Kihoto Hollohan vs Zachillhu (1992) — Anti-Defection Law and Judicial Review

Kihoto Hollohan vs Zachillhu (1992) is the leading Supreme Court case on India’s anti-defection law contained in the Tenth Schedule of the Constitution. The Court had to decide whether this law is constitutional and how far courts can review the Speaker’s decision to disqualify members for defection.

In a 3:2 majority, the Court upheld the validity of the Tenth Schedule. It agreed that preventing political defections is important to protect the stability of governments and the voter’s mandate. However, it struck down Paragraph 7, which tried to completely bar judicial review, because it affected the basic structure and was not properly ratified by the States.

The Court also held that the Speaker’s disqualification orders are open to judicial review on limited grounds such as mala fides, bias, or violation of constitutional principles. The case therefore creates a balance between party discipline and judicial oversight.

• Constitutional validity of the Tenth Schedule: Does the anti-defection law violate the basic structure of the Constitution, especially democracy and freedom of speech of legislators?
• Scope of judicial review: Can courts review the Speaker’s decision on disqualification, or is that decision final and immune from challenge?
• Ratification under Article 368(2): Was the 52nd Constitutional Amendment, especially Paragraph 7 of the Tenth Schedule, invalid because it was passed without ratification by half of the States?
• Meaning of defection-related terms: Are expressions like “defection”, “split” and “merger” too vague and open to misuse?
• Legislative immunity vs. judicial control: How do Article 105(2) (immunity for speech and vote in Parliament) and the power of courts to ensure fairness work together?

The Supreme Court delivered a 3:2 majority judgment. The majority upheld the main part of the Tenth Schedule but removed its attempt to completely block judicial review.

1. Tenth Schedule is constitutional: The Court held that the anti-defection law is a valid tool to protect democracy. It prevents unprincipled defections that weaken governments and public faith in the electoral process.
2. Paragraph 7 struck down: Paragraph 7 tried to bar courts from hearing disputes about disqualification. The Court held that removing judicial review affects the basic structure and also changes the powers of High Courts and the Supreme Court. Because there was no State ratification, Paragraph 7 was declared invalid.
3. Doctrine of severability: Instead of striking down the whole Tenth Schedule, the Court used the doctrine of severability. It removed only Paragraph 7 and allowed the rest of the Schedule to stand.
4. Speaker’s decisions are reviewable: The Court accepted that the Speaker acts in a quasi-judicial capacity while deciding defection issues. Therefore, the Speaker’s decisions are open to judicial review on grounds like mala fides, violation of constitutional mandates or non-observance of natural justice.
5. Balance of powers: The judgment states that while the legislature may enforce party discipline through the Tenth Schedule, the judiciary remains the guardian of the Constitution and can step in to correct unfair or unconstitutional disqualification orders.

• The Tenth Schedule is a valid constitutional device to curb political defections and protect the stability and integrity of parliamentary democracy.
• Judicial review is part of the basic structure. Parliament cannot completely exclude the courts from examining the validity of disqualification decisions.
• Paragraph 7 of the Tenth Schedule is unconstitutional because it affects the jurisdiction of High Courts and the Supreme Court and was not ratified by half of the States as required by Article 368(2).
• The Speaker’s decision under the Tenth Schedule is subject to judicial review on limited but important grounds such as mala fides, perversity and violation of constitutional provisions.
• The judgment creates a structural balance between the need for party discipline and the need to maintain fairness and constitutional control through the judiciary.

Kihoto Hollohan vs Zachillhu is a cornerstone case for students and practitioners of constitutional law. It is regularly cited in debates on the anti-defection law, Speaker’s powers, party discipline and the basic structure doctrine.

The decision shows that the Court supports strong measures against opportunistic defections, but it will not allow any authority, including the Speaker, to act without constitutional checks. It also clarifies how far a constitutional amendment can go before it must be ratified by States.

For exam purposes, this case is a mandatory citation whenever you answer questions on anti-defection, judicial review, basic structure, Speaker’s powers or party system in India.

Mnemonic: “SPEAK”

Use SPEAK to remember the core points of Kihoto Hollohan:

• S — Schedule stands: Tenth Schedule stands valid to control defection.
• P — Paragraph 7 struck: Paragraph 7 (bar on judicial review) is invalid.
• E — Elections protected: Law protects the voter’s mandate and stable governments.
• A — Appeals allowed: Judicial review of Speaker’s decision is allowed.
• K — Keeps balance: The case keeps a balance between party discipline and judicial checks.

3-Step Exam Hook

1. Problem: Rampant political defections were breaking governments and betraying public trust.
2. Solution: The Tenth Schedule gave Speaker-based disqualification to control defection.
3. Balance: The Supreme Court kept the law but opened Speaker’s decision to judicial review by deleting Paragraph 7.

Defection

When an elected member leaves their political party or votes against it in the House, usually for personal or political gain.

Tenth Schedule

A part of the Indian Constitution, added by the 52nd Amendment, which lays down rules and grounds for disqualifying legislators for defection.

Judicial Review

The power of the High Courts and the Supreme Court to examine the validity of laws and decisions and strike them down if they violate the Constitution.

Doctrine of Severability

A principle which allows courts to strike down only the invalid part of a law and keep the rest of the law alive, if the valid portion can stand independently.

Basic Structure Doctrine

A judicial doctrine which says that Parliament cannot amend the basic features of the Constitution, such as judicial review, democracy and federalism, even using its amendment power.

Speaker (of the House)

The presiding officer of the Lok Sabha or State Legislative Assembly, who conducts proceedings and, under the Tenth Schedule, decides on defection-related disqualifications.