Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
Kihota Hallohon v. Mr. Zachilhu
AIR 1993 SC 412, 1992 AIR SCW 3497, 1992 SCR (1) 686
Hon’ble Judges/Coram: L.M. Sharma, M.N. Venkatachaliah, K.J. Reddy, J.S. Verma, and S.C. Agrawal, JJ.
Date of Decision: 08.02.1992
FACTS:-
Constitution (Fifty-Second Amendment) Act, 1985, often referred to as Anti Defection law, which introduced the Tenth Schedule to the constitution was under challenge in this case. Tenth schedule, inter alia, provided for the grounds of disqualification of Members of Parliament (MPs) [para 2 of the Sch.], final powers of the Chairman or Speaker of the house in deciding about their disqualification [para 6 of the Sch.], and Bar of Jurisdiction of all courts in respect of any matter concerned with the disqualification of MPs [para 7 of the Sch.]. The object of this amendment was to curb the evil of political defections motivated by lure of office or other similar considerations which imperil the foundations of our democracy. Several parts of this schedule were challenged in this case, in particular para 2 and 7.
ISSUES:-
Inter alia, following are the important issues in the case
- Whether disqualification of members of Parliament and Legislatures of State as per the para 2 of Tenth Schedule is violative of their freedom of speech, freedom of vote and conscience?
- Whether the order of Speaker or Chairman under the para 6 r/w 7 of the Tenth Schedule is justiciable and subject to judicial review by the High Courts and Supreme Court under Articles 226 and 227 and 136 of the Constitution?
JUDGMENT:-
The Supreme Court observes that the right to freedom of speech of a Member of Parliament or State legislatures is not absolute and is subject to reasonable restrictions. The provisions of the Tenth Schedule do not purport to make a Member of a House liable in any ‘Court’ for anything said or any vote given by him in Parliament. The provisions of Para 2 are salutary and serve the purpose to strengthen the fabric of Indian parliamentary democracy by putting a restriction on unprincipled and unethical political defections. In no manner the provisions of Paragraph 2 violate or curb any rights and freedoms given to Members under Arts. 105 and 194 of the Constitution. That apart, meaning of Art. 105(2) cannot be extended to become a source of immunity from the consequences of unprincipled floor-crossing, and thus, provisions of Para 2 do not violate right to freedom of speech, freedom of vote and conscience as contended in the case.
Now, the provisions of Paragraph 7 of the Tenth Schedule of the Constitution which bars the jurisdiction of all courts to review the order of Speaker or Chairman, in terms and in effect, bring alterations in Articles 136, 226 and 227 of the Constitution, and therefore, the amendment should have been ratified by the specified majority of State legislatures in accordance with the provision of clause (2) of Article 368 of the Constitution, which was not done in this case.
It was further explained by the Hon’ble Supreme Court that the Speakers/Chairmen while ordering the disqualification of a member under the Tenth Schedule performs the function of a Tribunal, and thus, their decisions in that capacity are subject to judicial review.
Now, with respect to the severability of unconstitutional parts from the Tenth Schedule, it was held that provisions of Paragraph 7 are independent in terms and effect, and stands severed from other provisions which intend to curb evil of unprincipled and unethical political defections, and thus, other provisions are complete and workable independent of Paragraph 7.
HELD:-
The Supreme Court, by majority decision (3:2), while upholding the Constitutional Validity of Anti Defection Law, upheld the validity of all paragraphs of the Tenth Schedule except for Paragraph 7 which was declared invalid for want of ratification in terms of Article 368(2) of the Constitution. Hon’ble Court further held that the order of the Speaker under the Tenth Schedule was justiciable and subject to judicial review by the High Courts and Supreme Court under Articles 226 and 227 and 136 of the Constitution. Following are the operative conclusions in the majority opinion on the various constitutional issues:
- That having regard to the background and evolution of the principles underlying the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the Constitution in terms and in effect bring about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India and, therefore, the amendment would require to be ratified in accordance with the proviso to sub-Article (2) of Article 368 of the Constitution of India.
- That there is nothing in the said proviso to Article 368 (2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the Amendment requires ratification from the rest of the provisions of such Bill which do not attract and require such ratification. Having regard to the mandatory language of Article 368 (2) that “thereupon the constitution shall stand amended” the operation of the proviso should not be extended to constitutional amendments in a Bill which can stand by themselves without such ratification.
- That accordingly, the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the constitution of India, to the extent of its provisions which are amenable to the legal-sovereign of the amending process of the union Parliament cannot be overborne by the proviso which cannot operate in that area. There is no justification for the view that even the rest of the provisions of the constitution (52nd Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368 (2) was not so ratified.
- That Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and, therefore, is a severable part. The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7.
- 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 violet any rights or freedom under Article 105 and 194 of the Constitution. The provisions are salutory and are intended to strengthen the fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections.
- The contention that the provisions of the Tenth Schedule, even with the exclusion of Paragraph 7, violate the basic structure of the Constitution in that they affect the democratic rights of elected members and, therefore, of the principles of Parliamentary democracy is unsound and is rejected.
- The Speakers, Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjucating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review. However, having regard to the Constitutional Scheme in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the speakers/Chairmen. Having regard to the Constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.
- That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6 (1) does not detract from or abrogate judicial review under Articles 136,226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned.
- That the deeming provision in Paragraph 6 (2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122 (1) and 212 (1) of the Constitution as understood and explained in Keshav Singh’s Case (Spl. Ref., No. 1, [1965] 1 SCR 413) to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words “be deemed to be proceedings in Parliament” or “proceedings in the Legislature of a State” confines the scope of the fiction accordingly.
- That contention that the investiture of adjudicatory functions in the Speakers/Chairmen would by itself vitiate the provision on the ground of likelihood of political bias is unsound and is rejected. The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far reaching decisions in the functioning of Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in such a constitutional functionaries should not be considered exceptionable.
- In the view taken as to the validity of Paragraph 7, court found it unnecessary to pronounce on the contention that judicial review is a basic structure of the Constitution and Paragraph 7 of the Tenth Schedule violates such basic structure.To Get Legal Opinion from Advocates/ Legal Experts, Please click here
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