Quick answer
No. In Kihoto Hollohan v. Zachillhu (1992), a five-judge Constitution Bench of the Supreme Court upheld the anti-defection law in the Tenth Schedule. It also held that the Speaker or Chairman deciding disqualification acts as a tribunal, and that the decision is open to judicial review. Paragraph 7, which tried to bar all courts, was declared invalid. Courts can review the final decision under Articles 136, 226 and 227 for violation of constitutional mandates, mala fides (bad faith), breach of natural justice, and perversity. Ordinarily they do not intervene before the Speaker decides.
The law: the Tenth Schedule
The Tenth Schedule was added by the Constitution (Fifty-second Amendment) Act, 1985, and operates through Articles 102(2) and 191(2). Paragraph 6(1) says questions of disqualification on the ground of defection are decided by the Chairman or Speaker, and that "his decision shall be final". Paragraph 6(2) deems these proceedings to be proceedings in Parliament or the State Legislature. Paragraph 7 said that no court shall have any jurisdiction in matters connected with such disqualification.
The case
Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, Supreme Court of India. The operative conclusions were given on 12 November 1991 and the reasons on 18 February 1992. Bench: M.N. Venkatachaliah, K. Jayachandra Reddy and S.C. Agrawal, JJ. (majority) and L.M. Sharma and J.S. Verma, JJ. (dissenting). The majority upheld the Tenth Schedule. It held that Paragraph 7 needed ratification by the States under the proviso to Article 368(2), so it was invalid, but it could be severed from the rest of the Schedule.
Key holdings of the majority
- The Schedule is valid: it does not violate the basic features of parliamentary democracy, and it does not create a non-justiciable area (one that courts cannot examine).
- Speaker as tribunal: the power to decide disputed disqualifications is a judicial power. The Speaker or Chairman acts as a tribunal while exercising it.
- Finality is not exclusion: the finality clause in Paragraph 6(1) is valid. It does not take away judicial review under Articles 136, 226 and 227.
- Grounds of review: violation of constitutional mandates, mala fides, non-compliance with the rules of natural justice, and perversity.
- Paragraph 6(2): it gives only an immunity like that in Articles 122(1) and 212(1), protecting the proceedings from challenge for mere irregularities of procedure.
- Timing: judicial review does not cover any stage before the Speaker's decision, and no quia timet action (a suit to prevent a feared future harm) lies. The only exception is an interlocutory (interim) disqualification or suspension with grave, immediate and irreversible consequences.
The dissenting judges held that, without ratification, the whole Fifty-second Amendment Act was invalid, not merely Paragraph 7.
| Question | Speaker or Chairman | Courts |
|---|---|---|
| Who decides disqualification first? | The Speaker or Chairman, under Paragraph 6(1) | Not the courts, ordinarily |
| Can the decision be challenged? | The decision is "final" only in a limited sense | Yes, under Articles 136, 226 and 227 on the recognised grounds |
| Interference before the decision? | The proceedings continue | Only for interim disqualification or suspension with grave and irreversible effects |
Farhan, an MLA, is disqualified by the Speaker on a petition alleging that he voluntarily gave up membership of his party. The Speaker decides without giving Farhan any hearing. Farhan cannot go to court while the petition is pending. Once the Speaker decides, Farhan can file a writ petition under Article 226, and the High Court can set aside the order for breach of natural justice.
Later developments
Paragraph 3 of the Tenth Schedule (split in a party) was omitted by the Constitution (Ninety-first Amendment) Act, 2003. In Subhash Desai v. Principal Secretary, Governor of Maharashtra (11 May 2023), the Supreme Court relied on Kihoto Hollohan. It held that the Court cannot ordinarily decide disqualification petitions at the first instance and that the Speaker must decide them within a reasonable period. The same case referred the Speaker-removal rule in Nabam Rebia v. Deputy Speaker to a larger bench because of a possible conflict with Kihoto Hollohan.
Exam point
Kihoto Hollohan (1992): the Tenth Schedule is valid, and Paragraph 7 is invalid for want of ratification but severable. The Speaker acts as a tribunal, and the decision is subject to judicial review for constitutional violation, mala fides, breach of natural justice and perversity. There is no interference before the decision.
