Kihoto Hollohan Vs. Zachillhu & Ors [1992] INSC 53 (18 February 1992)
Venkatachalliah, M.N. (J) Venkatachalliah, M.N. (J) Sharma, L.M. (J) Verma, Jagdish Saran (J) Reddy, K. Jayachandra (J) Agrawal, S.C. (J)
CITATION: 1992 SCR (1) 686 1992 SCC Supl. (2) 651 JT 1992 (1) 600 1992 SCALE (1)338
ACT:
Constitution of India,1950:
Articles 102(2), 191(2, Tenth schedule inserted by constitution (Fifty-Second amendment) Act, 1985-Anti- defection law-Object and Constitutionality of.
Tenth Schedule-Para 2-Members of Parliament/State Legislatures-Disqualification on account of defection- whether violative of rights and freedom envisaged by article 105.
Para 2(1)(b)-expression "any direction"-Construction of-Whether whip/direction should clearly indicate that voting/abstention from voting contrary to it would incur disqualification.
Paragraph 6-Speakers/Chairmen-Power to decide disputed disqualification of a Member of a House-Nature of.
Speakers/Chairman-whether act as tribunal and satisfy requirements of independent adjudicator machinery.
`Finality' to orders of Speakers/ Chairmen; and immunity to proceedings under para 6(1) analogous to Articles 122(1) and 212(1)-Whether excludes judicial review.
Doctrine of necessity-Applicability of.
Paragraph 7-Expression `no court shall have any jurisdiction in respect with the matter connected with disqualification of a Member of a House'-Whether bars jurisdiction of Supreme Court and High Courts under Articles 136, 226 and 227: whether required ratification envisaged by proviso to Article 368(2): whether can be severed from other provisions of Schedule.
Doctrine of severability-Applicability of.
687 Articles 122(1),212(1)-Proceedings in Parliament/State Legislature-Whether justiciable on ground of illegality or perversity.
Articles 136, 226, 227-Orders under Paragraph 6-Scope of Judicial review-Whether confined to jurisdictional errors only.
Article 368-Constitutional amendment-Amending powers- Scope,object, nature and limitations explained.
Extinction of rights and restriction of remedy for enforcement of right-Distinction between-Extinction of remedy without curtailing right-Whether makes a change in the right.
Administrative Law :
Judicial review-Statute-Finality and ouster clauses- Meaning, object and scope of.
Practice & Procedure :
Interlocutory orders-Purpose of.
Words and Phrases :
`Administration of Justice', `Court', `final' and `Tribunal'meaning of.
HEAD NOTE:
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 disqualification of a Member of either House of Parliament or of a State Legislature found to have defected from continuing as a Member 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 party 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 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 Member elected otherwise than as a candidate set up by any political party joins a political party after the 688 election; or, if a nominated Member joins any political party after expiry of six months from the date he took his seat. Paragraph 6(1) states that the question of disqualification shall be referred for decision of the chairmen/Speaker of the House and his decision shall be final. It further provides that such question in respect of Chairman/Speaker shall be referred for decision of such Member of the House as the House may elect in this behalf.
according to Paragraph 6(2) all proceedings under para 6(1) shall be deemed to be proceedings in Parliament/Legislature of a House within the meaning of Article 122/212. Paragraph 7 states that no court shall have jurisdiction in respect of any matter connected with the disqualification of a Member of a House.
A large number of petitions were filed before various High Courts as well as this Court challenging the constitutionality of the Amendment. This Court transferred to itself the petitions pending before the High Courts and heard all the matters together.
The challenge was mainly on the grounds that Paragraph 7 of the Tenth Schedule, in terms and ineffect sought to make a change in chapter IV of Part V and Chapter V of Part VI of the Constitution as it takes away the jurisdiction of the Supreme court under Article 136 and that of the High Courts under Articles 226 and 227 of the constitution, and, therefore, the Bill before presentation to the President for assent would require to be ratified by the legislatures of not less than one-half of the States by resolution to that effect as envisaged by the proviso to Article 368(2);
that in the absence of such a ratification the whole Amendment Bill was an abortive attempt to bring about the amendment indicated therein; that even assuming that the amendment does not attract the proviso to Article 368(2), Paragraph 7 of the Schedule is liable to be struck down as it takes away the power of judicial review; that the very concept of disqualification for defection is violative of the fundamental values and principles under-lying parliamentary democracy and violates an elective representative's freedom of speech, right to dissent and freedom of conscience and is destructive of a basic feature of the Constitution; that the investiture of power to adjudicate disputed defections in the Chairmen/Speakers, who being nominees of political parties are not obliged to resign their party affiliations, does not stand the test of an independent and impartial adjudicatory machinery and is, therefore, violative of the basic feature of 689 the constitution. It was also contended that the expression "any direction" in Paragraph 2(1)(b) of the Schedule might be unduly restrictive of the freedom of speech, and the right of dissent which may itself be obnoxious to and violative of constitutional ideals and values.
The respondents contended that the Tenth Schedule created a nonjusticiable constitutional area dealing with certain complex political issues which have no strict adjudicatory disposition and the exclusion of this area is constitutionally preserved by imparting a finality to the decision of the Speakers/Chairmen by deeming whole proceedings as those within Parliament/House of legislature envisaged in Articles 122 and 212 and further excluding the Court's Jurisdiction under Paragraph 7; that no question of ouster of judicial review would at all arise inasmuch as the Speaker/chairman exercising power under Paragraph 6(1) of the Tenth Schedule function not as a statutory tribunal but as a part of state's Legislative department; and that having regard to the political issues, the subject matter is itself not amenable to judicial power but pertains to the constitution of the House and the legislature is entitled to deal with it exclusively.
The Court on 12.11.1991 gave its operative conclusions, indicating reasons to follow and by its judgment dated 18.2.1992 gave the reasons.
On the questions whether:
(1) the Tenth Schedule to the constitution inserted by the constitution (Fifty-Second Amendment) Act, 1985, seeking to penalise and disqualify elected representatives is violative of the fundamental principles of Parliamentary democracy and is, therefor, destructive of the basic feature of the Constitution;
(2) Paragraph 7 of the Tenth Schedule in terms and in effect brings about a change in operation and effect of Articles 136,226 and 227 of the Constitution and, therefore, the Bill introducing the amendment would require ratification as envisaged by the proviso to Article 368(2);
(3) the non- compliance with the proviso to Article 368(2) would render the entire Bill vitiated and an abortive attempt to bring about a valid amendment or would Paragraph 7 alone be invalidated with the application of the doctrine of severability;
(4) the Tenth Schedule created a new and non- justiciable constitutional area not amenable to curial adjudicative process; and whether Paragraph 6(1) in imparting a constitutional `finality'to the decisions of Chairmen/Speakers, and paragraph 6(2) in the event of attracting immunity under Articles 122 690 and 212, bar judicial review; (5) the Chairmen/Speakers satisfy the requirements of an independent adjudicatory machinery or whether the investiture of the determinative and adjudicative jurisdiction in them under the Tenth Schedule would vitiate the provision on the ground of reasonable likelihood of bias.
Dismissing Writ Petition No.17 of 1991 and remitting Writ Petition Rule No.2421 of 1990 (subject matter of TP No. 40/91) to the High Court of Guwahati, this Court
HELD: (By the Court) (i) Paragraph 7 of the Tenth Schedule to the Constitution in terms and in effect excludes the jurisdiction of all Courts including the Supreme Court and High courts, and brings about a change in the operation and effect of Articles 136, 226 and 227 of the constitution of India, and therefore, the amendment would require ratification in accordance with the proviso to Articles 368(2) of the constitution of India.
[pp. 711F-G;714G] (ii) The finality clause in Para 6(1) of the Tenth Schedule to the Constitution is not decisive. Such finality,being for the statute alone, does not exclude extraordinary jurisdiction of the Supreme Court under Article 136 and of the High Courts under Articles 226 and 227 of the Constitution.
[713E-F; 788B-C] (iii) The legal fiction in para 6(2) of the Tenth Schedule brings a proceeding under para 6(1) within the ambit of clause (1) of Article 122/212 of the Constitution, and, therefore, makes it justiciable on the ground of illegality or perversity inspite of the immunity it enjoys to a challenge on the ground of "irregularity of procedure." [713G; 788E-F] Per Majority (M.N. Venkatachaliah. K. Jayachandra Reddy
(i) Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defection and, therefore, is a severable part. The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7. [p.712E-F] 691
(ii) There is nothing in the proviso to Article 368(2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the amendment requires ratification from the rest of the provisions of such Bill which do not attract and require such ratification. Having regard to the mandatory language of Article 368(2) that "thereupon the Constitution shall stand amended" the operation of the proviso should not be extended to constitutional amendments in a bill which can stand by themselves without such ratification. [711G-H; 712- A-B]
(iii) The Constitution (Fifty-Second Amendment) Act, 1985 in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, to the extent of its provision which are amenable to the legal-sovereign of the amending process of the Union Parliament cannot be over borne by the proviso to Article 368(2) which cannot operate in that area.
[712B-C]
(iv) Paragraph 2 of the Tenth schedule to the constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience; nor does it violate any rights or freedom under Article 105 and 194 of the Constitution. [712F-H] The provisions are salutory and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections.
[712H, 713A]
(v) The Tenth Schedule does not, in providing for an additional ground for disqualification and for adjudication of disputed disqualifications, seek to create a non- justiciable constitutional area. [p. 769A-B]
(vi) The Speakers/Chairmen while functioning under the Tenth Schedule exercise judicial power and act as Tribunal adjudicating rights and obligations under the Tenth schedule, and their decisions in that capacity are amenable to judicial review. [713C]
(vii) Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairman is valid. But the concept of statutory finality embodied therein does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, 692 male fides, non-compliance with Rules of Natural Justice and perversity are concerned. [713E-F]
(viii) The deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Article 122(1) and 212(1) of the constitution to protect the validity of proceedings from mere irregularities of procedure and confines the scope of the fiction accordingly. [713G-H, 714A] Spl. Ref. No.1 of 1964 (Keshav Singh's case) [1965] 1 SCR 413,referred to.
(ix) Having regard to the constitutional scheme in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen; and no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence. [713D-E]
(x) The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far reaching decisions in the Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in them should not be considered exceptionable.
[714B-C] Per Lalit Mohan Sharma and J.S. Verma, JJ.-contra
(i) Without ratification, as required by the mandatory special provision prescribed in the proviso to Article 368(2) of the Constitution the stage of presenting the Constitution (Fifty-Second) Amendment Bill for assent of the President did not reach and, therefore, the so-called assent of the President was non est.[715B-C]
(ii) In the absence of ratification it is not merely paragraph 7 but the entire Constitution (Fifty-Second Amendment) Act, 1985 which is rendered unconstitutional, since the constitutional power was not exercised as prescribed in Article 368, and, therefore, the Constitution did not stand amended in accordance with the terms of the Bill providing for amendment. [715D-E] 693
(iii) Doctrine of severability cannot be applied to a Bill making a constitutional amendment where any part thereof attracts the proviso to clause (2) of Article 368. [715F]
(iv) Doctrine of severability is not applicable to permit striking down para 7 alone saving the remaining provisions of the Bill making the Constitutional Amendment on the ground that Para 7 alone attracts the proviso the Article 368(2). [715G]
(v) The Speaker's decision disqualifying a Member of a House under paragraph 6(1) of the Tenth Schedule is not immune from judicial scrutiny. It is a nullity liable to be so declared and ignored. [782G]
(vi) An independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House is envisaged as an attribute of the democratic system which is a basic feature of our Constitution. The tenure of the Speaker, who is the authority in the Tenth schedule to decide this dispute, is dependent on the continuous support of the majority in the House and, therefore, he does not satisfy the requirement of such an independent adjudicatory authority; and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature. [716B-C]
(vii) Consequently, the entire Constitution (Fifty- Second Amendment) Act, 1985 which inserted the Tenth Schedule together with clause (2) in Articles 102 and 191, must be declared unconstitutional. [716C-D] (viii) Accordingly, all decisions rendered by several Speakers under the Tenth Schedule must also be declared nullity and liable to be ignored.
[p.716D] Per Venkatachaliah : J.1.1.A constitutional document outlines only broad and general principles meant to endure and be capable of flexible application to changing circumstances-a distinction which differentiates a statute from a Charter under which all statutes are made. [726G-H] Cooley on "Constitutional Limitation" 8th Edn. Vol.I p.129, referred to.
1.2. In considering the validity of a constitutional amendment the changing and the changed circumstances that compelled the amendment 694 are important criteria. [727B] U.S.Supreme Court in Maxwell v. Dow 44 Lawyer's Edition 597 at p. 605, referred to.
1.3. The Tenth Schedule is a part of the Constitution and attracts the same canons of construction as are applicable to the expounding of the fundamental law. One constitutional power is necessarily conditioned by the other as the Constitution is one "coherent document". In expounding the process of the fundamental law the Constitution must be treated as a logical-whole. [726D-E]
1.4. The distinction between what is constitutionally permissible and what is outside it is marked by a `hazy-gray line'and it is the Court's duty to identify, "darken and deepen" the demarcating line of constitutionality - a task in which some element of Judges' own perceptions of the constitutional ideals inevitably participate. There is no single litmus test of constitutionality. Any suggested sure decisive test, might after all furnish a "transitory delusion of certitude" where the "complexities of the strands in the web of constitutionality which the Judge must alone disentangle" do not lend themselves to easy and sure formulations one way or the other. It is here that it becomes difficult to refute the inevitable legislative element in all constitutional adjudications. [730D-F] "Theory of Torts" American Law Review 7[1873]; Justice Oliver Wendel Holmes-Free Speech and the Living Constitution by H.L. Pohlman 1991 Edn. p.223, referred to.
Amalgamated Society of Railway Servants v. Osborne, 1910 A.C. 87, referred to.
1.5. A political party functions on the strength of shared beliefs. Any freedom of its Members to vote as they please independently of the political party's declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance-nay, indeed, its very survival. Paragraph 2(1)(b) of the Tenth Schedule gives effect to this principle and sentiment by imposing a disqualification on a Member who votes or abstains from voting contrary to "any directions" issued by the political 695 party. The provision, however, recognising two exceptions:
one when the Member obtains from the political party prior permission to vote or abstain from voting and the other when the Member has voted without obtaining such permission...his action has been condoned by the political party. This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting contrary to the direction of the party to which he belongs.[734D-E; 735B-C] Griffith and Ryle on "Parliament, Functions, Practice & Procedure" 1989 Edn. page 119, referred to.
1.6. In a sense anti-defection law is a statutory variant of its moral principle and justification underlying the power of recall. What might justify a provision for recall would justify a provision for disqualification for defection. Unprincipled defection is a political and social evil. It is perceived as such by the legislature. The anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct- whose awkward erosion and grotesque manifestations have been the bane of the times-above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation. This legislative wisdom and perception should be deferred to. The choices in constitutional adjudications quite clearly indicate the need for such deference.[739D-G] `Constitutional Reform, - Reshaping the British Political System, by Rodney Brazier. 1991 Edn.pp.48-53, referred to.
1.7.The Tenth Schedule does not impinge upon the rights or immunities under Article 105(2) of the Constitution. The freedom of speech of a Member is not an `absolute freedom.
That apart, the provisions of the Tenth Schedule do not purport to make a Member of a House liable in any "Court" for anything said or any vote given by him in Parliament.[732H; 733C] Jyoti Basu & Ors. v.Debi Ghosal & Ors., [1982] 3 SCR 318, referred to.
2.1. A provision which seeks to exclude the jurisdiction of Courts is strictly construed. [742E] H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. v. Union of India, [1971] 1 SSC 85, referred to.
696 Mask & Co.v.Secretary of State, AIR 1940 P.C. 105, referred to.
2.2 The rules of construction are attracted where two or more reasonably possible constructions are open on the language of the statute. [742F]
2.3. As regards Paragraph 7 to the Tenth Schedule, both on its language and having regard to the legislative evolution of the provision, the legislative intent is plain and manifest. The words "no Courts shall have any jurisdiction in respect of any matter connected with the disqualification of a member" are of wide import and leave no constructional options. This is reinforced by the legislative history of the anti-defection law. The Constitution (Fifty-Second Amendment) Bill for the first time envisaged the investitute of the power to decide disputes on the Speakers or the Chairmen whereas the two similar Constitution (32nd and 48th amendment) Bills, (which had lapsed) did not contain any clause ousting the jurisdiction of the Courts. The purpose of the enactment of Paragraph 7, as the debates in the House indicate, was to bar the jurisdiction of the Courts under Articles 136, 226 and 227 of the Constitution. {742F-G, H, 743B]
2.4. The changes in Chapter IV of Part V and Chapter V of the Part VI of the constitution envisaged by the proviso to Article 368(2) need not be direct. The change could be either "in terms of or in effect". It is not necessary to change the language of Articles 136 and 226 of the Constitution to attract the proviso. If in effect these Articles are rendered ineffective and made inapplicable where these articles could otherwise have been invoked or would, but for Paragraph 7, have operated there is `in effect'a change in those provisions attracting the proviso. [p. 745C-D] 2.5. Though the Amendment does not bring in any change directly in the language of Articles 136,226 and 227 of the constitution,, however, in effect Paragraph 7 curtails the operation of those Articles respecting matter falling under the Tenth Schedule. There is a change in the effect in Articles 136, 226 and 227 within the meaning of clause (b) of the proviso to Article 368 (2). Paragraph 7, therefore, attracts the proviso and ratification was necessary. [745F] Sri Sankari Prasad Singh Deo v. Union of India & State of Bihar, [1952] SCR 89 Sajjan Singh v. State of Rajasthan, [1965] 1 SCR 933, referred to.
697
3.1 The criterion for determining the constitutional validity of a law is the competence of the law making authority (which would depend on the ambit of the Legislative power and the limitations imposed thereon as also on mode of exercise of the power). While examining the constitutional validity of laws the doctrine of severability is applied which envisages that if it is possible to construe a statute so that its validity can be sustained against a constitutional attack it should be so construed and that when part of a statute is valid and part is void, the valid part must be separated from the invalid part. [746C; 747D] Cooley's constitutional Limitations; 8th Edn. Vol. 1, p. 359-360, referred to.
R.M.D. Chamarbaughwalla v. Union of India, [1957] SCR 930; Shri Kesavananda Bharti Sripadagalavaru v. State of Kerala, [1973] Supp. 1 SCR; Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1981] 1 SCR 206 and Sambhamurthy & Ors. etc.v. State of Andhra Pradesh & Anr., [1987] 1 SCR 879, referred to.
3.2. Though the amending power in a constitution is in the nature of a constituent power and differs in content from the Legislative power, the limitations imposed on the constituent power may be substantive as well as procedural.
Substantive limitations are those which restrict the field of exercise of the amending power and exclude some areas from its ambit. Procedural limitations are those which impose restrictions with regard to the mode of exercise of the amending power, e.g. the limitation requiring a special majority under Article 368(2) of the constitution is a procedural one. Both these limitations, however, touch and affect the constituent power itself, and impose a fetter on the competence of Parliament to amend the Constitution and any amendment made in disregard of these limitations would go beyond the amending power and would invalidate its exercise. [746C-E, 747C]
3.3. Although there is no specific enumerated substantive limitation on the power in Article 368, but as arising from very limitation in the word `amend', a substantive limitation is inherent on the amending power so that the amendment does not alter the basic structure or destroy the basic features of the Constitution. [747A-B]
3.4. The proviso to Article 368(2) was introduced with a view to giving 698 effect to the federal principle. Its scope is confined to the limits prescribed therein and is not construed so as to take away the power in the main part of Article 368(2).
[750C-D] Madras & Southern Mahratta railway company v. Bazwada Municipality, (1944) 71 I.A. 113 and Commissioner of Income Tax, Mysore v. Indo- Mercantile Bank Ltd.(1959), Supp. 2 SCR 256, referred to.
3.5. An amendment which otherwise fulfils the requirements of Article 368(2) and is outside the specified cases which require ratification cannot be denied legitimacy on the ground alone of the company it keeps. [750E] 3.6. The words "the amendment shall also require to be ratified by the legislature" occurring in the proviso to Article 368(2) indicate that what is required to be ratified by the legislatures of the States is the amendment seeking to make the change in the provisions referred to in clauses (a) to (e) of the proviso. The need for and the requirement of the ratification is confined to that particular amendment alone and not in respect of amendments outside the ambit of the proviso. The proviso can have, therefore, no bearing on the validity of the amendments which do not fall within its ambit. [750G-H] 3.7. A composite amendment which makes alterations in the First and Fourth schedules as well as in other provisions of the Constitution requiring special majority under Article 368(2), even though passed by the simple majority and not by special majority, may be upheld in respect of the amendments made in the First and Fourth schedules. [755D] Bribery Commissioner v. Pedrick Ranasinghe, 1965A.C.172, referred to.
3.8. There is really no difference in principle between the condition requiring passing of the Bill by a special majority before its presentation to the President for assent contained in Article 368(2) and the condition for ratification of the amendment by the legislatures of not less than one-half of the States before the Bill is presented to the President for assent contained in the proviso. [753D-E]
3.9. The principle of severability can be equally applied to a composite amendment which contains amendment in provisions which do not require ratification by States as well as amendment in provisions which require such ratification and by application of the doctrine of severability, 699 the amendment can be upheld in respect of the amendments which do not require ratification and which are within the competence of Parliament alone. Only these amendments in provisions which require ratification under the proviso need to be struck down or declared invalid. [753E-F]
3.10. The test of severability requires the Court to ascertain whether the legislature would at all have enacted the law if the severed part was not the part of the law and whether after severance what survives can stand independently and is workable. [753G]
3.11. The main purpose underlying the Constitutional (Fifty-Second Amendment) Act and introduction of the Tenth Schedule is to curb the evil of defection which was causing immense mischief in our body-politic. The ouster of jurisdiction of Courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedule if it had known that Paragraph 7 was not valid, Nor can it be said that the rest of the provisions of the Tenth schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 is therefore, severable from the rest of the provisions. [pp.754A-C] 4.1. Democracy is a basic feature of the Constitution.
Whether any particular brand or system of Government by itself, has this attribute of a basic feature, as long as the essential characteristics that entitle a system of government to be called democratic are otherwise satisfied is not necessary to be gone into. Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the Constitution. So is the need to protect and sustain the purity of the electoral process.
That may take within it the quality, efficacy and adequacy of the machinery for resolution of electoral disputes.
[p.733F-G]
4.2. In the Indian constitutional dispensation the power to decide a disputed disqualification of an elected Member of the House is not treated as a matter of privilege and the power to resolve such electoral dispute is clearly judicial and not legislative in nature. The power to decide disputed disqualification under Paragraph 6(1) is pre eminantly of a judicial complexion. [pp.759G.763C] Indira Nehru Gandhi v. Raj Narain, [1976] 2 SCR 347;
Special Reference 700 No. 1 of 1964, [1965] 1 SCR 413 & Express Newspaper Ltd. v. Union of India, AIR 1958 SC 578,, referred to.
Australian Boot Trade Employees Federation v. Whybrow & Co., 1910 10 CLR 266, referred to.
4.3. The word "Courts" is used to designate those Tribunals which are set up in an organised State for the administration of justice. By Administration of Justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish "wrongs". Whenever there is an infringement of a right or an injury, the Courts are there to restore the vinculum juris, which is disturbed.
Where there is a lis an affirmation by one party and denial by another-and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is an exercise of judicial power. That authority is called a Tribunal, if it does not have all the trappings of a court. Thus, the Speaker or the Chairman, acting under Paragraph 6(1) of the Tenth Schedule is a Tribunal.[763G-H, 764E-F, 766B] Associated Cement companies Ltd. v. P.N. Sharma and Anr., [1965] 2 SCR 366 and Harinagar Sugar Mills Ltd. v.Shyam Sunder Jhunjhunwala & Ors., [1962] 2 SCR 339, referred to.
5.1. A finality clause is not a legislative magical incantation which has the effect of telling off Judicial Review. Statutory finality of a decision presupposes and is subject to its consonance with the statute. The principle that is applied by the courts is that in spite of a finality clause it is open to the court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority. An action can be ultra vires for the reason that it is in contravention of a mandatory provision of the law conferring on the authority the power to take such an action. It will also be ultra vires the powers conferred on the authority if it is vitiated by mala fides or is colourable exercise of power based on extraneous and irrelevant consideration. [pp. 755D,765D-E] `Administrative Law' 6th Edn. at p. 720 & Constitutional Fundamentals, the Harmlyn Lectures, 1989 Edn., p.88, referred to.
5.2. The finality clause with the word "final" in paragraph 6(1) of the Tenth schedule does not completely exclude the jurisdiction of the 701 Courts under Articles 136, 226 and 227 of the Constitution. But it does have the effect of limiting the scope of the jurisdiction. If the intendment is to exclude the jurisdiction of the superior Courts, the language would quite obviously have been different. [758H, 759A,765C,758A] Brundaban Nayak v. Election Commission of India & Anr., [1965] 3 SCR 53; Union of India v. Jyoti Prakash Mitter, [1971] 3 SCR 483; Durga. Shankar Mehra v. Reghuraj Singh, AIR 1954 SC 520 and Union of India & Anr. v. Tulsiram Patel & Ors., [1985] Supp. 2 SCR 131, referred to.
5.3. An ouster clause confines judicial review in respect of actions falling outside the jurisdiction of the authority taking such action but precludes challenge to such action on the ground of an error committed in the exercise of jurisdiction vested in the authority because such an action cannot be said to be an action without jurisdiction.
[765F] Anisminic Ltd. v.Foreign commission, [1969] 2 AC 147;
S.E. Asia Fire Bricks v. Non-Metallic Products, 1981 A.C. 363, referred to.
6. The fiction in Paragraph 6(2) attracts an immunity from mere irregularities of procedures. The very deeming provision implies that the proceedings of disqualification are, in fact,. not before the House; but only before the Speaker a specially designated authority. The decision under Paragraph 6(1) is not the decision of the House, nor is it subject to the approval by the House. The decision operates independently of the House. A deeming provision cannot by its creation transcend its own power. There is, therefore, no immunity under Articles 122 and 212 from judicial scrutiny of the decision of the Speaker or Chairman exercising power under Paragraph 6(1) of the Tenth Schedule.
[763D-F]
7. The scope of judicial review under Articles 136, 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6 would be confined to jurisdictional errors only, viz., infirmities based on violation of constitutional mandate, mala fides, non- compliance with rules of natural justice and perversity.
But Judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia- timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings. Exceptions will, however,, have to be made in respect of cases where disqualification of suspension is imposed during the pendency of the 702 proceedings and such disqualification or suspension is likely to have grave,immediate and irreversible repercussions and consequence.[768E-H] Makhan Singh v. State of Punjab, [1964] 4 SCR 797;State of Rajasthan v.Union of India, [1978] 1 SCR 1; Union of India v. Jyoti Prakash Mitter, (supra) and Union of India & Anr. v. Tulsiram Patel & Ors., [1985] Supp. 2 SCR 131, referred to.
8. The office of the Speaker is held in the highest respect and esteem in Parliamentary traditions. The evolution of the institution of Parliamentary democracy has as its pivot the institution of the Speaker. He is said to be the very embodiment of propriety and impartiality. He performs wide ranging functions including the performance of important functions of a judicial character. It would, indeed be unfair to the high traditions of that great office to say that the investiture in it of this jurisdiction would be vitiated for violation of a basic feature . of democracy.
It is inappropriate to express distrust in the high office of the speaker, merely because some of the speakers are alleged, or even found, to have discharged their functions not in keeping with the great traditions of that high office. The Robes of the Speaker do change and elevate the man inside. [770G-H, 771A, 772A, 773A-B] G.V. Mavalankar ; The Office of Speaker, Journal of Parliamentary Information, April 1956, Vol. 2. No. 1 p.33; HOP, Deb. Vol.IX (1954), CC 3447-48 and Erskine May- Parliamentary Practice -20th edition p. 234 and M.N. Kaul and S.L. Shakdher in `Practice and Procedure of Parliament' 4th Edition, referred to.
9.1. The words "any direction" occurring in Paragraph 2(1)(b) of the Tenth Schedule require to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Schedule. Those objects and purposes define and limit the contours of its meaning. The assignment of a limited meaning is not to read it down to promote its constitutionality but because such a construction is a harmonious construction in the context.
There is no justification to give the words the wider meaning. [774H, 775A-B] Parkash Singh Badal & Ors. v. Union of India & Ors., AIR 1987 Punjab & Haryana 263, referred to.
9.2. While construing Paragraph 2(1)(b) it cannot be ignored that 703 under the Constitution members of Parliament as well as of the State Legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the Constitution and the rules and standing orders regulating the Procedure of the House. The disqualification imposed by Paragraph 2(1)(b) must be so construed as not to unduly impinge on the said freedom of speech of a member.
This would be possible if Paragraph 2(1)(b) is confined in its scope by keeping in view the object underlying the amendments contained in the Tenth Schedule namely, to curb the evil or mischief of political defections motivated by the lure of office or other similar considerations. [p. 775C-D]
9.3. In view of the consequences of the disqualification, i.e., termination of the membership of a House, it would be appropriate that the direction or whip which results in such disqualification under Paragraph 2(1)(b) of the Tenth Schedule is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the disqualification under Paragraph 2(1)(b), so that the member concerned has fore-knowledge of the consequences flowing from his conduct in voting or abstaining from voting contrary to such a direction. [775H, 776A-B]
10.1 The purpose of interlocutory orders is to preserve in status-quo the rights of the parties, so that, the proceedings do not become infructuous by any unilateral overt acts by one side or the other during its pendency. [776G]
10.2. The interlocutory orders in the instant case were necessarily justified so that, no land-slide changes were allowed to occur rendering the proceedings ineffective and infructuous.[776H, 777A] Per VERMA, J. : 1.Under the Constitution of India which delineates the spheres of jurisdiction of the legislature and the judiciary,the power to construe the meaning of the provisions in the Constitution and the laws is entrusted to the judiciary with finality attached to the decision of this Court inter alia by Article 141 about the true meaning of any enacted provision, and Article 144 obliges all authorities in the country to act in aid of this Court. It is, therefore, not permissible in our constitutional scheme for any other authority to claim that power in exclusivity, or in supersession of this Court's verdict. Whatever be the controversy prior to this Court entertaining such a matter, it must end when the Court is seized of the matter for pronouncing its verdict and it is the constitutional 704 obligation of every person and authority to accept its binding effect when the decision is rendered by this Court.
[p. 784F-H] Cohens v. Virginia, 6 Wheat 264, 404, 5 L.Ed. 257, 291 (1821) and State of madras v. V.G. row, [1952] SCR 597, referred to.
2.1. The finality clause in Para 6(1) of the Tenth Schedule to the Constitution which says that the decision of the Chairman or as the case may be, the speaker of the House shall be final is not decisive. Such a finality clause in a statute by itself is not sufficient to exclude the jurisdiction of the High courts under Articles 226 and 227 and the Supreme Court under Article 136 of the Constitution, the finality being for the statute alone. This is apart from the decision being vulnerable on the ground of nullity.
Sub-paragraph (1)alone is, therefore, insufficient to exclude the extra-ordinary jurisdiction of the High Courts and the plenary jurisdiction of this Court. [788B-C]
2.2. The ambit of a legal fiction must be confined to the limitation implicit in the words used for creating the fiction and it cannot be given an extended meaning to include therein something in addition. In construing the fiction it is not to be extended beyond the language of the Section by which it is created and its meaning must be restricted by the plain words used. It cannot also be extended by importing another fiction. [788E, 789A]
2.3. The legal fiction in sub-paragraph (2) of para 6 of the Tenth Schedule serves a limited purpose and brings the proceedings under sub-paragraph (1) thereof within the ambit of clause (1) of Article 122 or Clause (1) of Article 212, and, therefore, there is no occasion to enlarge its scope by reading into it words which are not there and extending it also to clause (2) of these Articles. [788C, 789B] Commissioner of Income-tax v. Ajax Products Ltd., [1965] 1 SCR 700, referred to.
2.4. A matter falling within the ambit of clause (1) of either of the two Article 122 or 212 is justiciable on the ground of illegality or perversity in spite of the immunity it enjoys to a challenge on the ground of "irregularity of procedure". [788E-F] 2.5. The decision relating to disqualification of a member does not relate to regulating procedure or the conduct of business of the House 705 provided for in clause (2) of Articles 122 and 212 and taking that view would amount to extending the fiction beyond its language and importing another fiction for this purpose which is not permissible. That being so, the matter falls within the ambit of clause (1) only of Article 122 and 212 as a result of which it would be vulnerable on the ground of illegality and perversity and therefore, justiciable to that extent. [789C-D] Spl. Ref. No. 1 of 1964 (Keshav Singh's case) [1965] 1 SCR 413,
3.1. The words in Paragraph 7 of the Tenth Schedule with its non-obstante clause `notwithstanding anything in this Constitution' followed by expression `no court shall have any jurisdiction', are very wide and ordinarily mean that this provision supersedes any other provision in the Constitution, and leave no doubt that the bar of - jurisdiction of Courts is complete excluding also the jurisdiction of the supreme court and the High courts under Articles 136, 226 and 227 of the Constitution respectively.
Further, the expression `in respect of any matter connected with the disqualification of a Member of a House under this Schedule' is wide enough to include not merely the intermediate stage of the proceedings relating to disqualification but also the final order on the question of disqualification made under paragraph 6. This conclusion is reinforced by the finality clause and deeming provision in para 6 of the Tenth Schedule and by the legislative history of the absence of such a provision excluding the Court's jurisdiction in the earlier two Bills which had lapsed. [pp. 789F-G, 790C, H]
3.2. Para 7 of the Tenth Schedule is, therefore, unconstitutional and to that extent at least the Constitution does not stand amended in accordance with the Bill seeking to make the constitutional amendment. [799E]
4.1. Distinction has to be drawn between the abridgment or extinction of a right and restriction of the remedy for enforcement of the right. If there is an abridgment of extinction of the right which results in the disappearance of the cause of action which enables invoking the remedy and in the absence of which there is no occasion to make a grievance and invoke the subsisting remedy, then the change brought about is in the right and not the remedy.
On the other hand, if the right remains untouched so that a grievance based thereon can arise and, therefore, the cause of action subsists, but the remedy is curtailed or extinguished so that cause of 706 action cannot be enforced for want of that remedy, then the change made is in the remedy and not in the subsisting rights. [793A-C] Sri sankari Prasad Singh Deo v. Union of India & State of Bihar, [1952] SCR 89 and Sajjan Singh v. State of Rajasthan, [1965] 1 SCR 933, explained 4.2. The instant case in unequivocal terms, is that of destroying the remedy by enacting para 7 of the Tenth Schedule making a total exclusion of judicial review including that by the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution. But for para 7 which deals with the remedy and not the right, the jurisdiction of the Supreme Court under Article 136 and that of the High Courts under Article 226 and 227 would remain unimpaired to challenge the decision under para 6, as in the case of decisions relating to other disqualification specified in clause (1) of Articles 102 and 191, which remedy continues to subsist. [793D-F]
4.3. The extinction of the remedy alone without curtailing the right, since the question of disqualification of a member on the ground of defection under the Tenth Schedule does require adjudication on enacted principles, results in making a change in Article 136 in Chapter IV in Part V and Articles 226 and 227 in Chapter V in Part VI of the Constitution. [793F]
4.4. The Constitution (Fifty-Second Amendment) Bill, therefore, attracted the proviso to Article 368(2) requiring ratification by the specified number of State legislatures before its presentation to the President for his assent. [793G]
5.1 The proviso to Article 368(2) of the Constitution contains a constitutional limitation on the amending power; and prescribes as a part of the special procedure, prior assent of the State Legislatures before presentation of the Bill to the President for his assent in the case of the relevant Bills. This is a condition interposed by the proviso in between the passing of the Bill by the requisite majority in each House and presentation of the Bill to the President for the assent, which assent results in the Constitution automatically standing amended in accordance with the terms of the Bill. The Bills governed by the proviso, therefore, cannot be presented to the President for his assent without the prior ratification by the specified number of State legislatures. [795C-E] 707
5.2. The consequence of the Constitution standing amended in accordance with the terms of the Bill on assent by the President, which is the substantive part of Article 368, results only when the Bill has been presented to the President for his assent in conformity with the special procedure after performance of the conditions precedent, namely, passing of the Bill by each House by the requisite majority in the case of all Bills; and in the case of Bills governed by the proviso, after the Bill has been passed by the requisite majority in each House and it has also been ratified by the legislature by not less than one-half of the States. Non-compliance of the special procedure prescribed in Article 368(2) cannot bring about the result of the Constitution standing amended in accordance with the terms of the Bill. [795F-G, H,796A] Kesavananda Bharati v. State of Kerala, [1973] Supp.1 SCR, relied on.
5.3. The ordinary role of a proviso is to carve out an exception from the general rule in the main enacting part. A Bill falling within the ambit of the proviso to cl.(2) of Article 368 is carved out of the main enactment in clause (2) as an exception on account of which it cannot result in amendment of the constitution on the President's assent without prior ratification by the specified number of State legislature. [797G-H, 798A-B]
5.4. The entire Tenth Schedule is enacted in exercise of the constituent power under Article 368, not merely para 7 therein, and this has been done without following the mandatory special procedure prescribed. It is, therefore, the entire Constitution (Fifty Second) Amendment Bill and not merely para 7 of the Tenth Schedule which required prior ratification by the State of legislatures before its presentation to the President for his assent, it being a joint exercise by the parliament and the State Legislatures.
The stage of presentation of the Bill to the President for his assent not having reached, the President's assent was non est and it could not result in amendment of the Constitution in accordance with the terms of the Bill. It is not a case of severing the invalid constituent part from the remaining ordinary legislation. [799G-H, 800A; 802C]
6.1. The doctrine of severability applies in a case where an otherwise validly enacted legislation contains a provision suffering from a defect of lack of legislative competence and the invalid provision is severable leaving the remaining valid provisions a viable whole. this doctrine has no application where the legislation is not validly enacted due to non-compliance 708 of the mandatory legislative procedure such as the mandatory special procedure prescribed for exercise of the constituent power. The doctrine does not apply to a still born legislation. It is not possible to infuse life in a still born by any miracle and deft surgery even though it may be possible to continue life by removing a congenitally defective part by surgical skill. [800D-E] The Bribery Commissioner v. Pedrick Ranasinghe, [1965] AC 172, referred to.
6.2. Severance of para 7 of the Tenth Schedule could not be made for the purpose of ratification or the President's assent and, therefore, not such severance can be made even for the ensuing result. If the President's assent cannot validate para 7 in the absence of prior ratification, the same assent cannot be accepted to bring about a different result with regard to the remaining part of the Bill. [800A-B]
7. The test whether the enactment would have been made without para 7 indicates that the legislative intent was to make the enactment only with para 7 therein and not without it, otherwise the enactment did not require the discipline of Article 368and exercise of the constituent power and mode of ordinary legislation could have been resorted to in accordance with sub-clause (e) of clause (1) of Article 102 and 191, which would render the decision on the question of disqualification on the ground of defection also amenable to judicial review as in the case of decision on questions relating to other disqualification. [802F-H, 803A] R.M.D. Chamarbaughwalla v. The Union of India, [1957] SCR 930, relied on.
8.1. Democracy is a part of the basic structure of our Constitution, and rule of law; and free and fair elections are basic features of democracy, One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority.
It is only by a fair adjudication of such disputes relating to validity of elections and subsequent disqualifications of members that true reflection of the electoral mandate and governance by rule of law essential for democracy can be ensured. [803E-G] 709
8.2. In the democratic pattern adopted by our Constitution, not only the resolution of election dispute is entrusted to a judicial tribunal, but even the decision on questions as to disqualification of members under Articles 103 and 192 is contemplated by an independent authority outside the house, namely, President/Governor in accordance with the opinion of the Election commission,, all of whom are high constitutional functionaries with security of tenure, independent of the will of the House. [803G-H, 804A]
8.3. Sub-clause (e) of clause (1) in Articles 102 and 191 which provide for enactment of any law by the Parliament to prescribe any disqualification other than those prescribed in the earlier sub-clauses of clause (1), clearly indicates that all disqualifications of Members were contemplated within the scope of Articles 102 and 191. All disqualification including disqualification on the ground of defection, in our constitutional scheme, are, therefore, different species of the same genus, namely, disqualification, and the constitutional scheme does not contemplate any difference in their basic traits and treatment; and were meant to be decided by an independent authority outside the House such as the President/Governor, in accordance with the opinion of another similar independent constitutional functionary, the Election commission of India, who enjoys the security of tenure of a Supreme Court Judge with the same terms and conditions of office. [804B-E]
8.4. The Speaker's office is undoubtedly high and has considerable aura with the attribute of impartiality. This aura of the office was even greater when the Constitution was framed and yet the framed and yet the farmers of the Constitution did not choose to vest the authority of adjudicating disputes as to disqualification of Members to the Speaker; and provision was made in Article 103 and 192 for decision of disputes by the President/Governor in accordance with the opinion of the Election commission. In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such dispute with no provision for any appeal or revision against the Speaker's decision to any independent outside authority. This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution.[804-G, 805E]
8.5. The Speaker being an authority within the House and his tenure being dependent on the will of majority therein, likelihood of suspicion of 710 bias could not be ruled out. The question as to disqualification of a member has adjudicatory disposition and, therefore, requires the decision to be rendered in consonance with the scheme for adjudication of disputes Rule of law has in it firmly entrenched natural justice, of which, Rule against Bias is a necessary concomitant; and basic postulates of Rule against Bias are : Nemo judex in cause sua - `A Judge is disqualified from determining any case in which he may be,or may fairly be suspected to be, biased'; and `it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done'. [804H, 805A-B]
8.6. It is the Vice-President of India who is ex- officio Chairman of the Rajya Sabha and his position being akin to that of the President of India, is different from that of the Speaker. The observations relating to the office of the speaker do not apply to the chairman of the Rajya Sabha, that is the Vice-President of India. [805F-G] 8.7. Since the conferment of authority is on the Speaker and the provision being unworkable for the Lok sabha and the State Legislatures, cannot be sustained, even without para 7, the entire Tenth Schedule is rendered invalid in the absence of any valid authority for decision of the dispute notwithstanding the fact that this defect would not apply to the Rajya sabha alone whose Chairman is the Vice-President of India. The statutory exception of doctrine of necessity has no application since designation of authority in the Tenth Schedule is made by choice while enacting the legislation instead of adopting the other available options. [805H, 806A-B] & ORIGINAL JURISDICTION: Transfer Petition (Civil) No.40 of 1991.
(Under Article 139 A(1) of the Constitution of India).
WITH Writ Petition (Civil) No. 17 of 1991.
Soli J. Sorabjee, Vijay Hansaria and Sunil Kr. Jain for the Petitioner Ejaz Maqbool and Markand D. Adkar for the Respondents.
The Judgment of the Court was delivered by 711 (OPERATIVE CONCLUSIONS IN THE MAJORITY OPINION) [Per VENKATACHALIAH, K, JAYACHANDRA REDDY AND AGRAWAL, JJ.].
1. The Writ Petitions, Transfer Petitions, Civil Appeals, Special Leave Petitions and other connected matters raising common questions as to the constitutional validity of the constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, were heard together. Some of these matters involve investigation and determination of factual controversies and of the extent of applicability to them of the conclusions reached on the various constitutional issues. That exercise shall have to be undertaken in the individual cases separately.
The present judgment is pronounced in the Transfer Petition No. 40 of 1991 seeking the transfer of the Writ Petition, Rule No. 2421/90 on the file of the High Court of Guwahati to this Court.
2. The Transfer Petition is allowed and the aforesaid Writ Petition is withdrawn to this Court for the purpose of deciding the constitutional issues and of declaring the law on the matter.
3. For the reasons to be set out in the detailed judgment to follow, the following are the operative conclusions in the majority opinion on the various constitutional issues:
(A) That having regard to the background and evolution of the principles underlying the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the Constitution in terms and in effect bring about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India and, therefore, the amendment would require to be ratified in accordance with the proviso to sub-Article (2) of Article 368 of the Constitution of India.
(B) That there is nothing in the said proviso to Article 368 (2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the Amendment requires ratification from the rest of the provisions of such Bill 712 Which do not attract and require such ratification. Having regard to the mandatory language of Article 368 (2) that "thereupon the constitution shall stand amended" the operation of the proviso should not be extended to constitutional amendments in a Bill which can stand by themselves without such ratification.
(C) That accordingly, the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the constitution of India, to the extent of its provisions which are amenable to the legal-sovereign of the amending process of the union Parliament cannot be overborne by the proviso which cannot operate in that area.
There is no justification for the view that even the rest of the provisions of the constitution (52nd Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368 (2) was not so ratified.
(D) That Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and, therefore, is a severable part.
The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7.
(E) That the Paragraph 2 of the Tenth Schedule to the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended.
The provisions of Paragraph 2 do not violet any rights or freedom under Article 105 and 194 of the Constitution.
The provisions are salutory and are intended to strengthen the 713 fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections.
(F) The contention that the provisions of the Tenth Schedule, even with the exclusion of Paragraph 7, violate the basic structure of the Constitution in that they affect the democratic rights of elected members and, therefore, of the principles of Parliamentary democracy is unsound and is rejected.
(G) The Speakers, Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjucating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review.
However, having regard to the Constitutional Scheme in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the speakers/Chairmen. Having regard to the Constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.
(H) That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6 (1) doe
