Kihoto Hollohan v Zachillhu

Facts

• The Constitution (Fifty-second Amendment) Act, 1985 inserted the Tenth Schedule, providing for disqualification of legislators on the ground of defection.
• Paragraph 6 made the question of disqualification triable by the Chairman or the Speaker, and declared his decision to be final.
• Paragraph 7 provided that no court should have any jurisdiction in respect of any matter connected with such disqualification.
• The amendment had been passed by the special majority in each House but had not been ratified by the Legislatures of any State.
• Petitioners contended that the Schedule as a whole subverted parliamentary democracy by suppressing dissent, and that Paragraph 6 made the Speaker, a partisan officeholder, the sole judge in a matter affecting the composition of the House.
• It was further contended that Paragraph 7 affected Arts.136, 226 and 227, so that ratification was mandatory.

Issue

1. Whether the Tenth Schedule is valid; whether Paragraph 7 required ratification; and what is the nature of the Speaker's function under Paragraph 6 and the extent to which his decision may be reviewed.

Held

• By majority the Schedule was upheld and Paragraph 7 struck down. Paragraph 7, in excluding the jurisdiction of all courts, made a change in Chapter IV of Part V and Chapter V of Part VI, and therefore attracted clause (c) of the proviso to Art.368(2); absent ratification by the Legislatures of at least half the States, it was void. Applying the doctrine of severability, the invalidity of Paragraph 7 did not carry down the rest of the Schedule, which represented a distinct and workable scheme. On Paragraph 6, the majority held that in deciding a disqualification the Speaker functions not as the presiding officer of the House but as a tribunal, so that his order is subject to the jurisdiction of the courts under Arts.136, 226 and 227. That jurisdiction is however confined: review lies for infirmities based on violation of a constitutional mandate, mala fides, non-compliance with the rules of natural justice, and perversity. There can be no interlocutory interference with the proceedings, and the Court will act only against the final order. The minority, Sharma and Verma JJ, held that the whole Schedule was invalid for want of ratification, Paragraph 7 not being severable from it.

Ratio Decidendi

An amendment which in substance takes away the jurisdiction of the superior courts makes a change in the provisions relating to those courts, whatever form it takes, and so requires State ratification. The severability of the remainder follows from the fact that the Schedule can operate coherently without the ouster clause, since the adjudicatory machinery in Paragraph 6 stands on its own. As to the Speaker, the finality attached to his decision by Paragraph 6 goes to the merits and not to jurisdiction; a body whose function is to determine rights by applying law to facts is a tribunal, and the constitutional jurisdiction over tribunals cannot be excluded by describing the decision as final.