Kihoto Hollohan v. Zachillhu and Ors., AIR 1993 SC 412

The Tenth Schedule to the Constitution of India was inserted by the Constitution (Fifty-Second Amendment) Act, 1985 with the objective of curbing political defections and promoting stability in parliamentary democracy.

The Anti-Defection Law provided that a legislator would incur disqualification if: They voluntarily gave up membership of their political party; or They voted or abstained from voting contrary to the party whip without authorization.

Paragraph 6 of the Tenth Schedule vested the power to decide questions of disqualification in the Speaker or Chairman of the House, whose decision was declared final.

Paragraph 7 of the Tenth Schedule expressly barred the jurisdiction of all courts in respect of disqualification matters arising under the Schedule.

Several petitions were filed challenging the constitutional validity of the Anti-Defection Law and the provisions of the Tenth Schedule.

The petitioners argued that: The law violated democratic freedoms, including freedom of speech and conscience under Articles 19 and 105 of the Constitution; Vesting adjudicatory powers in the Speaker/Chairman violated principles of impartial adjudication because the Speaker is generally affiliated with a political party; and Exclusion of judicial review under Paragraph 7 was unconstitutional as judicial review forms part of the basic structure of the Constitution.

The Supreme Court clubbed all the matters together and delivered a consolidated judgment.

Validity of the Anti-Defection Law: The Supreme Court recognized that unprincipled political defections had become a serious threat to democratic governance and political stability. The Court observed that the object of the Tenth Schedule was to combat political corruption and maintain the integrity of elected governments. It held that disqualification on the ground of defection does not violate democratic principles or freedom of speech and conscience. The Court reasoned that legislators contest elections on party platforms, and party discipline is an essential component of the parliamentary system.

Speaker as a Tribunal: The Court examined the role of the Speaker/Chairman under Paragraph 6 of the Tenth Schedule. It held that while deciding disqualification disputes, the Speaker functions as a Tribunal exercising quasi-judicial powers. Accordingly, the Speaker’s decisions are not immune from judicial scrutiny. The Court rejected the contention that the Speaker’s political affiliation automatically disqualifies them from acting impartially. It observed that constitutional functionaries are expected to discharge their duties fairly and objectively.

Judicial Review as Part of the Basic Structure: The Court held that judicial review is a basic feature of the Constitution and cannot be excluded even through a constitutional amendment. Paragraph 7 of the Tenth Schedule sought to exclude the jurisdiction of the Supreme Court and High Courts under Articles 136, 226, and 227. The Court ruled that such exclusion damaged the basic structure of the Constitution by curtailing judicial review. Additionally, the Court observed that Paragraph 7 effectively amended provisions relating to the jurisdiction of the Supreme Court and High Courts without ratification by one-half of the State Legislatures as required under Article 368(2). Therefore, Paragraph 7 was declared unconstitutional.

Scope of Judicial Review: While upholding judicial review, the Court clarified that courts should ordinarily not interfere at an interlocutory stage during the pendency of disqualification proceedings before the Speaker. Judicial review would generally be available only after the Speaker delivers a final decision. The Court held that the Speaker’s orders could be challenged on grounds such as: Mala fides; Violation of constitutional mandate; Non-compliance with principles of natural justice; or Perversity.

Doctrine of Severability: The Court applied the Doctrine of Severability and held that Paragraph 7 was severable from the remaining provisions of the Tenth Schedule. Since the Anti-Defection Law could function independently without Paragraph 7, the invalidity of that paragraph did not affect the validity of the rest of the Schedule. Thus, the remainder of the Tenth Schedule continued to remain constitutionally valid.