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
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(FiftysecondAmendment) Act. These articles are 101(3)(a), 102(2), 190(3)(a) and 191(2). The 10th schedule has also been added. This change is often referred to as the anti-defect method.
Is the change made by the 52nd Amendment constitutionally valid?
Claims made The fundamental claim made by the
Petitioner was that all members must have the right to follow their own spirit and judgment, not necessarily the policies of political parties. According to the complainant, this is considered the basic principle of parliamentary democracy, freedom of expression, the right to dissent and freedom of conscience.
Hon`ble Justice Venkata Chaliah states, “In such areas of experimental legislation, constitutionally valid and constitutionally invalid are indicated by” blurred gray lines “and therefore there is no constitutional Litmus test. “. The majority then chose the validity of the Constitution because it was flexible in responding to the pressure of change. Freedom of expression for members is not absolute freedom, and political parties continue to function. The strength of the common belief is that the party in which the representative is elected cannot vote against it.
Agents’ rights are not absolute and appropriate restrictions apply. Members’ right to freedom of expression is stipulated in Article 105 (2). This goes beyond the fundamental rights guaranteed by Article 19 (1) (a) of the Constitution, as Shri Sharma argues on the part of the petitioner. Political estrangement in the temptation of power and financial incentives is also clearly a form of corruption and therefore does not fall within the scope of immunity given to members of the House of Representatives. Another claim by the applicant’s defense counsel is that the distinction between “defect” and “disconnection” in the tenth list is very small. The underlying difference is that it certainly ignores logic exorbitantly. The court evaluates the attorney’s reasoning and finds that the split tax exemption rule is justified in that less than one-third of the members can have fraudulent intent at the same time.
However, the lawyer’s allegations sound more convincing than the court’s ruling. These provisions provide total tax exemption from splits and mergers and defeat the very purpose of anti-deficiency law. They are dangerous because their abuse is easy to carry out. They are completely immature and illogical, given what happened recently. Under the law, the greater the sin, the greater the immunity. North Korean defectors are often brought by large and small groups. Coordinating splits and mergers based on behind-the-scenes motivation is not difficult.
The second major objection raised by the petitioner is that paragraph 7 involves changes in wording and effect on the application and effect of Articles 136, 226, and 227 and therefore requires ratification. It is to tighten the provision (2) of Article 368. A court agreeing with him said that the wording in paragraph 7 had widespread influence and left no constructive potential. The history of transfer law and the discussions in the House of Representatives suggesting that Section 7 was introduced with the very purpose of banning jurisdiction reinforce the same idea. The court has distinguished this case from the case of Shankari Prasad Singh Deov. Dominion of India and Bihar  and Sajjan Singh. 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 only limits them.
Another allegation made in court was that there was a breach of basic characteristics, as the independent decision-making mechanism for resolving election disputes is an essential occurrence of democracy. The majority and the minority are at odds in this regard, claiming that the majority does not violate the basic characteristics of the Constitution, bearing in mind the chair’s central position in parliamentary democracy. The majority praise the speaker’s position unconvincingly in an attempt to justify their view that they do not violate the basic structure of the Constitution.
A few judges have stipulated that the constitutional scheme for decisions on the issue of exclusion of members after elections provides for such disputes to be decided by independent authorities outside the House. , Found to violate the basic characteristics of the Constitution. In the opinion of the Election Commission, that is, the president or governor, all of whom are high-ranking constitutional officials. The Election Commission expressed the same view as the minority judge in this case. There was a recommendation in 1977.
In the yr. 1977, it made guidelines and recommended that the disqualification on grounds of defection can also be cited the Election Commission for tendering opinion to the President or the Governor, because the case may also be, and the President or the Governor shall act on such opinion tendered through the Election Commission, because it turned into within side the case of different disqualifications cited in articles 102 and 191 of the constitution.
It turned into hence held that the para 6 of the Tenth Schedule does now no longer introduce a non-justiciable area. The electricity to remedy the disputes of the Speaker/Chairman is a judicial electricity. The crucial production is that of the `finality clause` which paved a manner for almost all to attain the judgment.
The regulation which has succeeded in stopping man or woman defections should additionally save you mass defections. The function of the speaker additionally must be known as in question. The speaker relies upon on the bulk within side the legislature for his tenure. Therefore, he does now no longer fulfil the requirement of an `man or woman adjudicatory body`. Various occasions within side the legislature after this example have proved that the minority judges have been proper in putting forward this. The majority judges had set a excessive moral widespread that’s seldom reached through the audio system in India. This scenario may be rectified and the Anti-Defection regulation made extra powerful if adjudicatory feature is rested within side the Election Commission.
On the strains of Articles 102 and 192, the president in case of the parliament and the governor within side the case of state. Legislature, may also refer the problem to the Election Commission. This appears to be the handiest manner to keep away from the politically prompted selections of the audio system. If the authorities desires to keep the existing system, then the Supreme Court has to expect tons broader electricity in phrases of judicial evaluation over the Speaker`s selection below the Anti-defection regulation than what the Supreme Court is ready to do at gift below the formula in Kihota Hollohon.One issue of the Anti-defection regulation desires to be pointed out. Before the graduation of the Tenth agenda a `political party` turned into by no means diagnosed below the Constitution however now their life is recounted below the Anti-defection regulation.
1952 SCR 89.
This article is written by Sankalp Mirani of MNLU Mumbai.