces the principle of judicial review as a basic and fundamental feature, and by rendering the decision of the speaker binding in the impugned cases, the legislature has tried to override the basic principle, and hence, the law is to be struck down.

The petitioners argued that an independent adjudicatory authority must be free from any undue influence or pressure. If the speaker is given adjudicating authority, as has been done in paragraph 6 of the Tenth Schedule, he can never act independently. It was argued that to remain a speaker of the house, he or she needs the support of the majority of the house, and this nevertheless leads to a bias in his decision making, and hence he doesn’t satisfy the basic requirement of an independent adjudicating authority and violates the democratic principle of rule of law.

Respondent

Learned Attorney-General Shri Soli J. Sorabjee, Shri R.K. Garg, and Shri Santhosh Hegde argued in favour of the State, supporting the constitutional validity of the amendment and that of the Tenth Schedule. 

The respondents, being in favour of the amendment, urged that anti-defection is a grave political issue and that it was quite necessary that the government address it by bringing forth legislation to that effect. The government passed the 52nd Amendment Act, 1985, and inserted the Tenth Schedule in pursuance of the objective to tackle the emerging issue, which was causing political instability across the country. As it is a complex political issue and is something that is completely related to the legislative sphere, the government has reasonably made the affair not amenable to judicial review and made the decision of the speaker final and binding.

Further, it was contended that by deeming the whole proceedings as proceedings within Parliament or within the Houses of Legislature of the States, envisaged in Article 122 (court not to inquire into proceedings of Parliament) and Article 212 (court not to inquire into proceedings of the State Legislature), respectively, and also by explicitly excluding the courts’ jurisdiction under paragraph 7, the legislature has reasonably barred judicial review for the disqualification proceedings. Hence, the legislature is well within the contours of the law to have exercised such power.

It was further argued by the respondents appearing on behalf of the state that “prevention is always better than cure”. Countering the contentions of the counsels on behalf of the petitioners, the respondents contended that there is no doubt that the provisions of the Tenth Schedule are much more stringent and strict, taking into account the problem of defection. However, it was argued that prevention is always better than cure, and the legislature has exercised its power and come up with a law that is stricter than the problem of defection while keeping prevention in mind. It was argued that the legislature has the prowess and the potential to make such laws, and it is outside the scope of judicial scrutiny to delve into the aspect of legislative competence.

It was further contended that Article 368(2) and the language used therein nowhere mandate a constitutional amendment bill of the impugned nature to be ratified. Hence, the contention of the petitioners that there has been non compliance with the procedure established by law while passing the amendment bill is devoid of any merit. 

Judgement in Kihoto Hollohan vs. Zachillhu (1993)

The Court, in a majority decision (ratio of 3:2), held that the Constitution Amendment Bill in the impugned case does not come within the ambit of Article 368(2) of the Indian Constitution, and the mandatory language [thereupon the Constitution shall stand amended] is not applied in the impugned scenario. Hence, there is no need for any ratification by the State Assemblies or Parliament. The Central Government was well within the contours of the law while passing such legislation.

Rationale behind the Judgement

Taking into account the cases of Sajjan Singh vs. State of Rajasthan (1964) and Sankari Prasad vs. Union of India (1951), the petitioners had challenged that the entire Tenth Schedule must be ratified. The Court, coming to this contention that the whole of the Tenth Schedule has to be ratified as per the scheme provided under Article 368(2) of the Constitution, held that in accordance with the doctrine of pith and substance, there seems to be no alteration in the language of the scheme of the provisions of Articles 136, 226, and 227 by the impugned schedule. While negating the contention, it held that the reasonings laid out in the Sajjan Singh and Sankari Prasad cases do not find their application in the impugned case. 

Coming to the contentious paragraph 7 of the Tenth Schedule, the Court held that paragraph 7 certainly seeks to alter the scheme of Articles 136, 226 and 227 of the Indian Constitution and bars the jurisdiction of the courts. Hence, it needs ratification by the legislative assemblies of the States, as provided under Article 368(2) of the Indian Constitution. The Court held that the entire Tenth Schedule need not be rendered unconstitutional. Relying on the principle envisaged in Shri Kesavananda Bharti Sripadagalavaru vs. State of Kerala (1973) and Minerva Mills Ltd. & Ors. vs. Union of India & Ors. (1981) that only the offending part needs to be severed, the Court decided that only paragraph 7 needs to be severed by using the doctrine of severability.

Coming to paragraph 6 of the Tenth Schedule, the Court was of the opinion that the position of the speaker is a venerable one in parliamentary democracies. The speaker is regarded as the embodiment of impartiality and discipline in a parliamentary democracy, and he is solely responsible for the discipline and conduct of parliamentary proceedings. He is charged with several important functions of the House, and many of them are judicial in nature. He is the one who is responsible for running the Houses in accordance with their respective rules. The same applies for the legislative assemblies of the states. 

The Court held that, taking into consideration the venerable institution that holds the post of speaker in a parliamentary democracy like that of India, it is inappropriate in every sense to hold distrust and disbelief in the decision of the speaker. Only because there have been instances wherein the speaker has acted partially, it cannot lead to a generalisation of the allegation levied by the petitioners that the office of the speaker is biassed and that he cannot act as the sole arbiter in cases of disqualification proceedings of the elected members. Unilateral instances of malfunctioning of the office of the speaker cannot be taken into account to assert the allegation that the position of the speaker lacks the competence to act as an adjudicating authority. Hence, discarding the allegations of the petitioners, the Court firmly held that paragraph 6 of the Tenth Schedule is constitutionally valid and the speaker has the legislative competence to adjudicate on such matters.

Negating the contentions of the petitioners on absolute immunity being granted to the elected members by virtue of Article 105(2), it was held by the Court that despite the elected members being bestowed with a sort of immunity in cases of defamatory statements, saying that it is absolute is mere foolishness. The Court held that the members of the Parliament and legislative assemblies are given immunity from court proceedings in case of any report, vote, paper, or parliamentary proceedings, but it nowhere applies to the scenario of an unprincipled floor crossing. 

Relying on Jyoti Basu & Ors. vs. Debi Ghosal (1982), the Court was of the view that the right to elect, however crucial for a democracy, is not a fundamental right under the Indian Constitution. It is a statutory right. On a similar pedestal stand the right to be elected and the right to challenge an election. As this is a statutory right, it is also subject to statutory limitations and standards. Hence, it is very essential to ensure the purity of this electoral princess by way of statutory regulations and legislation, as there is no status of fundamental right conferred on the same. 

The Parliament is bestowed with the responsibility to come up with statutes to protect the venerable process of elections and to prevent the electoral mandate from being contaminated in a way that undermines the sanctity of parliamentary democracy that the country stands upon. The Court therefore held that, on reading Article 105(2) of the Constitution in consonance with the assertion that the right to elect is not a fundamental but rather a statutory right, it can be well established that Article 105(2) is not absolute and is subject to statutory regulations. Based on this reasoning, the Court decided that the Tenth Schedule serves the purpose of protecting the sanctity of our democracy by curbing the ill practice of unprincipled floor crossing or defections. The Union Government is well within its statutory powers and the contours of the law in passing the 52nd Amendment Act, 1985, and introducing the contentious Tenth Schedule. The allegations of the petitioners are devoid of all merits. 

With respect to paragraph 2 of the Tenth Schedule, the Court first went on to analyse the complex system of parliamentary democracy to reach a conclusion. Taking into account the case of Parkash Singh Badal vs. Union of India (1987), the Court observed that a parliamentary democracy is complex and, at the same time, an effective system of democracy. The relationship between the constituency, electoral parties, and their elected representatives has several facets and overtones. Sometimes the beliefs and values of the electoral party may come into conflict with the people of the constituency and their demands. 

In such a case, the elected representative of that party suffers a dilemma. At one end, he has an obligation towards his party, and at the other end, there is a duty that he has towards the people who have elected him and given him the right to perform on their behalf to vindicate their rights and interests. The duality of capacity and loyalty is what creates the dilemma. Here comes into play the fundamental principle, or right to freedom of speech and expression, and that of dissent. In accordance with this principle, the elected member may vote for the party if he feels that it is his obligation and that the direction and objective of the party in the Bill or other parliamentary proceedings vindicate the rights of his electorate. On the other hand, the elected member also has the freedom to vote against the party if he thinks that the party’s objective in passing the bill does not vindicate or is not in consonance with the rights and interests of the electorate whom he represents. There have been many instances of this kind of cross-voting, and this is a characteristic that needs to be cherished in a parliamentary democracy. 

The Court then emphasised the language of paragraph 2 of the Tenth Schedule to come to the conclusion that it is violative of the freedom of speech and expression or the broader freedom of choice and dissent of an elected member. Paragraph 2, sub-paragraph 1, clause b provides for the disqualification of a member who votes or abstains from voting contrary to “any directions” issued by the political party. This provision, however, recognises two exceptions: when he or she obtains permission from the political party to which he belongs to vote against or abstain from voting, and when he or she is condemned by the political party for such abstention or cross-voting. The answer to the allegation by the petitioners is found in these exceptions. This provision recognizes the possibility of such instances when a member may vote against or abstain from voting contrary to the party to which he belongs. The Court held that this provision in itself settles the question of infringement of fundamental rights by giving the elected members the necessary scope to exercise their independent rights as members of the legislature. 

The Court reiterated the fact that in a parliamentary democracy, there is nothing inherently contradictory in a member sustaining the Executive in its power or helping it to overcome opposition, at the same time as scrutinising the work of the Executive in order to both improve it and see that the power is being exercised in a proper and legitimate fashion. Hence, the Court decided that paragraph 2 of the Tenth Schedule is not violative of the fundamental right to freedom of speech and expression or of the broader democratic principles of the  right to choice or dissent in a democracy.

The Court, coming to the allegation by the petitioners, challenged the fact that when an individual member defects or changes his political association, it constitutes an evil and he is to be disqualified, but when a major segment of the party or group of elected members of a party change their political party, then that collective perpetration does not constitute defection. The Court here emphasised on the distinction between the concepts of “defection” and “split”. When an individual changes his party for evil or nefarious reasons, it constitutes defection under the Tenth Schedule, but on the other hand, a split is when a major portion of one party dissociates itself from the original party and forms a new party.

Further, the Court also emphasised the concept of merger. Split and merger are two sides of the same coin. When a merger happens, a major section of a party splits from the original party and joins the other party. Here, the Court held that when a split or merger happens, it is the collective conscience of a major segment of a political party that they don’t want to remain associated with the original party because there has been a collective change or alteration in the thinking of a major segment of party members. It is the collective conscience of a major segment of the party’s members, where they think that they not only want to split with the original party but also want to join another party on a collective level. This freedom of choice and freedom of speech and expression is inbuilt in parliamentary democracy and needs to be protected. 

The Court held in its dictum that paragraph 2 draws a line between defection and split/merger. It provides for an exception, that is, when one-third of the members of a party change their political association or merge with another party, it does not account for defection under the impugned schedule. The Court, holding paragraph 2 of the schedule as constitutionally valid, observed that while curbing the evil practice of floor crossing by the elected members, the legislature has envisaged the need to provide for such floor-crossing on the basis of honest dissent, with the exception of paragraph 2. Hence, the argument of the petitioners that the provision does not stand the test of procedure established by law is devoid of any merits.

The petitioner’s contention that the word “final” used in paragraph 6(1) of the Tenth Schedule provides finality to the decision of the speaker is illogical and imprudent. The Court went on to interpret the clause in consonance with the other provisions of the Constitution. It held that with respect to Article 192, which provides finality to the decision of the Governor with regard to his decision in respect of disqualification of the members of State Legislatures, in the case of Brundaban Nayak vs. Election Commission of India & Anr (1965), the matter was examined by this Court on an appeal by special leave under Article 136 of the Constitution after the writ petition was dismissed by the high court on the ground that the decision is binding. 

Similarly, in Union of India vs. Jyoti Prakash Mitter (1971), as well as Union of India & Anr. vs. Tulsiram Patel & Ors. (1985), in spite of finality being accorded to the decision of the President with respect to the determination of the age of the judge of the High Court under Article 217(3) (appointment and conditions of the office of a judge of a High Court), the Supreme Court heard and examined the matter of the correctness and legality of the order of the President by virtue of a special leave petition under Article 136 of the Constitution. 

The Court hence held that the finality clause in paragraph 6 only holds that judicial review is not barred, but is available only after a final decision of the speaker, with regard to the disqualification of the members, has been reached. The fidelity being talked about in paragraph 6, is indicative of the fact that as an absolute internal matter of the Parliament and the State Assemblies, the speaker, who acts as a judicial authority, has the first power to deal with the matter. Being a parliamentary issue at the first instance, it bars the jurisdiction of the courts to deal with cases of disqualification, and their power comes into play only after the proceedings before the speaker are over. 

The Court nevertheless held that there is a restriction on the interference of the courts, as far as judicial review of the decision of the speaker is concerned, but that is quite justifiable. The adjudicatory authority of the parliamentary and assembly proceedings is the speaker. So, it is well within the contours of the law if the Tenth Schedule and its impugned provisions restrict the jurisdiction of the courts from interfering heavily in legislative proceedings. Nevertheless, the Court has the power of judicial review in cases of arbitrariness, malafide proceedings, and gross error negating the rules of natural justice in the order of the speaker in the concerned disqualification proceedings.

Dissenting Judgement

The minority dissenting judgement was delivered by Hon’ble Justices Lalit Mohan Sharma and J.S Verma. The opinion of these judges differed from the majority judgement of the Court. They held that paragraph 7 of the Tenth Schedule, in clear and unambiguous terms, excludes the jurisdiction of all the courts and is a direct strike to the judicial review which is a part of the basic structure of the Indian Constitution. Prominently, it excludes the power conferred to the Supreme Court under Article 136  and the High Courts under Articles 226 and 227, to exercise their power of judicial scrutiny with respect to the decision of the speaker, despite the fact that in a democracy, the chief adjudicating authority must be the judicature of the country.  

Coming to paragraph 6, the judges held that by providing the speaker, the final authority to adjudicate on the matters of defection and the subsequent disqualification, it completely bars any interference from the courts and impedes such disqualified member from approaching the courts to seek justice, which is a violation of the doctrine of judicial review enshrined in the Indian Constitution. This, in the opinion of the dissenting judges, was a bad law and should be struck down. 

Further, coming to the question of whether ratification is required or not, the dissenting judges were of the opinion that as the new Schedule and the Amendment seek to substantially change the powers and authority conferred under Articles 136, 226, and 227, it must follow the scheme as envisaged under clause 2 of Article 368 of the Indian Constitution. To elaborate, they were of the opinion that paragraph 7 of the Tenth Schedule alters the scheme of Articles 136, 226 and 227 and takes away the adjudicatory powers conferred to the Indian judicature, particularly the High Courts and the Supreme Court. Hence, ratification by at least half of the State Assemblies of the total number of states, as prescribed for under Article 368(2) of the Indian Constitution, is required. Based on this, the it was held that since there was no ratification in the impugned case, before the Parliament passed the resolution, the whole of the Tenth Schedule has violated the constitutional scheme and is subject to be struck down.

With respect to the doctrine of severability, the minority opinion held that this doctrine is applied when a specific part of a particular legislation does not comply with the constitutional provisions, and as seen in the impugned case, the Tenth Schedule in its entirety, is in contravention of the constitutional provisions of Article 136, 226 and 227. The said doctrine does not have any application whatsoever, as far as the current scenario is concerned. Therefore, it was held that it is not only paragraph 7 that must be struck down, but also the whole schedule in its entirety must be quashed on the ground of non-compliance with the grundnorm of the Indian Constitution.

While referring to the democratic structure of the Indian polity, the minority judgement was of the opinion that free and fair elections form the basic structure. In a parliamentary democracy like that of India, the State Assemblies and the Parliament, are elected by the people of the country and moreover, every member is elected by his/her electorate. Hence, he/she is under an obligation to cater to their rights and interests. Several times, their rights and interests may not resonate with the stance of the party to which the member belongs to. In such a situation, the member is under a democratic obligation to vote or abstain from voting for vindicating the interests of his/her electorate, and hence deviating from the stance of the political party to which he/she is affiliated. This is quite basic in a democracy and is a feature of dissent and right to choice, as envisaged in the essence of Indian Constitution. Hence, the Tenth Schedule, by making it mandatory to take the permission of the party to which one belongs, before voting in contrary to the party’s stance, impedes on the basic structure and crucial democratic right of dissent, is unconstitutional .

Coming to the independent adjudicatory authority plea by the petitioners, the minority opinion concurred with that of the petitioners. It was held that the speaker cannot be the final arbiter, as far as the disqualification proceedings of the members of the legislature are concerned. It has been prescribed in the paragraph 2 of the Tenth Schedule, that the speaker has the final authority to decide on the disqualification of a member of the legislative assembly or the Parliament in case of defection, but the same is prima facie unconstitutional. To substantiate this, the Court’s reasoning was based on the petitioner’s concern that a speaker is generally elected on the basis of which party or alliance has the majority seats in a House. This implies that when the speaker is elected, he or she is generally someone who represents the voice of the majority party or alliance. Nevertheless, the post of the speaker  holds a sacred position in a democratic polity, but to assume that he/she would be impartial at all times, is practically impossible because of his/her affiliation to a political party or alliance. Hence, the speaker cannot be considered as an independent adjudicatory authority and making him the final authority to decide disqualification is patently arbitrary. Therefore, paragraph 2 of the Tenth Schedule contradicts the scheme of the Indian Constitution.

In conclusion, the minority opinion of the Court held that the change in the scheme of Articles 102 and 191, giving finality to all the decisions of the speaker, must be nullified.

Analysis of Kihoto Hollohan vs. Zachillhu (1993)

The case acts as a landmark precedent in the area of anti-defection legislation in Indian democracy. It established the constitutional validity of the anti-defection law by asserting the validity of the 52nd Amendment Act, 1958, and hence the Tenth Schedule. The case also serves as a precedent for the rule of legislative interpretation, as it reiterates the pivotal principle that a legislation and its provisions should be interpreted in whole and not in isolation. It is by using this principle of construction that the court rejected the contentions of the petitioners and asserted the legitimacy of the legislation. The watershed verdict is also important as it shed light on the relationship between the judiciary and the legislature and cleared up serious ambiguities as far as the limits of interference by both organs of Indian democracy are concerned. It re-established the rule that while judicial interference is essential for the effective functioning of the legislature of the country, the judiciary has its limits and cannot take away the duty of legislating in the garb of delivering justice.

Need for anti defection legislation

Anti defection legislation has a wide set of objectives to fulfil. Primarily, the legislation is required to prevent defections motivated by the lure of material benefits and other nefarious motives, which may include, but is not limited to, bribes, different forms of favours, etc., which indirectly hampers the spirit of democracy. Therefore, it helps to uphold the democracy of India.

Advantages of anti defection legislation

Anti defection legislation deters the legislators from shifting their political association to gain any personal advantages. Moreover, for a healthy democracy, a stable government is required and anti defection law, by prohibiting illegal and unreasonable change of political affiliation, maintains such stability. This legislation is in furtherance of the objective of a healthy democratic framework.

Further, sometimes the opposition party tries to topple the government of a state or the country, by bribing the members of the establishment and if it works, there would be a sudden change in the government or toppling down of the government. Anti defection law prevents this. Further, it permits a democratic merger of the political parties, without the  disqualification of members, ensuring the freedom of the right to choose and dissent. On a larger scale, it strengthens the institution of democracy and keeps corruption in check.

Disadvantages of anti defection legislation

One of the most criticised aspects of the anti defection legislation, is that it infringes on the right of the member of the legislature to make a choice that is contrary to the party’s stance, in furtherance of the interests of the electorate which they represent.

By punishing defectors and subjecting them to disqualification on the basis that they have voted in contradiction to the party, without prior ratification and permission from the party, the anti defection law  infringes on the concept of intra-party democracy. Democracy is an ever pervading concept and there is no particular stipulation or code which states that within a party there is no right to dissent and that all the party members are under an obligation to act in accordance to the party’s directions. There have been instances since independence, wherein a member of one party has acted beyond the party’s opinions, which is the basic feature of dissent in a democracy. However, on the other hand, the anti defection scheme as provided for in the Tenth Schedule, by making it mandatory to receive the party’s permission before voting against or abstaining, is a clear contravention of the concept of intra-party democracy.

It has been alleged that by using the threat of disqualification, the top leadership of a political party can coerce the dissenting members of the party into not going against the directions of the party’s leadership and if they do so, they would be subject to disqualification. This makes it mandatory for a member to vote in line with his/her party, despite knowing that the party stands in contrast to the rights and interests of the electorate which the member represents. This indirectly hampers the spirit of representative democracy. Every political representative represents his/her electorate and the first responsibility is to cater to their interests and not that of the political party to which he/she belongs.

Conclusion 

An anti-defection law is essential for the effective functioning of a democracy like India. It has proven to be a deterrent to the commission of illegal floor crossings. The court, by asserting the legitimacy of the legislation in this case, has sealed the law in the Indian parliamentary democracy. On a concluding note, the legislation has proven effective in many circumstances but has fallen short of fulfilling the purpose for which it was brought about. There are still miniscule loopholes in the anti-defection law, and politicians take advantage of these lacunae to get away with the scrutiny of the prohibitive legislation. It is up to the legislature and the judiciary of India to take these issues into account and bolster the legislation to increase its efficacy.

Frequently Asked Questions (FAQs)

Which law is relevant to this case?

The case concerns itself with the anti-defection law .

Which schedule was introduced to the Indian Constitution by the 52nd Amendment Act of 1985?

The 52nd Amendment Act, 1985 inculcated the Tenth Schedule to the Indian Constitution.

Which paragraph of the Tenth Schedule did the Court declare unconstitutional?

The Court declared paragraph 7 of the Tenth Schedule, as unconstitutional. 

References

• https://www.scobserver.in/journal/court-in-review-defection-of-assembly-members/ 
• https://digiscr.sci.gov.in/view_judgment?id=MjMwMjA= 

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