LexKIHOTO HOLLOHAN versus ZACHILLHU AND OTHERS
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
KIHOTO HOLLOHAN
v.
ZACHILLHU AND OTHERS
NOVEMBER 12, 1991/FEB. 18, 1992
B
[LAUT MOHAN SHARMA, M.N. VENKATACHALIAH, J.S.
c
VERMA, K. JAYACHANDRA REDDY AND S.C. AGRAWAL, JJ.]
Constitlllion of India, 1950:
Articles 102(2). !91(2), Temh Sched11/e inserted by Constit11tion (Fifty-
Second Amendment) Act, 1985-Anti-defection /aw-Object and Con-
stitllfionality of
Tenth Sched11k-Para 2-Membcrs of Parliament/State Legis/anlfes-
Disq11a/ificatio11 011 account of defection-Whether rio/ative of ri!}lls and
D ji-eedom cm·isaged by Article 105.
Para 2( l)(b)-Expression "anr directio11'"--<:onstmctio11 of-fVhether
whip/direction should clear~)' indicate that roting/abstention fronz voting con-
tra1)' to it 1t'011/d incur disqualification.
E
Paragraph 6-Speake10/Chain11cn-Power to decide disp11ted dis-
qualification of a Member of a H01m-Xat11re of
Speakcrs!C"hainnan-f-Vhcrhcr act as Trihunal and satisfy requiren1c11ts
of independent adjudicato1y 111achinery.
F
'Finality' to orders of Speakers/C71ain11en; and inununity to proceedings
1111der para 6( I) analogous tu Articles 122( I) and 212( 1)-ltlzether excludes
judicial reriea:.
Doctrine of neccssit.1-Applicabiii~· of
G
Paragraph 7-Erpression 'no court :shall hal'e any j1uisdiction in respect
11:ith the 111atter connected u:ith disqual({ication of a Afe111her of a House'-
H!f1ether bars jun·sdiction of Supro11c C'ourt and High ('ourts under Articles
136, 226 and 227: wltethcrrcquircd rutification cnrisaged by proriso to Article
368(2): whether can be serered from other prorisions of Schedule.
H
Doctrine of sei·erabiii1'-Applicability of
686
-'""'
KIHOTO HOLLOHAN v. ZACHILLHU
687
Articles 122( I), 212(1 )-Proceedings in Parliament/State Legisla-
A .
ture-Wiletiler justiciable 011 ground of illegality or perversity.
Articles 136, 226, 227-<Jrders under Paragraph fr-Scope of Judicial
review-J'lhether confined to jurisdictional e"ors only.
Article 368-Constitutional ame11dme11t-Amending powen--Scope,
B
object, nature and /imitations explained.
Extinction of rights and restriction of remedy for enforcement of
1ight----Distinction between-Extinction of remedy without curtailing
riglu-M!/1ether makes a change in the right.
Adnzinistrative Laiv :
Judicial review-Statute-Finality and ouster clauses-Meaning, object
and scope of
Practice & Procedure :
Interlocutory orders-Purpose of.
H1ords and Phrases :
'Ad111inistration of Justice', 'Court', 'final' and 'Tribunal' 111ea11ing of.
c
D
E
By the Constitution (Fifty-Second Amendment) Act, 1985 (popularly
known as the Anti-defection law) the Tenth Schedule was inserted in the
Constitution of India providing for disc1ualitication of a Member of either
House of Parliament or of a State Legislature found to have defected from
F
continuing as a fvlember of the House.
Paragraph 2 of the Tenth Schedule states that a Member of a House
would incur disqualification if he voluntarily gives up his membership of
the part)· by which he was set up as a candidate at the election, or if he
without obtaining prior permission of the political party to which he G
belongs votes or abstains from voting in the House contrary to "any
direction" issued by such political party and such voting or abstention has
not been condoned by such political party within 15 days from the date of
such voting ·or abstention; or if a l\'lember elected otherwise than as a
candidate set up by any political party joins a political party after the H
688
SUPREME COURT REPORTS
(19'J2) 1 S.C.R.
A election; or, if a nominated Member joins 11ny poUtical party after expiry
of six months from the date be took bis seat. Paragraph 6(1) states that
the question of disqualification shall be referred for decision of the Chair·
men/Speaker of the House and bis decision shall be final. It rurtber ·
provides that 1ucb question in respect or Chairman/Speaker shall be·
B referred for decision of such Member or the House as tlie House may eled
in this behalf. According to Parilgrapb 6(2) all proceedings under para
6(1) shall be deemed to be proceedings in Parliame11t/Leglslature ol a
. House within the meaning of Article 122/212. Parilgrapb 7 states that no
court shall have jurisdiction In respect or any matter connected with the
>..;....
C disqualification of a Member of a House.
D
A large number of petitions were filed before various High Courts
as well as this Court challenging the constitutfonality or the Amendment. Excerpt shown. Read the full judgment & AI analysis in Lexace.