Authored By: Arshique Rizvi
Amity Law School, Amity University Patna
Case Title & Citation
Title: Kihoto Hollohan v. Zachillhu and Others
Citation: 1992 Supp (2) SCC 651; AIR 1993 SC 412
Court Name & Bench
Court: Supreme Court of India
Bench Type: Constitution Bench (Five Judges)
Judges:
Justice M.N. Venkatachaliah
Justice L.M. Sharma
Justice B.P. Jeevan Reddy
Justice S.C. Agrawal
Justice Yogeshwar Dayal
Date of Judgment
Date: 18 November 1992
Parties Involved
Petitioners/Appellants:
Kihoto Hollohan and several other elected representatives (MLAs/MPs) who challenged the constitutional validity of provisions of the Tenth Schedule to the Constitution of India.
Respondents/Defendants:
Zachillhu (Speaker of the Mizoram Legislative Assembly) and other Speakers and presiding officers from various legislatures defending the validity and procedure under the Tenth Schedule.
Facts of the Case
The issue of political defection, or “floor crossing,” had plagued Indian democracy for decades, undermining political stability, party discipline, and public trust. To address this, Parliament introduced the 52nd Constitutional Amendment Act, 1985, which inserted the Tenth Schedule to the Constitution of India, known as the Anti-Defection Law.
This law aimed to prevent elected legislators from defecting from their political parties after elections.
Under the Tenth Schedule:
A legislator could be disqualified for voluntarily giving up membership of a political party or voting/abstaining against party direction without permission.
Paragraph 6 vested the power to decide questions of disqualification with the Speaker or Chairman of the respective legislature.
Paragraph 7 barred judicial review of such decisions in any court, including the Supreme Court and High Courts.
After the law was enacted, multiple petitions were filed across the country challenging especially Paragraphs 6 and 7. These were clubbed and heard by the Supreme Court under Article 32.
The petitioners, including legislators like Kihoto Hollohan, argued that granting final authority to the Speaker, who is often politically aligned, and simultaneously excluding judicial review, violates the basic structure of the Constitution.
Issues Raised
The following legal issues were considered by the Court:
Whether Paragraph 7 of the Tenth Schedule is unconstitutional for excluding judicial review, thereby violating the basic structure of the Constitution.
Whether vesting adjudicatory powers in the Speaker/Chairman under Paragraph 6 violates the doctrine of separation of powers and principles of natural justice.
Whether the Speaker acts in a judicial, quasi-judicial, or administrative capacity while deciding disqualification under the Tenth Schedule.
Whether the Tenth Schedule as a whole is valid and consistent with the constitutional scheme.
Arguments of the Parties
Petitioners (Kihoto Hollohan and Others)
- Lack of Neutrality of the Speaker:
The Speaker is not an independent judicial authority. He/she is elected on a party ticket and may have partisan loyalties, especially in disqualification cases involving members of rival parties.
Delegating adjudicatory powers to a politically interested person goes against the principle of impartiality in adjudication.
- Violation of Natural Justice:
The process lacks explicit provisions for notice, hearing, evidence, or appeals, thereby violating audi alteram partem (hear the other side).
The Speaker’s decision is not bound by established judicial procedures or standards.
3. Judicial Review is a Basic Feature:
Paragraph 7, which excludes courts from reviewing the Speaker’s decision, undermines the doctrine of judicial review, which is part of the basic structure (as recognized in Kesavananda Bharati v. State of Kerala).
Even constitutional amendments cannot abrogate the essential function of courts to enforce constitutional limits.
- Separation of Powers:
Assigning judicial power to a legislative officer (Speaker) blurs the lines between legislature and judiciary, disrupting the separation of powers.
- Absence of Ratification under Article 368(2):
The exclusion of court jurisdiction under Paragraph 7 affects Articles 136, 226, and 227. Therefore, it should have been ratified by at least half of the states, as per Article 368(2).
Since no such ratification was obtained, Paragraph 7 is void.
Respondents (Zachillhu and Others)
- Necessity of the Law:
The anti-defection law was enacted in public interest to ensure political stability, party discipline, and to curb the corrupt practice of horse-trading.
- Speaker’s Constitutional Status:
The Speaker is a high constitutional functionary and expected to act impartially.
The Constitution already vests the Speaker with authority in various quasi-judicial matters (e.g., deciding whether a Bill is a Money Bill).
- Judicial Review Still Exists in Exceptional Cases:
Even if Paragraph 7 excludes judicial review, the courts can still intervene in cases of malafide, jurisdictional error, or constitutional violations.
- Amendment Procedure was Followed:
The 52nd Amendment was passed as per the constitutional procedure and should be presumed valid unless proven otherwise.
- Efficiency in Legislative Functioning:
Giving the Speaker final authority ensures quick disposal of disqualification issues without delay caused by litigation, which is essential for the smooth functioning of legislatures.
Judgment
The Supreme Court delivered a split verdict (3:2), with the majority opinion authored by Justice M.N. Venkatachaliah and Justice Jeevan Reddy. The majority upheld some parts of the Tenth Schedule but struck down others.
Upholding the Tenth Schedule (Except Paragraph 7):
The Court upheld the constitutionality of the Tenth Schedule generally. It ruled that vesting the power of disqualification in the Speaker is not unconstitutional. The Speaker is expected to act judiciously, and such decisions are quasi-judicial in nature. Striking Down Paragraph 7:
Paragraph 7 was held to be unconstitutional, as it violates the basic structure of the Constitution by ousting judicial review. Judicial review is a core feature and cannot be excluded by a constitutional amendment unless ratified by at least half the states under Article 368(2), which was not done.
Consequently, Speaker’s decisions under Paragraph 6 are subject to judicial review, particularly under Articles 32, 136, 226, and 227.
Summary of Decision:
The Tenth Schedule, as a mechanism to prevent defection, is valid and constitutional.
However, the Speaker’s decision is not final and can be reviewed by courts on limited grounds such as:
Malafide or bias
Violation of natural justice
Lack of jurisdiction
Constitutional violation
Legal Reasoning / Ratio Decidendi
The Court’s reasoning revolved around balancing two constitutional imperatives: controlling political defections and preserving constitutional values like judicial review and impartiality.
- Judicial Review is a Basic Feature:
Citing Kesavananda Bharati and Minerva Mills, the Court reiterated that judicial review is essential to the Constitution’s integrity. Any provision, including a constitutional amendment, that removes or severely limits judicial review undermines the rule of law.
- Speaker’s Role is Quasi-Judicial:
Though the Speaker is a political figure, while deciding disqualification, he performs a quasi judicial function. Thus, he must act independently, following the principles of natural justice.
- Separation of Powers Maintained:
Delegating disqualification matters to the Speaker does not violate the separation of powers, provided judicial review is retained as a safeguard.
The legislature can have internal autonomy, but not unfettered authority. 4. Procedural Invalidity of Paragraph 7:
Excluding jurisdiction of High Courts and the Supreme Court affects Articles 136, 226, and 227, and hence requires ratification by state legislatures.
Since Paragraph 7 did not go through that process, it is procedurally unconstitutional. 5. Preserving the Legislative Intent:
The Court tried to balance the objectives of the Tenth Schedule with constitutional safeguards, by preserving the substantive anti-defection mechanism while striking down only the exclusion clause (Paragraph 7).
Conclusion
The Kihoto Hollohan case is one of the most significant constitutional decisions in Indian legal history. It reinforced key constitutional doctrines:
Judicial review as a part of the basic structure Checks and balances on legislative and quasi-judicial authorities The importance of impartiality and natural justice in constitutional adjudication While upholding the Tenth Schedule’s validity, the Court ensured that the decisions of Speakers are not immune to judicial scrutiny. This case remains a cornerstone in Indian jurisprudence concerning legislative ethics, anti-defection law, and the limits of constitutional amendments.
It strikes a delicate balance between political necessity and constitutional fidelity, ensuring that no authority even constitutional ones like the Speaker can act beyond judicial scrutiny when fundamental democratic values are at stake.
