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.

H

1

ords 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.

This Court transferred to itself the petitions pending before the High

Courts and beard ail the matters together.

The challenge was mainly on the grounds that Paragraph 7 of the

Tenth Scbedule, in terms and in effect sought to make a. change in Chapter

IV of Part V and Chapter V of Part V1 of the Constitution as it takes away

the jurisdiction

of the

Supreme Court under Article 136 and that or the

E High Courts under Articles 226 and 227 of the Constitution, and, therefore,

the Bili before presentation to the President for assent would require to

be ratified by the legislatures of not less than one·balf of the States by

resolution to that eft'ect as envis11ged by the proviso to Article 368(2); that

in the absence of such a ratification the whole Amendment Bili was an

F 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

G 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

H adjudicatory machinery and Is, therefore, violative of the basic feature of

KIHOTO HOLLOHAN v. ZACHILLHU 689

Ille Coutltutloll. It was also contended that the expression "any direction" A

la ............. l(l)(b) of die Schedule might be unduly restrictive of the

Ill 1d11M of 1peedl, and the right or dissent which may itself be obnoxious

to ud vlllliltlYe ill constltutlonal Ideals and values.

The respondent& contended that the Tenth Schedule created a non-

B

Justldallle coutltutlonal area dealing with certain complex political issues

nlclt liave no strk:t acUudlcatory disposition and the exclusion of this area

. Is constltutl111111lly preserved by Imparting a finality to the decision of the

;.(

Speakds/Cbalnnen by deeming whole proceedings as .those within Pariia-

-.tJH1111HS or lqlslature eavl1111ged in Articles 122 and 212 and further

. exchi111111· tlie CO.rt's Jurisdiction under Paragraph 7; that no question of c

1111ster of Jndldal review would at all arise inasmuch as the Speaker/Chair-

· -• exerdsl111 power under Paragraph 6(1) of the Tenth Schedule func-

tlon ilot as a statutory TrlbullBI but as a part of State's Legislative

. de,.._t; and that having regard to the pol!tlcal issues, the subject

-tter Is Itself not a-nable to judicial power but pertains to the Con- D

sU.hltlon of tlle House and the Legislature is entitled to deal with it

-,

· e11elnlllvely.

The Court on 12.11.1991 gave its operative conclusions, indicating

reas8'1s to ro11-and by Ill judgment dated 18.2.1992 gave the reasons.

E

Oa die questions whether: (1) the Tenth Schedule to the Constitution

lasel'led lly die Coostltutlon (Fifty-Second Amendment) Act, 1985, seeking

to peulise and disqualify elected representatives Is violative or the fun-

). -

dameatal principles of Parliamentary democracy and is, therefor, destruc-

·

tlve of the basic feature of the Constitution; (2) Paragraph 7 of the Tenth F

Schedule la terms and In elrect brings about a change in operation and

elfecl of Artlcles 136, 226 and 227 or the Constitution and, therefore, the

llU latrodnclng the amend!"ent would require ratification as envisaged by

tlle 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

G

to bring about a valid amendment or would Paragraph 7 alone be in-

tlllldated with the application or the doctrine of severability; ( 4) the Tenth

Schedule created a new and non-justiciable constitutional area not

•-Ille to cnrlal adjudicative proeess; and whether Paragraph 6(1) in

...,

l•partl111 a constitutional 'finality' to the decisions of Chairmen/Speakers,

ud paragrapll 6(2) In the event of attracting immunity under Articles 122 H

690 SUPREME COURT REPORTS [1992] 1 S.C.R.

A and 212, bar judicial review; (5) the Chairmen/Speakers satisfy the re­

quirements 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.

B 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

C 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.

D

[pp. 711F-G; 714G] ·

(ii) The finality clause in para 6(1) of the Tenth Schedule to the f--

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.

E ( 713E-F; 7888-C]

F

(iii) The legal fiction in para 6(2) of the Tenth Schedule brings a

proceeding under para 6(1) within the 11mbit 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-~"]

Per Majority (M.N. Venkatac/1alial1. K. Jayachandra Redd)' & S.C.

Agrawal, JI.)

(i) Paragraph 7 of the Tenth Schedule contains a provision which is

G independent of, and stands apart from, the main provisions of the Tenth

Schedule which are intended to provide a remedy for the evil of unprin­

cipled and unethical political defection and, therefore, is a severable part.

The remaining provisions of the Tenth Schedule can and do stand inde­

pendently of Paragraph 7 and are complete in themselves workable and

H are not truncated by the excision of Paragraph 7. [p. 712E-F)

-~

/.

KIHOTO HOLLOHAN v. ZACHILLHU 691

(ii) There is nothing in the proviso to Article 368(2) which detracts A

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

ratifica­

tion. 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; 712A-B]

(iii)

The Constitution (Fifty-Second Amendment) Act, 1985 in so far

_.I as it seeks to introduce the Tenth Schedule in the Constitution of India,

B

to the extent of its provision which are amenable to the legal-sovereign of C

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) Parapraph 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 D

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

E

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 di< qualifica-

tions, seek to create a non-justiciable constitutional· area. [p.

769A-B] F

(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 de.ract from or

·

abrogate judicial review under Articles 136, 226 and 227 of the Constitu-

G

tion in so far as infirmities based on violations of constitutional mandates, H

692 SUPREME COURT REPORTS [ 1992) 1 S.C.R. ·

A ma/a fides, non-compliance with Rules or Natural Justice and penwslty.

are concerned. [713E-F]

(viii) The deeming provision in Paragraph 6(2) of ll1e Tenth

Schedule attracts an immunity analogous lo that la Artlde lll(l) and

212(1) of the Constitution to protect the validity or proceedings from mere

B irregnlarities _of procedure and confines lhe scope or the fidlon -llhiW·

(7l3G·H, 114AJ

Sp/. ~ef No.I of 1964 (Kesliav Singh's case) (1965) I SCR 413,

referred lo.

C (ix) Having regard to the Conslitutlona.1 scheme In the Tenlll

Schedule, judicial review should not cover aay stage prior to the ........

of a decision by lhe Speakers/Chairmen; and ao quia 1bi1e/ actloas are

permissible; lhe only exception for any interlocutory lnlerf'erence being

cases or interlocutory disqualifications or •••pensions which may laaw

D grave, immediate and irreversible repercussloas and conseqaence.

(7130-E)

(x) The Speakers/Chlirmen hold a pivotal position la the scheme or ...-·-

Parliamentary democracy and are guardians or the rights and privileges

of the House. They are expected lo and do take far reaching dedslons la

E the Parliamentary democracy. Vestiture or power to acUudicate qanlloas

under the Tenth Schedule i'! them should not be considered exceptionable.

(7148-CJ

Per La/it Mohan Sliaima and J.S. Venna, JJ. -co/llra

F (i) Without ratification, as required by the mandatory special --{

G

provision prescribed in the proviso to Artlde 368(2) or the Coblihllioa /-

the stage of presenting the Constitution (Fifty-Second) Amendment Bill

for assent of the !'.resident did not reach and, therefore, the s.o-called

assent of the President was non est. (71511-C)

(ii) In the absence or ratification it is not merelyParagraph 7 but

the entire Constitution (Fifty-Second Amendment) Act, 1985 which Is

rendered unconstitutional, since lhe constitutional ponr was not exer•

cised as prescribed in Article 368, and, therefore, the Constitution did nol .

stand amended in accordance with the terms or the Biii provldlag for

H amendment. [715D·E]

KIHOTO HOLLOHAN v. ZACHILLHU 693

(Iii) Doctrine of severability cannot be applied to a Bill making a A

.oonstitutional amendment where any part thereof attracts the proviso lo

dause (2) of Article 368. [715FJ

(Iv) Doctrine of severabillty is not applicable lo 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 B

proviso the Article 368(2). [715GJ

(v)

The Speaker's decision disqualifying a Meniber of a House .under

paragraph 6(1) or the

Tenth Schedule is not immune from judicial

scrutiny.

It ls a nullity liable to

be so declared and ignored. [782GJ

. . .

(vi) ·Ali· Independent acljudil!atory machinery for resolving disputes

relating

lo the

competence or Members of the· House is envisaged as an

attribute. of the democratic system which is a basic feature of our Constilu·

lion. The tenure of the Speak.er, who Is the authority iu the Tenth Schedule

c

to decide this dispute, Is dependent on the continuous support or the D

majority In the House and, therefore, he does not satisfy the requirement

or such an independent adjudicatory authority; and his choice as the sole

arbiter In the matter violates an essential attribute of the basic feature.

(7168-CJ

(vii) Consequently,

the entire Constitution (Fifty-Second

Amend· E

ment) Act, 1985 which inserted the Tenth Schedule together with clause

(2) in Arlldes 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.

7160]

Per Venkatachaliah : I. 1.1. A constitutional document outlines only

broad and general principles meant. to endure and be capable or flexible

llppllcatioo to changing circumstances-a distinction which differentiates

F

a sta~ute from a Charter under which all statutes are made. (726G·H] G

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

~mendment H

694 SUPREME COURT REPORTS [1992] 1 S.C.R.

A are important criteria. [727B]

U.S. Supreme Court in Mm.well 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 )I

B 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 d'ocument". In expound­

ing the process of the fundamental law the Constitution must be treated

c

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

D 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 disen-.,, -

tangle" 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

E legislative element in all constitutional adjudications. [730D-F]

F

"77ieol)

1 of Tons'! A111erica11 Law Revie111 7 [1873); Justice Oliver Wen­

del Holmes-Free Speech and the Living Co11stitutio11 by H.L. Pohlman 1991-

Edn. p.223, referred to.

Amalgamated Society of Railway Sen•ants v. Osbome, 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

G 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 sur­

vival.

Paragraph 2(1)(b) of the Tenth Schedule gives effect to this p~in·

ciple and sentiment by imposing a disqu_alilicatio.i on a Member who votes

H or abstains from voting contrary to "al'l.y direction~" issued by the political

KIHOTO HOLLORAN v. ZACHILLHU 695

_,..

party. The provision, however, recognising two exceptions: one when the A

Mem~r 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

B

the direction of the party to which he belongs. [734D-E;

7358-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 statntory variant of its moral c

principle and justification underlying the power of recall. What might jns-

tify a provision for recali would justify a provision for disqualification for

defec.tion. Unprincipled defection

is a political

and social evil. It is perceived

as snch

by the

legislature.· The anti-defection law seeks to recognise the

practical need to place the proprieties of political and personal conduct-

D

whose awkward erosion and grotesque manifestations have been the bane of

the times -above certain theoretical assumptions which in reality have fat-

"' ten into a morass of personal and political degradation. This legislativ"

wisdom and perception should be deferred to. The choices in constitutional

adjudications quite clearly indicate the need.for such deference. [739D-G]

E

'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

tile rights or im-

~-

munities under Article 105(2) of the Constitution. The freedom of speech

F

A,

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 SCR318, referred to.

G

"

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 SCC 85, referred to. H

696 SUPREME COURT REPORTS [1992] 1 S.C.R.

A 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]

B 2.3. As regards Paragraph 7 to the Tenth Schednle, both on its lan-

guage

and having regard to the legislative evolution of the provision, the

legislative intent is plain and manifest. The words

"no Court 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 ~

C reinforced by the legislative history of the anti-defection law. The Constitu­

tion (Fifty-Second Amendment) Bill for the first time envisaged the inves­

titute Qf 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

D

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, 7438]

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

E 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 Constitu­

tion 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]

F

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

matters falling under the Tenth Schedule. There, is a change in the effect

G 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 ratifica­

tion was necessary. [745F]

Sri Sankari Prasad Singh Dea v. Union of India & State of Bihar,

[1952] SCR 89 and Sajjan Singh v. State of Rajasthan, [1965] l SCR 933,

H referred to.

-

•

KIHOTO HOLLORAN v. ZACHILLHU 697

3.1. The criterion for determining the constitutional validity of a law A

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 oflaws 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 he separated

from the invalid part.

[746C; 747D)

Cooley's Constitutional Limitations; 8th Edn. Vol. I, p.

359-360,

B

referred to. C

R.M.D. Chamarbaughwal/a v. Union of India, [1957) SCR 930; Shri

Kesavananda Bharti Sripadaga/avam v. State of Kera/a, [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. D

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 E

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 F

the Constitution ~nd any amendment made in disregard of these limita·

tions would go beyond the amending power and would invalidate its

exercise. [746C-E,

747C)

3.3. Although there is no specific enumerated substantive limitation G

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 H

698 SUPREME COURT REPORTS (1992) 1 S.C.R.

·""'

A 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 Muni-

B

cipality, (1944) 71 I.A. 113 and Commissioner of Income Tax, Mysore v.

Indo-Mercantile BankLtd., [1959) Supp. 2 SCR 256, referred tQ.

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)

c

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

D

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 whieh do not .

fall within its ambit. [750G-H)

3. 7. A composite amendment which makes alterations in the First

E and Fourth Schedules as well as in other proVisions of th~ Constitution

requiring special majority under Article 368(2), ~ven 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]

F

Bribery Commissioner v. Pedrick Ranasinghe, 196? A.C. 172, referred to.

...

3.8. There is really no difference in principle between the condition

,__

requiring passing of the Bill by a spe~ial majority before its presentation

to the President for assent contained in Article 368(2) ;md the condition

. for ratification of the amendment

by the legislatures of not less than

G

one-half of the

States before the Bill is presented to the President for

assent contained in the proviso.

[753D-EJ

3.9. The principle of severability can be equally applied to a com-

posite amendment

which contains amendments

in-provisions which do not

require ratification

by

States as well as amendment in provisions which ..

H require such ratification and by application of the doctrine of severability,

KIHOTO HQLLOHAN v. ZACHILLHU 699

the amendment can be upheld in respect of the amendments which do not A

- ·require ratification and which are within th~ 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 t.he law

If the .severed part was B

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 C

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 Schedµle if it had known that

Paragraph 7

was not valid. Nor can it be said that the rest of the provisions D

of the Tenth Schedule cannot stand on their own even if Paragraph 7 is

found to

be unconstitutional. The provisions of Paragraph 7 is there(ore,

severable from the rest of the

provisfons. [pp. 754A-C]

4.1. Democracy is a basic feature of the Constitution. Wheth.er any E

.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 inier-

vals is essential

to the democratic system envisaged in the Constitution ..

So is the need to protect and sustain the purity of the electoral process. F

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 G

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

com­

plexion. [pp. 759G, 763C]

. '

Indira Nehru Gandhi v. Raj tyarain, (1976] 2 SCR 347; Special Refer-H

700 SUPREME COURT RJ¥>0RTS (1992] l S.C.R.

A ence No. 1 of 1964, (1965] 1 SCR 413 & Express Newspaper Ltd. v. Union

of India, AIR 1958 SC 578, referred to. -

Australian Boot Trade Ef1JPloyees Federation v. Whybrow & Co., 1910

10 CLR 2Ji6, referred to.

B 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

C vinculum juris, which is disturbed. Where there is a lls 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

D Tenth Schedule is a Tribunal. [763G-H, 7'4E-F, 7668]

E

F

Associated Cement Companies Ltd. v. P.N.

Shanna and Anr., [1965]

2 SCR 366 and Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjlmnwala

& Ors., [1962] 2 SCR 339, referred to.

5.1 A 6nality clause is not a legislative magical incantation which

has the effect of telling off Judicial Review. Statutory 6nality of a decision

presupposes and

is subject to its consonance with the statute. The

prin­

ciple 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

lo

take such an action. It will also be ultra vires the powers conferred on the

authority if it

is vitiated by ma/a fides or is colourable exercise of power

G based on extraneous and irrelevant

col!siderations. [pp. 755D, 765D-E]

'Administrative Law' 6th Edn. at p. 720 & Constitutional Fundamen­

tals, the Hamlyn Lectures, 1989 Edn., p. 88, referred to.

5.2. The finality clause with the word "6nal" in paragraph 6(1) of

H the Tenth Schedule does not completely exclude the jurisdiction of the --

KIHOTO HOLLOHAN i·. ZACHILLHU 701

Courts under Articles 136, 226 and 227 of the Constitution. But it does A

- have the effect of limiting the scope of the jurisdiction. If the intendment

is to exclude th"e jurisdiction of the superior Courts, the language would

quite obviously have been different. [758H,

759A, 765C, 758A]

..,.

~

,,-...,

Bnmdaban Nuyak v. Election Commission of India & Anr., [1965] 3

SCR 53; Union of India v. Jyoti Prakash Mitter, [1971) 3 SCR 483; Durga. B

Shankar Mehra v. Raghuraj Singh, AIR 1954 SC 520 and Union of India &

Anr. v. Tulsiram Patel & Ors., [1985) Supp. 2 SCR 131, referred to.

5.3. An ?uster clause confines judicial review in respect of actions

falling outside the jurisdiction of the authority taking such action but

C

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 Compensation Commission, [1969) 2 AC 147;

S.E. Asia Fire Bricks v. Non-Metallic Products, 1981A.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 as 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., inlir-

mities based on violation of constitutional mandate,

ma/a /ides, non-com-

pliance 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 .proceed-

ings. Exceptions

will, however, have to be made in respect of cases where

disqualification of suspension is imposed during the pendency of the

D

E

F

G

H

702 SUPREME COURT REPORTS [1992] 1 S.C.R.

A 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 Raja.ithan

v. Union of India, [1978) 1 SCR 1; Union of India v. Jyoti Prakash Mitter,

(supra) and Union of India & Anr. v. Tu/siram Patel & Ors., [1985] Supp.

B 2 SCR 131, referred to.

8. The ~ffice of the Speaker is held in the highest respect and esteem in

Parliamentary traditions. The evolution of the institution

of Parlimentary

democracy has as its pivot the institution

of the

Speaker. He is said to be the

C 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

Olnce of the speaker, merely because some of the

D 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] Y

G. V. Mavalankar ; The Office of Speaker, Journal. of f'.arliamentary

E 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 SL. Shakdher in 'Practice ana Procedure of Parliament' 4th

Edition, referred to.

9.1. The words

"any direction" occurring in Paragraph 2(1)(b) of the

F 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 th~ 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

har-

G monious 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

& Hal-yana 263, referred to.

H 9.2. While construing Paragraph 2(1).(b) it cannot be ignored that

KIHOTO HOLLOHAN v. ZACHILLHU 703

under the Constitution members of Parliament as well as of the State A . .

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 Hause. The disqualification Im-.

posed by Paragraph 2(l)(b) must be so construed as not to unduly Impinge

on the said freedom of speech of a member; This would be possi!>le if B

Paragrapli 2(l)(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

111ischief 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., termina-C

tion of the membership of a House, it would be appropriate that the direc­

tion or whip which results in such disqualification under Paragraph 2(l)(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

incur­

ring the disqualification under Paragraph 2(l)(b), so that the member con­

cernecLhas fore-knowledge of the consequences flowing from his conduct in D

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 lnfruc­

tuous by any unilateral overt acts by one side or the other during its E

pendency. [776G]

10.2. The interlocutory orders in th~ instant case were necessarily

justified so that, no land-slide changes were allowed to occur rendering the

proceedings ineffective and infructuous. [776H,

777 A]

Per VERMA, J. : 1. Under the Constitution of India which deli.neates ·

the spheres of jurisdiction o,f the legislature and the judiciary, the power

to construe the meaning of the proYisions in the Constitution and the laws

F

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 G

aid of this Court. It is, therefore, not permissible in ou~ 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 H

704 SUPREME COURT REPORTS [1992] 1 S C.R.

A obligation of every person and authority to accept its binding effto ,.hen

the decision is rendered by this Court. [p. 784F ·HJ

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.

B 2.1. The finality clause in Para 6(1) of the Tenth Schedule to the

Constitution which says that the decision of the Chaivman 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 jurisdic·

lion of the High

Courts under Articles 226 and 227 and the Supreme Court

C 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·CJ

D 2.2. The ambit of a legal fiction must be confined to the limitation

implici.t in the words used for creating the fiction and it cannot be given an

extended meaning to include therein something in addition. In construing y·

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]

E

F

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 (l) of Article 122 or

Clause (1) of Article 212, and, therefore, there is no occasion to enlarge its

scope

by reading into it

word~ 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] l SCR 700,

referred to.

G 2.4. A matter falling within the ambit of clause (l) of either of the

two Articles 122 or 212 is justiciable on the ground of illegality or perver·

sity in spite of the immunily it enjoys to a challenge on the ground of

"irregularily of procedure". [788E-F]

2.5. The decision relating to disqualification of a member does not •

H relate to regulating procedure or the conduct of business of the House

~

,_

r:

.....

•

KIHOTO HOLLOHAN >'. ZACHILLHU 705

provided for in clause (2) of Articles 122 and 212 and taking that view . A

would amount to extending the fi~tion beyond its l1111guage 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 Articles 122 and 212

as a result of

which it would be vulnerable on the ground of i'llegality and

' .

perversity and,therefore, justiciable to that extent. [789C-DJ

B

Sp/. Ref No. I 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 clau'se 'notwithstanding anything in this Constitution' fol·

lowed by expression 'no court shall have any jurisdiction', are very wide

c

and ordinarily mean that this provision supersedes any other provision

in the Consti\ution, 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 D undoc this Schedule' is wide enough to include not merely the inter·

mediate stag~ of the proceedings relating to disqualification but also

the final

order on the question of disqualification made under para-

graph

6. This conclusion is reinforced by the finality clause and

deem·

ing provision in para 6 of the Tenth Schedule and by the legislative

E

history·of the absence of such a provision excluding the Court's juris·

diction in th~ earlier two Bills which had lapsed. [pp. 789F-G, 790C, HJ

3.2. Para 7 of the Tenth Schedule is, therefore, unconstitutional and

to that extent

at least the Constitution does not stand amended in accord-

ance with the

Bill seeking to make the constitutional amendment. F

[799E]

4.1. Distinction has to be drawn between the abridgement or

extinc·

tion of a right and restriction of the remedy for enforcement of the right.

If there is an aliridgement of extinction of the right which results in the

G

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 the cause of H

706 SUPREME COURT REPORTS [i992J 1 S.C.R.

A action cannot be enforced for ')'llnt of that remedy, then the change made

is in the re~edy and not in tljt subsisting rights. [793A·CJ

Sri Sankari Prasad Sinf'i Deo v. Union of India & State of Bihar, [1952]

SCR89 and Sajjan Singh v:State of Rajasthan, [1965] 1 SCR 933, explained.

B 4.2. The instant case, in unequitocal 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 22.6 and 227 of the Constituti6n. But

for

para 7 which deals with the remedy and not the right, the jurisdiction

C of the Supreme

Court under Articlo 136 and that ofthe·High Courts under

Articles 226

and 227 would remain unimpaired to challenge the decision

under para 6, as in the case of decisions relating to other disqualifications

specified

in clause (1) of Articles

102 and 191, which remedy continues to

subsist. [793D-FJ

D 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.·

E [793FJ

F

4.4. The Constitution (Fifty-Second Amendment) Bill, thrµfore, at·

tracted 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

G passing of the Bill by the requisite majority in each House and

presenta­

tion 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

4

presented to the President for his assent without the prior ratification by •

H the specified number of State Legislatures. [795C-E]

KIHOTO HOLLORAN v. ZACHILLHl.J 707

5.2. The conseqnence of the Constitntion standing amended in ac· . A

cordance with the terms of the Bill on assent by the President, which is the

snbstantive

part of Article 368, results only when the Bill has been

presented to the President for his assent in

conforniity 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, 796AJ

Kesavananda Bharati v. Sfate of Kera/a, [1973] Supp. 1 SCR, relied on.

5.3. The ordinary role of a proviso is to carve out

an exception from

the general

mle in the main enacting part. A Bill falling

within the ambit

B

c

of the proviso to cl.(2) of Article 368 is carved out of the main enactment D

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 COD• E

stituent 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

an·d the State Legisla·. F

tores. 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

ame;.dment of the Constitntion 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 severaiile leaving

--: , the remaining valid provisions a viable whole. This doctrine has no ap·

plication where the legislation is not validly enacted due to non-compliance

G

H'

708 3UPREME COURT REPORTS (1992) 1 S.C.R.

A of the mandatory legislative procedure sach 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

llOSSible

to continue life by removing a congenitally defective part by surgical skill.

B [SOOD-El

The Bribery Commissioner v. Pedrick 1?.anasinghe, (1965] AC 172,

referred to.

6.2. Severance of para 7 of the Tenth Schedule could not

be made for

C the

pufpose of ratification or the Pre,ident's assent and, therefore, not

sue.~ severance can be made even for the ensuing result. If the President's

assent cannot validate

para 7 in the

abscince of prior ratification; the same

assent cannot

be accepted to bring

aboot a different result with regard to

the remaining

part of the Bill. [800A-Bj

D

'

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

368 and exercise of the constituent power

and mode of ordinary legislation could have been resorted to in accordance

E with sub-clause (e) of clause (1) of Articles

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 disqualifications.

[802F-H, 803A]

F

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

G of election disputes as also adjudication of disputes relating to subsequent

disqualifications

by an independent authority. It is only by a fair

adjudica­

tion 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

democ~acy can be ensured.

H [803E-GJ -

KIHOTO HOLLOHAN v. ZACHILLHU 709

8.2. In the democratic pattern adopted by our Constitution, not obly A

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 102and191 which provide

for enactment of any

law by the Parliament to prescribe any

disqualifica·

tion 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,

B

c

are, therefore, different species of the same genus, namely,

disqualifica·

lion, and the constitutional scheme does not contemplate any difference in D

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 constitu·

tfonal 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.

[8048-E]

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 framers of the Constitution did not choose to vest the authority of adjudicating disputes F

as to disqualification of Members to the Speaker; and provision was made

in Articles 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. [804F-G, 80SE]

G

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 H

710 SUPREME COURT REPORTS [1992] 1 S.C.R.

A 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

B

against Bias are : Nemo judex in causa 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 s~ould not only

"

he done but should manifestly and undoubtedly be seen to be done'.

[804H, 805A·B] ,:...___

c 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 ff the President of

India,

is different from that of the Speaker. The

observations relating to

tile office of the Speaker do not apply lo the Chairman of the Rajya Sabha,

that is the Vice-President of India." [805F-G]

D

8. 7. Since the conferinent of authority Is on the Speaker and the

provision being u~workabl• for the Lok Sabha and the Staie 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 I-

dispute notwithstanding the fact that this defect would not apply to the Rajya

E 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

ch.lice while enacting the legisla·

)!!

lion instead of adopting the other available options. [SOSH, 806A-B]

F

ORIGINAL JURISDICTION: Transfer Petition (Civil) No. 40 of 1991.

1

• •

(Under Article 139 A(l) of the Constitution of India). ,.

WITH

G

Writ Petition (Civil) No. 17 of 1991.

Soli J. Sorabjee, Vijay Hansaria and S uni! Kr.Jain for the Petitioner

Ejaz Maqbool and Markand D. Adkar for the Respondents.

r-

H The Judgment of the Court was delivered by

•

-

KIHOTO HOLLOHAN v. ZACHILLHU 711

(OPERATIVE CONCLUSIONS IN THE MAJORITY OPINION) A

[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 B

to the constitutional validity of the Constitu.tion (52nd Amendment) Act,

1985, in so far as it see.ks to introduce the Tenth Schedule in the Constitu-

tion. of India, were heard together. Some of these matters involve investiga-

tion

and determination of factual controversies and of the extent of

applicability

to them of the conclusions reached on the various constitu- C

tional 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. D

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, E

the follbwing 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

F

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

amend­

ment would require to be ratified in. accordance with the pr~viso G

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 ofsuch Bill H

712

A

B

c

D

E

F

G

H

SUPREME COURT REPORTS (1992] l S.C.R.

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 opera­

tion

of the proviso should not be extended to constitutional

amendment'

in a Bill which

cm stand by themselves without

such ratification.

(C) That, accordingly, the Ccmstitution (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

arc amenabk to the legal-sovc reign 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 \vhich is independent of, and stands apart from, the

main provisions of the TenLh 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 arc not truncated hy the excision of Paragraph 7.

(E) That the Paragraph 2 of the Tenth Schedule to the Con­

stitution

is valid. Its provisions do not suffer from the vice of

suhvcrting democratic rights of

c lcctcd Members of Parliament

and the Legislatures of the States. It does not violate their

freedom of speech. freedom of vote and conscience as con­

tended.

The provisions or Paragraph 2 do not violate any rights or

freedom under Articles 105 and 194 'of the Constitution.

Th~ proYisions are salutory and are intended to strengthen the

. -

~ -'

-­' -

...

I '

..

KIHOTO HOLi.OHAN v. ZACHILLHU 713

fabric of Indian parliamentary democracy by curbing unprin­

cipled and unethical political defections.

\F) The contention that the provisions of the Tenth Schedule,

even with the exclusion

of Paragraph 7, violate the basic

struc­

ture of the Constitution in that they affect the democratic rights

of elected members and. therefore, of the principles of Par­

liamentary democracy is unsound and is rejected.

A

B

(G) The Speakers, Chairmen while exercising powers and dis­

charging functions under the Tenth Schedule act as Tribunal

adjucating rights and obligations under the Tenth Schedule and

C

their decisions in that capacity are amenable to judicial review.

Ho\'iever, 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 intcndment and the status of the D

repository of the a<ljudicatory power, no quia tinret actions are

permissible, the only exception for any interlocutory inter­

ference being cases of interlocutory disqualifications or suspen­

sions

which may have

grave, immediate and irreversible

repurcussions

and consequence. E

(H) That Paragraph 6

(I) of the Tenth Schedule, to the extent

it seeks to impart finality to the decision of the Speakers/Chair-

men is valid. But the concept of statutory finality embodied in

Paragraph 6 (1) does not detract from or abrogate judicial

review under Articles

136, 226 and 227 of the Constitution in F

so far as infirmities based on violations of constitutional man­

dates, ma/a

[Ides, non-compliance with Rules of Natural Justice

and perversity, are conaerned.

I) That the deeming provision in Paragraph 6 (2) of the Tenth G

Schedule attracts an immunity analogous to that in Articles 122

(1) and 212 (1) of the Constitution as understood and explained

in Keshav Sing/J's Case (Sp!. Ref., Nt>. I, 11965! 1 SCR 413) to

protect the validity of proceedings from n1erc irr~gularitics of

procedure. The deeming provision, having regard 'to the words

"be deemed to be proceedings in Parliament" or "proceedings H

714

A

B

c

D

SUPREME COURT REPORTS [1992) 1 S.C.R.

in the Legislature of a State" confines the scope of the fiction

accordingly.

(J) That contention that the invesiiture of adjudicatory func­

tions in the Speakers/Chairmen would by itself vitiate the

provision on the ground of likelihood of political

bias is

un­

sound and is rejected. 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 function­

ing of Parliamentary democracy. Vestiture of power to adjudi­

cate questions under the Tenth Schedule in such a con­

stitutional functionaries should not be considered excep.­

tionable.

(K) In the view we take of the validity of Paragraph 7 it is

unnecessary to pronounce on the contention that judicial review

is a basic structure of the Constitution and Paragraph 7 of the

Tenth Schedule violates such basic structure.

ii. The factual controversies raised in the Writ Petition will, however,

have to be decided by the High Court applying the principles declared and

E laid

down by this judgment. The Writ

Petition is, accordingly, remitted to

the High Court

for such disposal in accordance with law.

·

F

(Operative conclusions in the minority opinion)

[Per SHARMA AND VERMA, JJ.]

For the reasons to be given in our detailed judgment to follow, our

operative conclusions

in the minority opinion on the various constitutional

issues are

as follows:

1.

Para 7 of the Tenth Schedule, in clear terms and in effect excludes

G the jurisdiction

of all courts, including the Supreme Court under Article

136 and the High Courts under Articles 226 and 227 to entertain any

challenge to the decision under para 6 on any ground even of illegality or

perversity,

not only at an interim stage but also after the final decision on

the question of disqualification on the ground of defection.

H 2.

Para 7 of the Tenth Schedule, therefore, in terms and in effect,

KIHOTO HOLLOHAN v. ZACHILLHU 715

makes a change in Articl~ 136 in Chapter IV of Part V; and Articles 226 A

and 227 in Chapter V of Part VI of the Constitution, attracting the. proviso .

to clause (2) of Article

368.

3. In view of para 7 in the Bill resulting in the Constitution (Fifty­

Second Amendment) Act,

1985 it was required to be ratified by the

Legislature of not less than one-half of the

States as a condition precedent

before the Bill could be presented to the President for assent,

in accord­

ance with the mandatory special procedure prescribed in the

Proviso to

clause (2) of Article

368 for exercise of the constituent power. Without

ratification

by the specified number of

State Legislatures, the stage for

presenting the Bill for assent of the President did·not reach and, therefore,

the so-called assent of the President

was non est and did not result in the

Constitution standing amended

in

~ccordance with the terms of the Bill.

B

c

4. In the absence of ratification by the specified number of State

Legislatures before presentation of the Bill to the President for his assent, D

as required by the Proviso to clause (2) of Article 368, it is not merely para

7 but, the entire Constitution (Fifty-Second Amendment) Act,

1985 which

is rendered unconstitutional, since the constituent 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 prmiding for the amend-

ment.

5. Doctrine of Seven1bility cannot be applied to a Bill making a

constitutional amendment where any part thereof attracts the Proviso to

clause (2) of Article 368.

6. Doctrine of Severability is not applicable lo permit striking down

para 7 alone

saving the remaining provisions of the Bill making the Con­

stitutional Amendment on the ground that para 7 alone attracts the proviso

to clause (2) of Article

368.

E

F

7. Even otherwise, having regard to the prov1s10ns of the Tenth G

Schedule of the Constitution inserted by the Constitution (Fifty-Second

Amendment) Act,

1985, the Doctrine of Severability does not apply to it.

.~ 8. Democracy is a part of the basic structure of the Constitution and

free and fafr elections with provision for resolution of disputes relating to H

716 SUPREME COURT REPORTS [1992J 1 S.C.R.

A the same as also for adjudication of those relating to subsequent dis­

qualification by an independent body outside the House are essential

featurc·s of the democratic system in our Constitution. Accordingly, an

independent adjudicatory machinery for resolving disputes relating to the

competence of Members of the House

is envisaged as an attribute of this

B basic feature. The tenure

M 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, therfore, he (the Speaker) 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.

c

D

9. Consequently, the entire Constitution (Fifty-Second Amendment)

Act,

1985 which inserted the Tenth

Schedule together \vith clause (2) in

Articles 102 and 191, must be declared unconstitutional or an abortive

atlempt to so amend the Constitutio!'·

10. It follows that all decisions rendered by the several Speakers

under the Tenth Schedule must also be declared nullity and liable to be

ignored.

11.

On the above conclusions, it does not appear necessary or ap­

E propriate to decide the. remaining questions urged.

F

ORDER

The Transfer Petition is allowed and the Writ Petition, Rule No. 2421

of 1990 on the file of the High Court of Guwahati is withdrawn to this

Court for the purpose of deciding the constitutional issues and of declaring

the la\v on the matter.

In accordance \vith the majority opinion. the factual controversies

raised in the Writ Petition will, however, have to he decided by the High

G Court Jpplving the principles declared and laid down by the majority. The

Writ Petition is, accordingly remitted to the High Court for such disposal

in accorUanc~ \Vith la\V.

VENKATACHALIAH, J. In these pctiti,1ns the rnnstitutional validity

of the Tenth Schedule of the CPnstitution introduced hy the Constitution

H (Fifty-Second Amendment) Act. <)85, is ""aikJ. These two cases were

-

/"·~

KJHOTO HOLLOHAN ,._ ZACHILLHU [VENKATACHALIAH, J.] 717

amongst a batch of Writ Petitions, Transfer Petitions, Civil Appeals, Spe-A

cial Leave Petitions and other similar and connected matters raising com­

mon questions which were all heard together. On 12.11.1991 we made an

order pronouncing our findings and conclusions upholding the constitu­

tional validity of the amendment and of the provisions of the Tenth

Schedule, except for Paragraph 7 which

was declared invalid for want of B

ratification in terms of and as required by the proviso to Article 368 (2) of

the Constitution. In the order dated

12.11.1991 our conclusions were set

out and

we indicated that the reasons for the conclusions would follow

later. The reasons for the conclusions are now set out.

2. This order is made in Transfer Petition No.

40 of 1991 and in Writ C

Petition No. 17 of 1991. We have not gone into the factual controversies

raised in the Writ-Petition before the Guwahati High Court

in Rule No.

2421 of

1990 from which Transfer Petition No. 40 of 1991 arises. Indeed.

in the order of 12th November, 1991 itself the said Writ Petition was

remitted to the High Court for its disposal in accordance with. law. D

3. Shri F.S. Nariman, Shri Shanti Bhushan, Shri M.C. Bhandare, Shri

Kapil Sibal, Shri Sharma and Shri Bhim Singh, learned counsel addressed

arguments

in support of the petitions. Learned Attorney-General,

Shri Soli

J. Sorabjee, Shri R.K:Garg and Shri Santhosh Hegde sought to support

the constitutional validity of the amendment. Shri Ram Jethmalani has

attacked

the validity of the amendment for the same reasons as put forward

by

Shri Sharma.

4. Before we proceed to record our reasons for the conclusions

reached

in our order dated 12th November, 1991, on the contentions raised

and argued,

it is necessary to have a brief look at the provisions of the

Tenth Schedule. The Statement of Objects and Reasons appended to the

Bill which

was adopted as the Constitution (Fifty-Second Amendment)

Act,

1985 says;

E

F

"The evil of political defections has been a matter of national G

concern. If it is not combated, it is likely to undermine the very

foundations of our democracy and the principles which sustain

it. With this object, an assurance was given in the Address by

the President to Parliament that the Government intended to

introduce in the current session of

Parliament an anti~defection H

A

B

c

D

E

F

G

H

718

SUPREME COURT REPORTS (1992] 1 S.C.R.

Bill. ThiS Bill is meant for outlawing defection and fulfilling the

above assurance."

On December 8, 1967, the Lok Sabha had passed an unanimous

Resolution

in terms following:

".a high-level Committee consisting of representatives of politi­

cal parties and constitutional experts be set up immediately by

Government to consider the problem of legislators changing

their allegiance from one party to another and their frequent

crossing of the floor

in all its aspects and make

recommenda­

tions in this regard."

The said Committee known as the "Committee on Defections" in its

report dated January

7, 1969, inter-alia, observed:

"Following the Fourth General Election, in the short period

between March

1967 and February, 1968, the Indian political

scene was characterised by numerous instances of change of

party allegiance by legislators in several

States. Compared to

roughly 542 cases in the entire period between the First and Fourth

G~neral Election; at least 438 defections occurred in these 12

months alone. Among Independents, 157 out of a total of 376

elected joined various parties in this period. That the lure of office

played a dominant part in decisions of legislators to defect was

obvious from the fact that out of 210 defecting legislators of the

States of Bihar, Haryana, Madhya Pradesh, Punjab, Rajasthan,

Uttar Pradesh and West Bengal, 116 were included in the Council

of Ministers which they helped to bring into being by defections.

The other disturbing features of this phenomenon were: mul­

tiple acts of defections by the same person or set of persons

(Haryana affording a conspicuous example);

few resignations

of the membership of the legislature of explanations

by

in­

dividual defectors, indifference on the part of defectors to

political proprieties, constituency preference or public opinion;

and the belief held

by the people and expressed in the press

that corruption and bribery were behind some of these

defec­

tions".

(emphasis supplied)

-

KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.j 719

The Committee on Defections recommended that a defector should A .

be debarred for a ·period of one year or till such time as he resigned his

. seat and got himself re-elected from appointment to the office of a Minister

including Deputy Minister or Speaker or Deputy Speaker, or any post

carrying salaries or allowances io be paid from the Consolidated Fund of

India or of the State or from the funds of Government Undertakings in

public sector in addition to' those to which the defector might be entitled B

as legislator. The Committee on Defections could not, t,owever, reach an .

agreed conclusion

in the matter of disqualifying a defector from continuing

to be a Member of Parliament/State Legislator.

Keeping in

view the recommendations of the Committee on Defee- C

tions, .the Constitution (Thirty-Second Amendment) Bill, 1973 was intro­

duced in the Lok

Sabha on May 16, 1973. It provided for disqualifying a

Member from continuing as a Member of either House of Parliament or

the State Legislature on his voluntarily giving up his membership of the

political party

by which he was set up as a candidate at such election or of D

which he became a Member after such election, or on his voting or abstalliing from voting in such House contrary to any direction issued by

such political party or by any person or authoriiy authorised by it in this

behalf without obtaining prior permission of such party, person or

authority. The said

Bill, however, lapsed on account of dissolution of the

House. Thereafter, the Constitution (Forty-eight Amendment)

Bill, 1979 E

was introduced

in the Lo~ Sabha which also contained similar provisions

for disqualification

on the ground of defection. This Bill also lapsed and it

was followed by the Bill which was enacted into the Constitution {Fifty­Second Amendment) Act, 1985.

5. This brings to the fore the object underlying the provisions in the

F

Tenth Schedule. The object is to curb the evil of political defections

motivated

by lure of office or other similar considerations which endanger

the foundations of our democracy. The remedy proposed

is to disqualify

the Member of either House of Parliament or of the

State Legislature who

is found to have defected from continuing as a Member of the House. The G

grounds of disqualification are specified in Paragraph 2 of the Tenth

Schedule.

Paragraph 2(1) relates to a Member of the House belonging to a

political party

by which he was set up as a candidate at the election.

U oder H

7W SUPREME COURT REPORTS [1992] 1 S.C.R.

A Paragraph 2(1) (a) such a Member would incur disqualification if he

voluntarily

gives up his membership of such political party.

Under clause

(b) he would incur the disqualification if he votes or abstains from voting

in the House contrary to

"any direction" issued by the political party to

which he belongs or by any person or authority authorised

by it in this

B behalf without obtaining,

in either case, prior permission of such political .

party, person or authority and such voting or abstention

has not been

condoned

by such political party, person or authority within fifteen days

from the date of such voting or abstention.

T~is sub para would also apply

to a nominate~ Member who is a Member of a political party on the date

of his nomination

as such Member or who joins a political party within six

C months of his taking oath.

Paragraph

2(2) deals with a Member who has been elected otherwise

than as a candidate set

up by any political party and would incur the

disqualification if he joins any political party after such election.

A

nominated Member of a House would incur his disqualification under sub

D para

(3) if he joins any political party.after the expiry of six months from

the date

on which he takes his seat:

6. Paragraphs 3 and 4 of the Tenth Schedule, however, exclude the

applicability of the provisions

for disqualification under para 2 in cases of

E

"split" in the original political party or merger of the original political party

with another political party.

These provisions

in the Tenth Schedule give recognition to the role of

political parties

in the political process. A political party goes before the

electorate

with a particular programme and it sets up candidates at the

F election on the basis of such programme.

A person who gets elected as a

candidate set

up by a political party is so elected on the basis of the

programme of that political

party. The provisions of Paragraph 2(1) (a)

proceed on the premise that political propriety and morality demand that if

such a person, after the election, changes

his affiliation and leaves the politi-

G cal party which had set him up as a candidate at the election, then he should

give up his Membership of

the legislature and go back before the electorate.

The same yard slick

is

applied to a person who is elected as an Independent

candidate and wishes to join a political party after the election.

Paragraph 2 {l) (b) deals with a slightly different situation 1.c. a

H variant where dissent becomes defection. If a Member while remaining a

KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 721

Member of the political party which had set him up as a candidate at the A

election, votes or abstains from voting contrary to "any direction'' issued

by the political party to which he belongs or by any person or authority

authorised

by it in this behalf he incurs the disqualification. In other words,

it deals

with a Member who

expresses his dissent from the stand of the

political party to which he belongs by voting or abstaining from voting in

the House contrary tb the direction issued by the political party.

Paragraph 6 of the Tenth Schedule reads:

"6 (1) If any question arises as to whether a Member of a House

has become subject to disqualification under this Schedule the

question shall be referred for the decision

of the Chairman or, as· the case may be, the Speaker of such Ho~e and his decision

shall be final:

B

c

Provided that where the question which has arisen is as to

whether the Chairman or the Speaker of a House has become D

subject to such disqualification, the questiol) shall be referred

for the decision of such Member

of the House as the House

may elect in this behalf and his decision shall be final.

'

(2) All proceedings under sub-Paragraph (l)of this Paragraph

in relation to any question as to disqualification of a Member

of a House under this Schedule shall be deemed to be proceed­

ings in Parliament within the meaning of Article 122 or, as the

case

may be, proceedings in the Legislature of a

State within

the meaning

of Article

212."

Paragraph 7 says:

"7. Bar of jurisdiction of courts: Notwithstanding anything in

this Constitution, no court shall have any .iurisdiction in respect

of any matter connected with the disqualification of a Member

of a House under this Schedule."'

7. The challenge to the consLitvtional validity of the Amendment which

introduces the Tenth Schedule

is sought to be sustained on many grounds. It

is urged that the constitutional Amendment introducing

Paragraph 7 of the

Tenth Schedule, in terms and in effect, seeks lo make a change in Chapter IV

E

F

G

of

Part V of the Constitution in that it denudes the jurisdiction of the H

7'12 SUPREME COURT REPORTS [1992) 1 S.C.R.

·-"'-

A Supreme Court under Article 136 of the Constitution of India and in Chapter

V of part VI in that it takes away the jurisdiction of the High Courts under

Article

226 and that, therefore, the legislative Bill, before presentation to the

President

for assent, would require to be ratified by the Legislature of not

. .

less than one half of the

States by resolution to that effect. In view of the

B

admitted position that no such ratification was obtained for the Bill, it is

contended, the whole Amending Bill-not merely Paragraph 7 - fails and the

amendment merely remains an abortive attempt to bring about an amend-

men!. It is further contended that the very concept of disqualification for

defection

is violative of the fundamental values and prjnciples

under)Ying ;..____

Parliamentary democracy and violates an elected representative's freedom

c of speech, right to dissent and freedom of conscience and is, th¢refore,

unconstitutional

as qestructive of a basic feature of the

India';' Constitution.

It is also urged thatthe investiture in the Speaker or the Chairman of the

poWer to adjudicate disputed defections would violate an important incident

of another basic feature

of the

Constitution, viz., Parliamentary democracy.

D

It is contended that an independent, fair and impartial n:iachinery for resolu-

tion of electoral disputes

is an essential and important incident of democracy

and that

the vesting of the power of adjudication in the

Speaker or the -< -

Chairman -who, in the Indian Parliamentary system are nominees of politi-

cal parties and are not obliged to resign their party affiliations after election

-

is violative of this requirement.

E

It is ·alternatively contended that if it is to be held that the amend-

ment

does not attract the proviso to Article 368(2), then Paragraph 7 in so

far as it takes away the power of judicial review, which, in itself, is one of

the

basic features of the

Constitution is liable to be struck down.

F

-~

8. There are certain other contentions which, upon a clo&er examina-. ' '

tion, raise issues more of construction than constitutionality. For instance,

some arguments were expanded on the exact connotations of a "split" as

distinct from a "defection" within the meaning of Paragraph 3. Then again, it

·a

was urged that under Paragraph 2(b) the expression "any direction" is so

wide that even a direction, which if given effect to and implemented might

bring about a result which may itself be obnoxious to and violative of constitu-

tional

ideals and values would be a source of disqualification. These are,

indeed, matters

of construction as to how, in the context in which the oc-

casion for the introduction of the Tenth

Schedule arose and the high purpose -

H it is intended to serve, the expression "any direction" occurring in Paragraph

__, KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 723

2(b) is to be understood. Indeed, in one of the decisions cited before us A

(Prakash Singh Badal & Ors. v. Union of India & Ors., AIR 1987 Punjab and

Haryana 263) this aspect has been considered by the High

Court The

decision

was relied upon before us. We shall examine it presently.

9. Supporting the constitutionality of the Amendment, respondents

B

urge that the Tenth Schedule creates a non-justiciable constitutional area

dealing with certain complex political issues

which have no strict ad-

judicatory disposition. New rights and obligations are created for the first

_--I

time uno-flatu by the Constitution and the Constitution itself has envisaged a

distinct constitutional machinery for the resolution of those disputes. These

rights, obligations and remedies,

it is urged, which are in their very nature and c

innate complexities are in political thickets and are not amenable to judicial

processes and the Tenth

Schedule has merely recongnised this complex char-

acter of the issues and that the exclusion of this area

is constitutionally

preserved by imparting a finality to the decisions of the Speaker or the

Chairman and by deeming the

Whole proceedings as proceedings within

D

Parliament or within the Houses of Legislature of the States erivisa'ged in

h )' Articles 122 and 212, respectively, and further by expressly excluding the

Courts' jurisdiction under Paragraph 7.

Indeed, in constitutional apd legal theory, it is urged, there is really no

ouster of jurisdiction of Courts or of Judicial Review

as the subject-matter

E

itself by its inherent character and complexities is not amenable to but out-

side judicial power and that the ouster of jurisdiction under

Paragraph 7 is

merely a consequential constitutional recognition of the non-amenability of

the subject-matter to the judicial power of the State, the corollary of which is

r,

that the Speaker or the Chairman, as the case may be, exercising powers

F under Paragraph 6(1) of the Tenth Schedule function not as a statutory

Tribunal but

as a part of the State's Legislative Department .

. It

is, therefore, urged that no

question of ihe ouster of jurisdiction of

Courts would at all arise inasmuch as in the

first place, having regard to the

political nature of the issues,

the subject-matter is itself

not amenable to

G

judicial power. It is urged that the question in the last analyses pertains to

the constitution of the House and the Legislature

is entitled to

deal with it

exclusively .

.

-;

10. It is further urged that Judicial Review-apart from Judicial

Review

of the legislation as inherent under a written constitution- is H

724 SUPREME COURT REPORTS [1992] 1 S.C.R.

:....-

A merely a branch of administrative law remedies and is by no means a basic

feature of the Constitution and that. therefore, Paragraph

7, being a

constitutional

pr0\1sion cannot be invalidated on some general doctrine not

found

in

the Constitution itself.

B

11. On the contentions raised and urged at the hearing the questions

that

fall for consideration arc the following:

(A) The Constitution (Fifty-Second Amendment) Act, 1985, in

so far as it seeks to introduce the Tenth Schedule is destructive

of the basic structure of the Constitution as it is violative of the

c

fundamental principles of

Parliamenta~y democracy, a basic

feature of the Indian constitutionalism and

is destructive of the

freedom of speech, right

to dissent

and freedom of conscience

as the pro,1sions of the Tenth Schedule seek to penalise and

disqualify elected representatives for the exercise of these rights

and freedoms which are essential to the sustenance of the

D

system of

Parliamentary democracy.

(B) Ha\ing regard to the legislative history and evolution of the

~ .--

principles underlying the Tenth Schedule, Paragraph 7 thereof

in terms and

in effect, brings about a change in the operation

E

and effect of Articles 136, 226 and 227 of the' Constitution of

India and, therefore, the

Bill introducing the amendment at-

tracts the proviso to Article

3<>8(2) of the Constitution. and

~--

would require t_o be ratified by th,· legislative of the States

before the Bill is presented for Presidential assent.

F

...

(C) In view of the admitted non-compliance with the pro'1so

' '

to Article 368(2) not only Paragraph 7 of the Tenth Schedule,

hut also the entire Bill resulting in the Constitution (Fifty-

Second Amendment) Act, 1985, stands vitiated and the pur-

ported amendment

is abortive and does not in law br.ing about

G

a valid amendment.

Or whether, the effect of such non-compliance invalidates

Paragraph 7 alone and the other pro\isions which, by themsel-

ves, do not attract the pro\-iso do not become invalid.

--··~

H ( D) Thal even if the effect of non-ratification by the legislature

r

; .

KIHOTO HOLLOHAN v. ZACH!LLHU [VENKATACHALlAH, J.] 725

of the States is to invalidate Paragraph 7 alone, the whole of A

the Tenth Schedule fails for non-severability. Doctrine of

severability,

as applied to ordinary statutes to promote their

constitutionality,

is inapplicable to constitutional Amendments.

Even otherwise, having regard to legislative intent and scheme

of the Tenth Schedule, the other provisions of the Tenth

Schedule, after the severance and exision of Paragraph

7,

become truncated, and unworkable and cannot stand and

operate independently. The Legislature would not have enacted

the Tenth Schedule without Paragraph 7 which forms

its heart

and core.

B

c

(E) That the deeming provision in Paragraph 6(2) of the Tenth

Schedule attracts the immunity under Articles

122 and 212. The

Speaker and the Chairman

in relation to the exercise of the

powers under the Tenth Schedule shall not be subjected to the

jurisdiction of any Court.

D

The Tenth

Schedule seeks to and does create a new and

non-justiciable area of rights, obligations and remedies to

be

resolved in the exclusive manner envisaged by the Constitution

and

is not amenable to, but constitutionally immune from curial E

adjudicative processes.

(F) That even if Paragraph 7 erecting a bar on the jurisdiction

of Courts

is held inoperative, the Courts' jurisdiction is, in any

event, barred as Paragraph 6(1) which imparts a constitutional

'finality' to the decision of the Speaker or the Chairman,

as the F

case may be, and

that such concept of 'finality' liars examination

of the matter

by the Courts.

(G)

The· concept of free and fair elections as a necessary

concomitant and attribute of democracy which

is a basic feature G

includes an independent impartial machinery for the adjudica-

tion of the electoral disputes. The

Speaker and the Chairman

do not satisfy these incidents of an independent adjudicatory

machinery.

The investiture of the determinative and adjudicative jurisdic-H

726

A

B

c

SUPREME COURT REPORTS [1992] l S.C.R.

tion in the Speaker or the Chairman, as the case may be, would,

by itself, vitiate the provision on the ground of reasonable

likelihood of bias and lack of impartiality and therefore denies

the imperative of an independent adjudicatory machinery. The

Speaker

and Chairman are elected and hold office on the

support of the majority

party and are not required to resign

their Membership of the political party after their election to

the office of the Speaker gr Chairman.

(H) That even if Paragraph 7 of the Tenth Schedule is held not

to bring about a change or affect Articles 136, 226 and 227 of

the Constitution, the am.endment is unconstitutional as it erodes

and

destroys judicial review which is one of the basic features

of

the Constitution.

12. Re: Contention (A) :

·

D The Tenth Schedule is part of the Constitution and attracts the same

canons of construction as are applicable to the expounding of the fun·

damental law. One constitutional power is necessarily conditioned by the

others as the Constitution is one "coherent document". Learned counsel

for the petitioners accordingly say that the Tenth Schedule should be read

subject to the basic fe~tures of the Constitution. The Tenth Schedule and

E certain essential incidents of democracy, it is urged, cannot co.exist.

F

G

In e*pounding the processes of the fundamental law, the Constitution

must be treated as a logical·whole. Westel Woodbury Willoughby in the

"Constitutional Law of the United States" states:

"The Constitution ·is a logical whole, each provision of which

is an integral part thereof, and it is, therefore, logically proper,

and indeed imperative, to construe one part in the light of the

provisions of the other parts."

[2nd Edn. Vol. 1page65]

A constitutional

document outlines only broad and general principles

meant to endure and be capable of flexible application to changing

cir­

cumstances - a distinction which differentiates a statute from a Charter

under

which all statutes are made. Cooley on

"Constitutional Limitations"

H says:

...

' '

KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 727

"Upon the adoption of an amendment to a constitution, the A

amendment becomes a part thereof;

as much so as if it had

been originally incorporated

in the Constitution; and it is to be

construed

accordingly."

[8th Edn. Vol. 1page129]

13. In considering the validity of a constitutional amendment the

changing and the changed circumstances that compelled the amendment

arc important criteria. The observations of the U.S. Supreme Court

in

Maxwell

v, Dow (44 Lawyer's Edition 597 at page 605) are worthy of note:

B

" ..... to read its language in connection with the known condition C

of affairs out of which the occasion for its adoption may have

arisen and then lo construe it, if there be therein any doubtful

experssions,

in a way sofar as is reasonably possible, to forward

the known purpose or object for which the amendment

was

adopted .......

" D

'r The report of the Committee on Defections took note of the unprincipled

r

, .

and unethical defections induced by considerations of personal gains said:

. " ..... What was most heartening was the feeling of deep concern -

over these unhealthy developments

in national life on the part E

of the leaders of political parties themselves. Parliament mir-

rored this widespread concern .............

"

[page 1]

14. It was strenuously contended by Shri Ram Jethmalani and Shri F

Sharma that the provisions of the Tenth Schedule constitute a flagrant

violation of those fundamental principles and values which are basic to the

sustenance

of the very system of Parliamentary democracy. The Tenth

Schedule, it

is urged, negates those very foundational

assumptions of

Parliamentary democracy; of freedom of speech; of the right to dissent and

of the freedom

of conscience. It is urged that unprincipled political defec- G

tions may be an evil, but it will be the beginning of much greater evils if

the remedies, graver than the disease itself, are adopted. The Tenth Schedule, they say, seeks to throw away the baby with the bath-water.

Learned counsel argue that "crossing the floor", as it has come to be called,

mirrors the meanderings of a troubled conscience on issues of political H

728 SUPREME COURT REPORTS (1992] 1 S.C.R.

A morality and to punish an elected representative for what really amounts

to an expression of conscience negates the very democratic principles

which the Tenth Schedule

is supposed to preserve and sustain. Learned

counsel referred to the famous Speech to the Electors of Bristol,

1774,

where Edmund Burke reportedly said:

B

c

D

"It ought to be the happiness and glory of a representative to

live in the strictest union, the closest corrspondence, and the

most unreserved communication with

his constituents. Their

wishes ought to have great weight with

him; their opinion, high

respect; their business, unremitted attention. It

is his duty to

sacrifice

his repose, his pleasures, his satisfactions to theirs­

and

above all, ever, and in all cases, to prefer their interest to

his own. , But his unbiased opinion, his mature judgment, his

enlightened conscience,

he ought not to sacrifice to you, to any

man, or to any set of men living .... Your representative owes

you, not his industry only, but his judgment; and he betrays,

instead of serving

you, if he sacrifices it to your

opinion."

(Sec: Parliament Functions, Practice & Procedures by JAG

Griffith and Michael Ryle 1989 Edn. page 70]

E 15. Shri Jcthmalani and Shri Sharma also relied upon certain observa-

tions of Lord Shaw in Amalgamated Society or Railway Serva/l/s v. Osbome,

[1910 A.C. 87] to contend that a provision which seeks to attach a liability of

disqualification of

an elected Member for freely expressing his views on

matters of conscience, faith and political belief are indeed restraints on the

freedom of speech-restraints opposed to public policy. In that case a

~

F registered trade union framed a rule enabling it to levy contributions on the • '

Members to support its efforts to obtain Parliamentary representation by

setting up candidates at elections.

It also framed a rule requiring all such

candidates to

sign and accept the conditions of the Labour

Party and be

subject to its whip. The observations

in the case relied upon by learned

G counsel are those of Lord

Shaw of Dunfermline who observed:

H

"Take the testing instance: should his view as to right and wrong

on a public issue

as to the true line of service to the realm, as

to the real interests of the constituency which has elected him,

or even of the society

which pays him, differ from the decision

of the parliamentary party and the maintenance

by it of its

--< KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAI I. J.] 729

policy, he has come under a contract to place his rnlc and A

action into subjection not to his own convictions, but to their

decisions. My Lords, I do not think that such a subjection is

compatible either with the spirit of our parliamentary constitu-

tion or with that independence

and freedom which have hither-

to been held to lie at the basis

of representative government in

the

United Kingdom."

[Page 111]

B

"For the people having reserved to themselves the choice of

their representatives, as the fence to their properties, could do C

it for no other end but that they might always be freely chosen,

and so chosen freely act

and advise, as the necessity of the

commonwealth and the public good should upon examination

and mature debate be judged to require .........

"

[Page 113] D

"Still further, in regard to the Member of Parliament himself,

he too

is to be free; he is not to be the paid mandatory of any

man, or organization

of men, nor is he entitled to bind himsel(

to subordinate his opinions on public questions to others, for

wages, or at the peril of pecuniary loss; and any contract

of this

character would not be recognized

by a Court of law, either

for its enforcement or in respect of its breach ........

"

[Pape 115]

It is relevant to observe here that the rule impugned in that case was

struck down

by the Court of Appeal-whose decision was upheld by the

House of Lords-on grounds of the Society's competence to make the rule.

It was held that the rule was beyond its powers. Lord Shaw, however, was

E

F

of the view that the impugned rule was opposed to those principles of G

public policy essential to the working of a representative Government. The

view expressed

by Lord Shaw

was not the decision of the House of Lords

in that case.

But, the real question

is whether under the

lnuian constitutional

scheme is there any immunity from constitutional correctives against a H

730 SUPREME COURT REPORTS [1992) 1 S.C.R.

A le~slatively perceived political evil of unprincipled defections induced by

. the lure of office and monetary inducements?

B

16. The points raised in the petitions are, indeed, far-reaching and

of

no small importance -invoking the 'sense of relevance of constitutionally

stated principles to unfamiliar settings'. On the one hand there

is the real

and imminent threat to the

very fabric of Indian demorcracy posed by

certain levels of political behaviour conspicuous by their utter and total

disregard of

well recognised political proprieties and morality. These

trends tend to degrade the tone of political

life and, in their wider propen­

sities, are

dangerous to and undermine the very survival of the cherished

C values of democracy. There is the le~slative determination through ex­

perimental constitutional processes to combat that evil.

On the other hand, there are,

as in all political and economic

experimentations, certain side-effects and fall-out which

might affect and

D hurt even honest dissenters and conscientious objectors. These' are' the

usual plus and minus of all areas of experimental legislation.

In these areas

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 constitu-

E tional ideals inevitably participate. There is no single litmus test of con­

stitutionality. 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

F is here that it becomes difficult to refute the inevitable legislative element

in all constitutional adjudications.

17. All distinctions of law-even Constitutional law-are, in the

ultimate anlyses,

"matters of degree". At what line the 'white' fades into

G the 'black'

is

c"cntially a le~latively perceived demarcation.

H

In his work "Oliver .Wendell Holmes -Free Speech and the Living

Constitution" (1991 Edition: New York University Publication) Pohhniin

says:

''All distinctions of law, as Holmes 11e~er tired of saying, were

' '

·-

'

KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 731

therefore "matters of degree." Eve11 in the case of constitutional A

adjudication, in which the issue was whether a particular exer-

cise of power

was within or without the legislature's authority,

the judge's decision

"will depend on a judgment or intuition

more subtle than

any articulate major

premise." As the par­

ticular exertiim of legislative power approached tlte ltazy gray line B

separating individual rig/its from legislative powers, tlte judge's

assessment of co11stitutionality became a subtle value judgment.

The judge's decision was therefore not deductive, formal, or

conceptual

in any sense.

[Page

217] C

[emphasis supplied]

Justice Holmes himself had said:

"Two widely different cases suggest a general distinction, which

is a clear one when stated broadly. But as new cases cluster D

around the opposite poles, and begin to approach each other,

the distinction becomes more difficult to trace; tlte detennina­

tions are made one way or tlte other 011 a very slight prepon­

derance of feeling, rather than articulate reason; and at last a

mathematical

line is arrived at by the contact of contrary E

decisions, which is so far arbitrary that it might equally well

have been drawn a little further to the one side or to the

other."

[Emphasis supplied]

[See: "Theory of Torts" American Law Review 7 {1873)]

The argument that the constitutional remedies against the immorality

and unprincipled chameleon-like changes of political hues

in pursuit of

power and pelf suffer from something violative of some basic features of

F

the Constitution, perhaps, ignores the essential organic and evolutionary

character of a Constitution and its flexibility as a

living entity to provide G

for the demands and compulsions of the changing times and needs. The

people of this country were not beguiled into believing that the menace of

unethical and unprincipled changes of political affiliations

is something

which the

law is

. helpless against and is to be endured as a necessary

concomitant of freedom of conscience. The onslaughts on their sensibilities

H

•

732 SUPREME COURT REPORTS [1992] 1 S.C.R.

A by the incessant unethical political defections did not dull their perception

of this phenomenon as a canker eating into the vitals of those values that

make democracy a

living and worth-while faith. This is preeminently an

area where Judges should defer to legislative perception of and reaction

to the pervasive dangers of unprincipled defections to protect the com-

B munity.

"Legislation may begin where an evil begins". Referring to the

judicial philosophy of Justice Holmes

in such areas, Pohlman again says:

c

D

E

F

"A number of Holmes's famous aphorisms point in the direc­

tion that judges should defer when the legislature reflected the

pervasive and predominant values and interests

of the

Eom­

munity. He had, for example) nO "practical" criterion to go on

except "what the crowd wanted." He suggested, in a humorous

vein that

his epitaph ................................................. No judge

ought to interpret a provision of the Constitution

in a way that

would prevent the American people from doing what

it really

wanted to

do. If the general consensus was that a certain

condi­

tion 1vas an "ei

1il" that O!tght to be co"ected by certain nieans,

then the govenunent had the po1ver to do it: "Legislation 111ay

begin 1vhere an evil begins"; "('onstitutionill la1v like other nrortal

contrivances has· to take sonic chances._" "Some play must be

allowed to the joints if the machine is to work." All of these

rhetorical flourishes suggest that Holmes deferred to the legis­

lature if and when he thought it accurately mirrored the abiding

beliefs, interests, and values of the American public."

(emphasis supplied)

!See: Justice Oliver Wendell Holmes-Free Speech and the

Living Constitution

by H.L. Pohlman 1991 Edn. page 233]

18. Shri Sharma contends that the rights and immunities under

Article 105(2) of the Constitution which according to

him are placed by

G judicial decisions even higher than the fundamental-right in Article 19(1)

(a), have violated the Tenth Schedule. There are at least

two objections to

the acceptability

of this contention. The first is that the Tenth Schedule

does not impinge upon the rights or immunities under Article

105(2).

Article 105(2) of the Constitution pro,ides:

H "105. Po\vers, privileges, etc., of the Houses of Parliament and

. '

KIHOTO HOLLOHAN v. ZACHJLLHU [YENKATACHALIAH, J.] 733

of the Members and committees thereof. -(1) ........... A

• (2) No Member of Parliament. shall be liable to any proceedings

in any court in respect of anything said or any vote given by

him in Parliament or any committee thereof, and no .person

shall be

so liable in respect of the publication by or under the

B

authority of either House of Parliament of any report, paper,

votes or proceedings."

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

Mem·

her of a House liable in any 'Court' for anything said or any vote given by him

c

in Parliament. It is difficult to conceive how Article 105(2) is a source of

immunity from the consequences of unprincipled floor-crossing.

Secondly, on the nature and character of electoral rights this Court

in Jyoti

Basu & Ors. v. Debi Gltosa/ & Ors., (1982] 3 S.C.R. 318 observed:

D

"A right to elect, fundamental though it is to democracy, is,

anomalously enough, neither a fundamental right nor a Com-

moo Law Right. It is pure and simple, a statutory right. So is

the right to be elected. So is the right to dispute an election.

Outside of statute, there

is no right to elect, no right to be

E

elected and no right to dispute an election. Statutory creations

they are, and therefore, subject to statutory limitation."

(Page

326] "'

Democracy is a basic feature of the. Constitution. Whether any F

, ' 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 al regular, prescribed inter·

'"''' is essential to the democratic system envisaged in the Constitution. So

G

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. From that it does not necessarily follow

that the rights and immunities under sub-article (2) of Article 105 of the

--

Constitution, are elevated into fundamental rights and that the Tenth

Schedule would

have to be struck down for its inconsistency with Article H

734 SUPREME COURT REPORTS [1992) 1 S.C.R.

A 105 (2) as urged by Shri Sharma.

19. Parliamentary democracy envisages that matters involving im­

plementation

of policies of the Government should be discussed by the

elected representatives

of the people. Debate, discussion and pursuasion

are, therefor, the means and essence of the democratic process. During the

B debates the Members put forward different points of view. Members

belonging to the same political party may also have, and may give expres­

sion to, differences

of opinion on a matter. Not unoften the view expressed

by the

Members in the House have resulted in substantial modification,

and even the withdrawal, of the proposals under consideration. Debate and

C expression of different points of view, thus, serve an essential and healthy

purpose in the functioning of Parliamentary democracy. At times such an

expression of views during the debate in the House may lead to voting or

abstenance from voting in the House otherwise than on party lines.

D But a political party functions on the strength of shared beliefs. Its own

political stability and social utility

depends on such shared beliefs and con­

certed action of its Members in furtherance of those commonly held prin­

ciples. 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

E ultimate analysis, is its source of sustenance --nay, indeed, its very

survival.

Intra-party debates are of course a different thing. But a public image of

disparate stands by Members of the same political party is not looked upon,

in political tradition, as a desirable state

of things. Griffith and Ryle on "Parliament, Functions, Practice & Procedure" (1989 Edn. page 119) say:

F ~

G

H,

"Loyalty to party is the llOnn, beillg based Oil shared beliefs. A > '

divided party is looked Oil with suspicioll by the electorate. It is

natural for Members to accept tl1e opinioll of tlteir Leaders alld

Spokesnten on the wide van·ety of nzatters on ivhich those Ment-

bers have llO specialist knowledge. Generally Members will ac­

cept majority decisions in the party even when they disagree.

It

is understandable therefore that a Member who rejects the

party whip even on a single occasion will attract attention and

more criticism than sympathy. To abstaill from voting

whell

required by party to vote is to suggest a degree of unreliability. To

vote against party is disloyalty. To join with others i11 abstention

KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 735

or voting with the other side sniacks of conspirac.:,~·. " A

(emphasis supplied)

Clause (b) of sub-para (1) of Paragraph 2

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" B

issued by the political party. The provision, however, recognises two excep­

tions: 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

\vithout obtaining such permission but

his action has been condoned by the

political party. This provision itself accommodates the possibility that there

C

may be occasions when a Member may vote or abstain from voting contrary

to the direction of the party to which

he belongs. This, in itself again, may

provide. a clue to the proper understanding and construction of the expres-

sion

"Any Direction" in clause (b) of Paragraph 2(1) whether really all

directions or whips from the party entail the statutory consequences

or

whether having regard to the extra-ordinary nature and sweep of the power D

and the very. serious consequences that flow including the extreme penalty

of disqualification the expression should be given a meaning confining its

operation to the contexts indicated by the objects and purposes of the Tenth Schedule. We shall deal \vith this aspect separately.

20. The working of the modern Parliamentary democracy is complex.

The area of the i11ter-se relationship between the electoral constituencies

and their elected representatives has many complex features and overtones.

The citizen as the electorate

is said to be the political sovereign. As long

as regular general elections occur, the electorate remains the arbiter

of the

ultimate composition of the representative legislative body to which the

Government of the day

is responsible. There are,

of course, larger issues

of theoretical and philosophical objections to the legitimacy

of a repre-.

sentative Government which might achieve a majority of the seats but

obtains only minority of the electoral votes.

It is said that even in England

E

F

this has been the phenomenon in every general elections in this century G

except the four in. the years

1900, 1918, 1931 and 1935.

But in the area of the inter-relationship between the constituency and

its elected representative, it

is the avowed endeavour of the latter to requite ·the expectations of his voters. Occasionally, this might conflict with his

political obligations to the political party sponsoring him which expects--H

736 SUPREME COURT REPORTS [1992] 1 S.C.R.

A and exacts in its own way-loyalty to it. This duality of capacity and

functions are referred to by a learned author thus:

B

c

D

E

F

"The functions of Members are of two kinds and flow from the

working of representative government. When a voter at a

general election,

in that hiatus between parliaments, puts his

cross against the name of the candidate

he is [most often!

consciously performing

two functions: seeking to return a

par­

ticular person to the house of commons as Member for that

constituency; and seeking to return to power

as the government

of the country a group of individuals of the same party

as that

particular person. The voter votes for a representative and for

a government. He

may know that the candidate he votes has

little chance of being

e[ected .......... "

"When a candidate is elected as a Member of the House of

Commons, he reflects those two functi9ns of the voter.

Whatever other part he may play, he will be a constituency M.P.

As such, his job will be to help his constituents as individuals

in their dealings with the departments of State. He must listen

to their grievances and often seek to persuade those

in authority

to provide remedies. He must have

no regard to the political

leanings of

his constituents for he represents those who voted

against him or

who did not vote at all as much. as those who

voted

for him. Even if he ;trongly disagrees with their complaint

he

may still seek to represent it, though the degree of

en­

thusiasm with which he does so is likely to be les~ great."

[See: Parliament-Functions, Practice and Procedures by JAG

Griffith and Ryle -

1989 Edn. page 69]

·

So far as his own personal views on freedom of conscience are

concerned, there

may be exceptional occasions when the elected

repre­

G sentative finds himself compelled to consider more closely how he should

act. Referring to these dilemmas the authors

say:

H

" .... The first is that he may feel that the policy of his party

whether

it is in office or in opposition, on a particular matter

is not one of which he approves. He may think this because of

his personal opinions or because of its special consequences

r

-" -

......

KIHOTO HOLLORAN v. ZACHILLHU [VENKATACHALIAH, J.J. 737

for his constituents or outside interests or because it reflects a A

general position within the party with which he cannot agree.

On many occasions, he may support the party despite his

disapproval. But occasionally the strength of his feeling

will be

such that he

is obliged to express bis opposition either by

speaking or by abstaining on a vote or even

by voting with the B

other side.

Such opposition will not pass unnoticed and, unless

the matter

is clearly one of conscience, he will not be popular · with the party whips.

The second complication

is caused by a special aspect of

parliamentary conduct which not frequently transcends party

C

lines. Members, who are neither Ministers nor front-bench

Opposition spokesmen, do regard as an important part of their

function the general scrutiny of Governmental activity. This

is

particularly the role of select committees

\hich have, as we

shall see, gained new prominence since 1979. No doubt, it is

superficially paradoxical to see Members on the Government D

side of the House joining

in detailed criticism of the administra-

tion and yet voting lo maintain that Government

in office. But

as one prominent critic of government has said, thereis nothing

inherently contradictory

in a Member sustaining the Executive

in its power or helping it to overcome opposition at the same E

time

as scrutinising the work of the executive in order both to'

improve it and to see that power is being exercised in a proper

and legitimate

fashion."

[pages 69 and 70 J

Speaking of the claims of the political party on its elected Member

Rodney Brazier

says:

F

"Once returned to the House of Commons the \!ember's party

expects

him to be loyal. This is not entirely unfair or

~proper,

for it is the price of the party's label which secured his election. G

But the question is whether the balance of a Member's obliga­

tions has tilted too far in favour of the requirements of party.

17te nonsense that a Wliip--even a three-line whfp--is no more

tlran a sununons to attend the House, and _that, once there, the'

Member is completely free to speak a11d vote as he thinks fit, was H

738

A

B

c

D

E

•

SUPREME COURT REPORTS [1992] 1 S.C.R.

still being put about, by the Parliamentary Private Secretary to the

Prime Minister, as receiltly as 1986. No one can ltonestly believe

tltat. Failure to vote with his party on a three-line whip without

permission invites a party reaction. This

will range (depending

on the circumstances and whether the offence

is repeated) from

a quiet word from a Whip and appeals to future loyalty, to a

ticking-off or a formal repraimand (perhaps from the Chief

Whip himsel!), to any one of a number of threats. The armoury

of intimidation

includes· the menaces that the Member will

never get ministerial office, or go on overseas trips sponsored

by the party, or be nominated by his party for Commons

Committee Memberships, or that he might be deprived of his

party's whip

in the House, or that he might be reported to his

constituency which might wish to consider his behaviour when

reselection comes round again ..... Does

the Member not enjoy

the Parliamentary privilege of freedom of speech? How can his

speeclt be free in the face of such party threats? Tire answer to

tire inquiring citizen is tltat the whip system is part of tire conven­

tionally established macltinery of political organisation in the

house, and has been niled not to infringe a Member's parliame11-

tary privilege in any way. The political parties are only too aware

of the utility of such a system, and would fight

in the last ditch

to keep

it."

(See; Constitutional Reform-Reshaping the British Political

System by Rodney Brazier, 1991 Edn. pages 48 and 49]

F The learned author, referring to cases in which an elected Member

G

H

is seriously unrepresentative of the general constituency opinion, or whose

personal behaviour falls below standards acceptable to his constituents

commends that what

is needed is some additional device to ensure that a

Member pays heed to constituents'

views. Brazier speaks of the efficacy of

device where the constituency can recall its representative. Brazier says:

"What sort of conduct might attract the operation of the recall

power? First, a Member miglit have misused his Membership of

tire House, for example to further his personal financial i11terests

in a 111a111ier offensive to his constinienrs. They might consider

that the action taken against him

by the house (or, indeed, lack

,

' .

_ ___,

KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 739

of action) was inadequate .......... Thirdly, the use of a recall power A

might be particularly apt when a Member changed his party but

declined to resign his seat and fight an immediate by-election. It

is not unreasonable to expect a Member who crosses the floor of

the House, or who joins a new party, to resubmit himself quickly

to the electors who had returned him in different colours. Of

B

course, in all those three areas of controversial conduct the

ordinary process of reselection might well result

in the Member

-~

being dropped as his party's candidate (and obviously would

definitely have that result

in

th~ third case). But that could only

occur when th~·time for reselection came; and in any event the

constituency would~ill have the Member representing them c

until the next gener I election. A cleaner and more timely

parting

of the ways would be

preferable. Sometimes a

suspended sentence does not meet the case."

[pages 52 and 53]

D

'!'

'Indeed, in a sense an 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 disqualfica-

tion for defection.

Unprincipled defection is a political and social evil. It

is perceived as such by the legislature. People, apparently, have grown E

distrustful of the emotive political exultations that such floor-crossings

belong to the sacred area of freedom of conscience, or of the right to

dissent or.of intellectual freedom. The anti-defection

law seeks to recognise

1'

the practical need to place the proprieties of political and personal con-

' duct--whose awkward erosion and grotesque manifestations have been the

F

base of the times-above certain theoretical assumptions which in reality

have fallen into a morass of personal and political degradation. We should,

we think, defer to this legislative wisdom. and perception. The choices in

constitutional adjudications quite clearly indicate the need for such

deference. "Let the end be legitimate, let it be within the scope of the

G Constiiution and all means which are appropriate, which are adopted to

that end

...

" are constitutional. [See Kazurbac/1 v. Morgan: 384 US 641].

_. -<[ 21. It was then ocged by Shri Jethmalani that the distinction between

the conception of "defection" and "split" in the Tenth Schedule is so thin

and artificial that the differences on which the distinction rests are indeed

H

740 SUPREME COURT REPORTS (1992] 1 S.C.R.

A an outrageous defiance oflogic. Shri Jethmalani urged that if floor-crossing

by one Member

is an evil, then a collective perpetration of it by 1/3rd of

the elected Members of a party

is no better and should be regarded as an

aggravated evil both logically and from the part of its aggravated

conse­

quences. But the Tenth Schedule, says Shri Jethmalani, employs its own

B inverse ratiocination and perverse logic to declare that where such evil is

perpetrated collectively by an artificially classified group of not less than

1/3rd Members

of that political party thal would not be a

"defection" but

" a permissible "split" or "merger". ·

This exercise to so hold-up the provision as such crass imperfection

C is performed by Shri Jethmalani with his wonted froensic skill. But we are

afraid what was so attractively articulated, on closer examination,

is,

per­

haps, more attractive than sound. The underlying premise in declaring an

individual act of defection

as forbidden is that lure of office or money could

be presumed to have prevailed. Legislature has

made this presumption on

D its

own

per_ception and assessment of the extant standards of political

proprieties and morality. At the same time legislature envisaged the need

to provide for such "floor-crossing" on the basis of honest dissent. That a

particular course of conduct commended itself to a number of elected

representatives might, in itself, lend credeQCe . and reassurance to a

presµmption of

bonafides. The presumptive impropriety of motives

E progressively weakens according

as the numbers sharing the action and

there

is nothing capricious and arbitrary in this legislative perception of the

distinction between 'defection' and 'split'.

Where

is the line to be drawn? What number can be said to generate

~

F a presumption of bonafides ? Here again the Courts have nothing else to > '

G

H

go by except the legislative wisdom and, again, as Justice Holmes said, the

Court has no practical criterion to go by except "what the crowd wanted".

We find no substance in the attack on the statutory distinction between

"defection" and "split".

Accordingly we hold:

"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

KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 741

speech, freedom of vote and conscience as contended. A

The provisions of Paragraph 2 do not violate any rights or

freedom

under Articles

105 and 194 of the Constitution.

The provisions are salutory and'1'-'e intended to strengthen the

fabric of Indian parliamentary democracy

by curbing unprin- B

cipled and unethical political defections.

The

contention that the provisions of the Tenth Schedule, even

with the exclusion of Paragraph 7, violate the basic st~ucture

of the Constitution in that they affect the democratic rights of

elected Members and, therefore, of the principles of Parliamen-C

tary democracy is unsou.nd and is rejected."

22. Re: Contention ( B ):

The thrust of the point is that Paragraph 7 brings about a change in

the provisions of Chapter IV of Part V and Chaptt!r V of Part VI of the D

Constitution and that, therefore, the amending Bill

falls within proviso to

Article 368 (2). We might, at the outset,

notice Shri Sibal's submissions on

a point

of construction of

Paragraph 7. Shri Sibal urged that Paragraph 7,

prope~ly construed, does not seek to oust the jurisdiction of Courts under

Articles

136, 226 and 227 but merely prevents an interlocutory

inter.wention E

or a

quia-timet action. He urged that the words

"in respect of any matters

connected with the disqualification

of a

Member" seek to bar jurisdiction

only till the maner

is finally decided by the speaker or Chairman, as the

case may be, and does not extend beyond that stage and that

in dealing

with the dimensions

of exclusion of the exercise of judicial power the broad

considerations are that provisions which seek to exclude Courts' jurisdic­ F

tion shall be strictly construed. Any construction which results in denying

the Courts'

is, it is urged, not favoured.

Shri Sibal relied upon the following

observations

of this Court in H.H. Maharajadhiraja Madhav Rao Jiwaji Rao

Scindia Bahadur & Ors: v. Union of India, [1971] 1

SCC 85:

" .... The proper forum under our Constitution for determining

a legal dispute

is the Court which is by training and experience,

assisted

by properly qualified advocates, titted to perform .that

task. A provision which purports to exclude the jurisdiction of

G

the Courts in certain matters and to

depriow the aggrieved party H

742

A

B

c

D

SUPREME COURT REPORTS [1992] 1 S.C.R.

of the normal remedy will be strictly construed, for it is a

principle not to be whittled down that an aggrieved party

will

not, unless the jurisdiction of the Courts is by clear enactment or• necessary implication barred, be denied his right to seek

recourse to the

c7ts for determination of his rights ............

".

"The Court will avoid imputing to the Legislature an intention

to enact a provision which flouts notions of justice and norms

of fairplay, unless a contrary intention

is manifest from words

plain and unambiguous. A provision

in a statute will not be

construed to defeat

its manifest purpose and general values

which animate

its structure. In an avowedly democratic polity,

statutory provisions ensuring the security of fundamental

human rights including the right to property

wil~ unless the

contrary mandate be precise and unqualified, be construed

liberally so

as to uphold the right. These rules apply to the

interpretation of constitutional and statutory provisions

alike."

[page 94-95]

It is true that the provision which seeks to exclude the jurisdiction of

Courts

is strictly construed.

See also, Mask & Co., v. Secretary of State, AIR

E 1940 P.C. 105.

But the rules of construction are attracted where two or more

reasonably possible constructions are open on the language of the statute.

Bu~ here both on the language of Paragraph 7 and having regard to the

F legislative evolution of the provision, the legislative intent is plain and

manifest. The words "no Court 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 deliberate and purposed presence of

Paragraph 7 is clear from the history ol the previous proposed legislations on

G the subject. A comparison of the provisions of the Constitution (Thirty­

second Amendment)

Bill, 1973 and the Constitution (Forty-eight Amend­

ment) Bill,

1978, (both of which had lapsed) on the one hand and the

Constitution (52nd Amendment)

Bill, 1985, would bring-out the avowed and

deliberate intent of

Paragraph 7 in the Tenth Schedule. The previous Con-

H stitution (32th and 48th Amendment) Bills contained similar provisions for

' '

~-

i KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 743

-----<

disqualification on grounds of defection, but, these Bills did not contain any A

-

clause ousting the jurisdiction of the Courts. Determination of disputed dis-

qualifications was left to the Election Commission as in the case of other

disqualifications under Articles 102 and 103 in the case of members of Par-

liament and Articles 191and192 in the case of Members of Legislature of the

States. The Constitution (Fifty-second Amendmet)

Bill for the first time

B

envisaged the investiture of the power to decide disputes on the Speaker or

the Chairman. The purpose of

the enactment of Paragraph 7, as the debates

in the Houses indicate, was to bar the jurisdiction

cif the Courts under Ar-

-~

tides 136, 226 and 227 of the Constitution of India. Shri Sibal's suggested

contention

would go against all these over-whelming interpretative criteria ·apart from its unacceptability on the express language of paragraph 7. c

23, But it was urged that no question of change in Articles 136, 226 and

227 of the Constitution within the meaning of clause (b) of the proviso to

Article 368(2) arises at all in view of the fact that the area of these rights and

obligations being constitutionally rendered non-justiciable, there

is no

judi-

D

cial re\icw under Articles 136, 226 and 227 at all in the first instance so as to

admit of any idea of its exclusion. Reliance was placed on the decisions of this

'Y Court in Sri Sa1rkari Pras<1d Singh Deo v. U11io11 of /11dia and Stare of Bilrar,

(1952) SCR 89 and Sajjan Si11glt v. State of Rajasrlta11, (1965) 1 SCR 933.

24. In Sankari Prasad's case, the question was whether the Amendment E

introducing Articles 31A and 31B in the Constitution required ratification

under the said

proviso. Repelling this contention it was observed :

"It will be seen that these articles do nOI either in terms or in

~

J,

effect seek to make any change in artick 226 or in articles 132

F

and 136. Article 31A aims at saving laws providing for the

compulsory acquisition by the State of a certain kind of proper-

ty from the operation of articles 13 read with other relevant

articles in Part Ill, while article 318 purports to validate certain

specified

Acts and

Regulations already passed, which, but for

G

such a provision, would be liable to be impugned under Article

13. It is not correct to say that the powers of the High Court

under Article

226 to issue

wrils "for the enforcement of any of .

the rights conferred by Part Ill"' or of this Court under Articles

,.. ~

132 and 136 to entertain appeals from orders issuing or refusing

such

writs are in any way affected. They remain just the same H

A

B

c

D

744 SUPREME COURT REPORTS [1992] l S.C.R.

as they were before: only a certain class of ease has been

excluded from the purview of Part III and the courts could no

longer interfere,

no because their powers were curtailed in

an¥

manner or to any extent, but because 'there would be no

occasion hereafter for the exercise of their power in such

cases." (1982 SCR 89 at 108]

In Sajja11 Si11gh's case, a similar contention was raised against the

'alidity of the Constitution (17th Amendment) Act,

1964 by which Article .l I A was again amended and 44 statutes were added to the IX Schedule to

the Constitution. The question again was whether the amendment required

ratification under the proviso to Article

368. This Court noticed the ques­

tion thus:

"The question which calls for our decision is: what would be

the requirement about making an amendment

in a constitution­

al provision contained in

Part III, if as a result of th~ said

amendment, the powers conferred on the High Courts under

Article

226 are likely to be

affected?"

(P. 940]

E Negativing the challenge to the amendment on the ground of non-

ratification, it was held:

F

G

H

" ..... Thus, if the pith and substance test is applied· to the

amendment made

by the impugned Act, it would be clear that Parliament is seeking to amend fundamental rights solely with

the object of removing any possible obstacle

in the fulfilment

of the socio-economic policy

in which the party in power

believes.

If that he so, the effect of the amendment on the area

over which the High Courts' powers prescribed

by Article 226

operate, is incidental and in the present case can be described

as of an insignificant order. The impugned Act does not pur­

port

to change the provisions of Article 226 and it c~nnot be

said even to

have that effect directly or in any appreciable

measure. That

is why we think that the argument that the

impugned Act

falls under the proviso, cannot be sustained ......

"

(P.944]

-

KIHOTO HOLLO HAN v. ZACHILLHU [VENKATACHALIAH, J.] 745

-'"'-'

The propositions that fell for consideration is Sa11kari Prasad Singh's A

and Sajja11 Singh 's cases are indeed different. There the jurisdiction and

power of the Courts under Articles

136 and 226 were not sought to be

taken away nor was there

any change brought about in those provisions

either

"in terms or in effect", since the very rights which could be adjudi-

cated under and enforced

by the Courts were themselves taken away by

B

the Constitution. The result was that there was no area for the jurisdiction

of the Courts to operate upon. Matters are entirely different

in the context

of paragraph

7. Indeed the aforesaid cases, by necessary implication sup-

port the point urged for the petitioners. The changes

in Chapter IV of Part

V and Chapter V of

Part VI envisaged by the proviso need not be direct.

The change could be. either "in terms of or in effect". It is not necessary c

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 m would, but for Paragraph 7, have operated there is 'in effect' a change

in those provisions attracting the proviso. Indeed this position was recog-

nised

in

Sajja11 Si11gh's case where it was observed: I

D

"If the effect of the amendment made in the fundamental rights

on Article

226 is direct .and not incidental and is of a very

significant order, different considerations may perhaps arise.''

E

[P.944)

In the present cases, though the amendment does not bring in any

:hange directly in the language of Articles 136, 226 and 227 of the Con-

stitution, however,

in effect paragraph 7 curtails the operation of those

t

Articles respecting matters falling under the Tenth Schedule. There is a F

_,' '. change in the effect in Articles .136, 226 and 227 within the meaning of

clasue (b) of the proviso to Article 368(2). Paragraph

7, therefore, attracts

the proviso

and ratification was necessary.

Accordingly,

on Point

B, we hold:

G

"That h.-ing 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

.J.

~

Tenth Schedule of the Constitution in terms and in effect bring H

A

B

746

SUPREME COURT REPORTS [1992J 1 S.C.R.

about a change

in the operation and effect of Articles 136, 226

and 227 of the Constitution of India and, therefore, the amend:

ment would require to be ratified

in accordance with the

proviso to sub-Article

{2) of Article 368 of the Constitution of

India."

25. Re: Co11te11tio11s 'C' and 'D':

The criterion for determining the validity of a law is the competence

of the law-making authority. The competence of the law-making authority

would depend on the ambit of the legislative power, and the limitations

C imposed thereon as also the limitations on mode of exercise of the power.

Though the amending power

in a constitution is in the nature of a con­

stituent power and differs

in content from the Legislative power,

th"e

limitations imposed on the constituent power may be substantive as well as

procedural. Substantive limitations are those which restrict the field

of

D exercise of the amending power and exclude some areas from its ambit.

E

F

Procedural limitations are those which impose restrictions with regard to

the mode of exercise of the amending power. Both these limitations,

however, touch and affect the constituent power itself, disregard of which

invalidates its exercise.

26. The Constitution provides for amendment in Articles 4, 169, 368,

paragraph 7 of Fifth Schedule and paragraph

21 of Sixth Schedule. Article

4 makes provisions for amendment of the First and the Fourth Schedules,

Article

169 provides for amendment in the provision of the Constitution

which

may be necessary for abolition or creation of Legislative Councils in

States, paragraph 7 of the Fifth Schedule provides for amendment of the

Fifth Schedule and paragraph

21 of Sixth Schedule provides for amend-

ment

of the

Sixth Schedule. All these provisions prescribe that the said

a~endments can be made by a law made by Parliament which can be

passed like any other

law by a simple majority in the Houses of

Parliament.

Article 368 confers the power to amend the rest of the provisions of the

G Constitution. In sub-Article (2) of Article 368, a special majority-two­

thirds of the members of each House of Parliament present and voting and

majority

of total membership of such House - is required to effectuate the

amendments. The proviso

to sub-article (2) of Article 368 imposes a further

requirement that if any change

in the provisions set out in clauses (a) to

H ( e) of the proviso, is intended it would then be necessary that the amend-

KIHOTO HOLLOHAN ''· ZACHILLHU [VENKATACHALIAH, J.] 747

ment be ratified by the legislature of not less than one-half of the States.

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. The amending power under Article

368 is

subject to the substantive limitation in that. the basic structure cannot be

altered or the basic features of the Constitution destroyed. The limitation

r!'quiring a special majority is a procedural one. Both these limitations

impose a fetter on the competence of Parliament to amend the Constitution

and any aTRcndment made in disregard of these limitations would go

beyond the amend:ng power.

27.

While examining the constitutional validity of laws the principle

that

is applied is that if it is possible to construe a statute so that its validity

A

B

c

can be sustained against a constitutional attack it should be so construed D

and that when part of a statute

is \'alid and part is void, the valid part must

be separated

from the invalid part. This is done by applying the doctrine

of severability. The rationale or this doctrine has been explained by Cooley

in the following words:

"It will somcrimcs he found that an act or the legislature is E

opposed in some of its provisions to the constitution, while

others, standing

by

themselves, would be unobjectionable. So

the forms observed in passing it may be sufficient for some of

the purposes sought to be accomplished

by it, but insufficient

for others. In

any such case the portion which

connicts with F

the constitution, or

in regard to which the necessary conditions

have not been observed,

must be treated as a nullity. Whether

the-other parts of the statute must also be adjudged void

because of the association must depend upon a consideration

of the object of the

law, and in what manner and to what extent

the unconstitutional portion affects the remainder. A statute,

it G

has been said, is judicially held to be unconstitutional, because

it is not within the scope of legislative authority; it may either

propose to accomplish something prohibited

by the constitu­

t:on, or to accomplish some lawful, and even laudable object,

by means repugnant to the Constitution of the United States H

A

B

c

D

E

F

G

'H

748 SUPREME COURT REPORTS [1992] 1 S.C.R.

or of the State. A statute

may contain some such

provisions,

and yet the same act, having received the sanction of all

brandies of the legislature, and being

in the form of law, may

contain other useful and salutary provisions, not obnoxious to

any just constitutional exception. ll would be inconsistent with

all just principles of constitutional law to adjudge these

enact­

ments void because they are associated in the same act, but not

connected with or dependent on others which are unconstitu­

tional."

· [Cooley's Constitutional Limitations; .8th Edn. Vol. I, p. 359-

360]

In R.M.D. Chamarbaugwalla v. Union of flldia, [1957] SCR 930, this

Court has observed:

"The question whether a statute, which is void in part is to be

treated as void in toto, or whether it is capable of enforcement

as to that part which

is valid is one which can arise only with

reference to

laws enacted by bodies which do not possess

unlimited powers of legislation, as, for example, the legislatures

in a Federal

Union. The limitation on their powers may be of

two kinds: ll may be. with reference to the subject-matter on

which they could legislate, as, for example, the topics

enumerated

in the Lists in the Seventh Schedule in the Indian

Con.stitution,

ss. 9l and 92 of the Canadian Constitution, and

s. 51 of the Australian Constitution; or it may be with reference

lo the character of the legislation which they could enact in

respect of ~ubjcL·t1., a~'.'>i~ncd to them, as for example, in relation

to the fundamental rights guaranteed in Part Ill of the Cnn­

stitution and similar constitutionally protected rights in the

An1erican and oth,,:r Constitution . .:;. When a legislature \Vho.sc

authority i~ ~uhj,,:ct to lin1itations aforesaid enacts a law \vhich

is \i.·ho1ly in excess of its po\vcrs. it is entirely void and must he

completely ignored. BuJ where the legislation falls in part within

the ·area allotted to ii and in part outside it. it is undoubtedly

void as to the laller: 1'u1 does it on that account become

necessarily void in its l!ntir..:ty? The ans\'Cr to this 4ucstion must

depend on whether what is valid could be separated from what

-

-

KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAll, J.J 749

is invalid, and that is a question which has to be decided by the A

court on a consideration of the provisions of the Act.'' [P.940]

The doctrine of severability has been applied by this Court in cases

of challenge to the validity of an amendment on the ground of disregard

of the substantive limitations on the amending power, namely, alteration of B

the basic structure. But oniy the offending part of the amendment which

had the effect of altering the basic structure

was struck down while the rest

of the amendment was unheld,

See : S/Jri Kesavananda Bharti

Sripadagalavant v. State of Kera/a, [1973] Supp. SCR l; Minen•a Mills Ltd.

& Ors. v. U11io11 of India & Ors., [19811 1 SCR 206; P. Sambhanrnrthy &

Ors, etc. v. State of A11dhra Pradesh & Anr., [1987] 1 SCR 879. C

28. Is there anything in the procedural limitations imposed by sub­

Article (2) of Article 368 which excludes the doctrine of severability in

respect of a law which violates the said limitations? Such a violation may

arise when there is a composite Bill or what is in statutory context or jargon D

called a 'Rag-Bag' measure seeking amendments to several statutes under

;,-one amending measure which seeks to amend various provisions of the

Constitution some of which may attract clauses (a) to (e) of the proviso to

Article 368(2) and the Bill, though passed

by the requisite majority in both

the Houses of Parliament has received the assent of the President without

it being sent to

States for ratification or having been so sent fails to receive E

such ratification from not less than half the States before the Bill is

presented for assent. Such an Amendment Act is within the competence

of Parliament insofar as it relates to provisions other than those mentioned

in clauses (a) to (e) of pr9viso to Article 368(2) but in re<pect of the

amendments introduced

in provisions referred to in

clauses (a) to (e) of F

proviso to Article 368(2), Parliament alone is not competent to make such

amendments on account of some constitutionally recognised federal prin­

ciple being invoked. If the doctrine of severability can be applied it can be

upheld as valid in respect of the amendments within the competence of

Parliament and only the amendments which Parliament alone

was not

competent to make could be declared invalid.

G

29. Is there anything compelling in the proviso to Article 368(2)

requiring it to

be construed as excluding the doctrine of scvcrability to such

an amendment'! It is settled rule of statutory construction lhat "the proper

function

of a proviso

is to Cxccpt and deal \vith a case 'vhich could H

750 SUPREME COURT REPORTS (199211 S.C.R.

A otherwise fall within the general language of the main enactment, and its

effect

is confined to that

case" and that where "the language of the main

enactment

is

clear and unambiguous, a proviso can have no repercussion

on the interpretation

of the main enactment, so as to

exclude from it by

implication what clearly falls within its express terms". (See : Madras &

B Sowhem Malirattu Railway Company v. Bezwada M1111icipality, (1944) 71

I.A. 133 at p. 122; Commissioner of lnconie Tax, '-~vsore v. b1do-Merca111i/e

Bank Ltd., IJ959) Supp. 2 SCR 256 at p. 266.

The proviso to Article 368(2) appears to have been introduced with

a \·iew lo giving effect to the federal principle. In the matter of amendment

C of provisions specified in clauses. (a) to (e) relating to legislative and

executive powers of the States vis-a-vis the Union, the Judiciary, the

election of the President and the amending power itself, which have a

bearing on the States, the proviso imposes an additional requirement of

ratification of the amendment which seeks to effect a change in those

D provisions before the Bill is presented fm the assent of the President. It is

salutary that the scope of the proviso is confined to the limits prescribed

therein and

is not construed so as to take away the power in the main part ,,f Article Y.S (2). An amendment which otherwise fulfils the fcquiremcnts

of Article 368(2) and is outside the .specified cases which require ratifica-

E tion cannot be denied legitimacy on the ground alone of the company it

keeps. The main par! of Ar1icle Y.8(2) directs that when a Bill which has

been passed by the requisite special majority by both the Houses has

reccivcJ the assent of the President "the Constitution shall stand amended

F

in accordance with the terms of the Bill". The proviso cannot have the

effect nf interdicting this constitutional declaration and mandate to mean

that

in a case where the proviso has not been

complied-even the amend­

ment> which do not fall within lhc ambit of the proviso also become

abortive. The words "the amendment shall also require to be ratified by

the legislature" indicate that what is required to be ratified by the legisla­

tures of the States is the amendment seeking to make the change in the

G 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

amend­

ment 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. Indeed the following

H observations of this Court in Sujja11 Singh case (supra) arc apposite:

•

KlllOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 751

"In our opinion, the two parts of Art. 368 must on a reasonable A

construction be harmonised with each other in the sense that

the scope and effect of either of them .should not be allowed

to be unduly reduced or enlarged."

(P.940) B

30. During the arguments reliance was placed on the words "before

the Bill making provision for such amendment is presented to the President

for assent" to sustain the argument that these words imply that the ratifica-.

tiun nf the Bill by not less than one-half of the States is a condition-prece­

dent for the presentation of the Bill for the assent of the President. It is C

further argued that a Bill which seek.~ to make a change in the provisions

referred to in clauses (a) to (e) of the pro,iso cannot be presented before

the President for his assent without such ratification and if assent is given

by the President in the absence of such ratification, the amending Act

would be void and ineffeL1ive in its entirety. D

A similar situation can arise in the context of the main part of Article

:11"'8(2) which provides: "when the Bill is passed In each House by a majority

nf the total membership of that House and by a majority of not less than

two-thirds of the Members of that House present and voting, it shall be

presented to the President". Here also a condition is imposed that the Bill £

shall be presented to the President for his assent only after it has been

paS<ied in each House by the prescribed special majority. An amendment

in the First and Fourth Schedules referable to Article 4 can be introduced

hy Parliament by an nrdinary law passed by simple majority. There may be

a Bill which may contain amendments made in the First and Fourth F

Schedules as well as a'l'cndmcnls in other prO\isions of the Constitution

-excluding those referred to in the proviso which can be amended only by

a special majority under Article 368(2) and the Bill after having been

passed

only by an ordinary majority instead of a special majority has

received the assent of the

President. The amendments which are made in

the First and Fourth Schedules by the said amendment Act were validly G

made in view of Article 4 but the amendments in other prO\isions were in

disregard to Article 368(2) which requires a special majority. Is not the

doctrine of severability applicable to such an amendment so that amend­

ments made in the First and Fourth Schedules may be upheld while

declaring the amendments in the other prmisions as ineffective? A con-H

752 SUPREME COURT REPORTS (1992) 1 S.C.R.

A trary view excluding the doctrine of severability would result in elevating a

procedural limitation on the amending power. to a level higher than the

substantive limitations.

31. In Bribery

Commissio11er v. Pedrick Ranasi11ghe, (1%5 A.C. 172),

the Judicial Committee has had to deal with a somewhat similar situation.

B This was a case from Ceylon under the Ceylon (Constitution) Order of

1946. Clause ( 4) of section 29 of the said Order in Council contained the

amending power

in the following terms:

c

D

E

"( 4) In the exercise of its powers under this section, Parliament

may amend or repeal any of the provisions of this Order, or of

any other Order of Her Majesty in Council in its application

to the Island:

Provided that no Bill for the amendment or repeal of any of

the provisions of this Order shall be presented for the Royal

Assent unless

it has endorsed on it

a certificate under the hand

of the Speaker that the number of votes cast

in favour thereof

in the House of Representatives amounted to not less than

two-thirds of the whole number of members of the House

(including those not present).

Every

certificate of the Speaker under this sub-section shall be

conclusive for all purposes and shall not be questioned in any

court of law."

[P.194]

In that case, it wa' found that section 41 of the Bribery Amendment

F Act,

1958 made a provision for appointment of a panel by the Governor­

General

on the advice of the Minister of Justice for selecting members of

the Bribery Tribunal

while section 55 of the Constitution

.vested the ap­

pointment, transfer, dismissal and disciplinary control of judicial officers

in the Judicial Service Commission. It was held that the legislature had

purported to pass a

law_ which, being in conflict with section 55 of the

G Order in Council. must he treated, if it is to be valid, as an implied

alteration of the Constitutional

prrn·isions about the appointment of judi­

cial officers and could only he made hv laws which comply with the special

kgislative procedure laid down in .,ectiorr 29(4). Since there was nothing

to show that the Bribery Amendment Act,

1951 was passed by the neces-

H sary two-thirds majority, it

was held that "any Bill which does not comply

KIHOTO HOLLORAN v. ZACHILI.HU [VENKATACHALIAH, J.] 753

with the condition precedent of the proviso, is and remains, even though A

it receives the Royal Assent, invalid and ultra vires". Applying the doctrine

of severability the Judicial Committee, however, struck down the offending

provision, i.e. section

41 alone. In other words passing of the Bill by special

majority was the condition precedent

for presentation of the Bill for the

assent. Disregard of such a condition precedent for presenting a

Bill for B

assent did not result in the entire enactment being vitiated and the law

being declared invalid in its entirety but it only had the effect of invalidation

of a particular provision which offended against the limitation on the

amending power. A comparison of the language used in clause ( 4) of

section

29 with that of Article 368{2) would show that both the provisions

bear a general similarity of purpose and both the provisions require the

C

passing of the Bill by special majority before it was presented for assent.

The same principle would, therefore, apply while considering the validity

of 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) and such a

law, even though passed D

by the simple majority and not by special majority, may be upheld in

respect of the amendments made

in the First and Fourth Schedules. 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 E

the Bill

is presented to the President for assent contained in the proviso.

The principle of severability can be equally applied to a composite amend­

ment which contains amendments

in provisions which do not require

ratification

by States as weli as amendment

iu provisions which require

such ratification and

by application of the doctrine of severability, the F

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.

32. The test of ,e,·crability requires the C'!.llft to ascertain whether G

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 wnrkahle. If the provisions of the Tenth Schedule arc

considered

in the

backgrnun<l of the legislative history. namely, the report

of the 'Committee on Defections· as well as the earlier Bills which \Vere H

754 SUPREME COURT REPORTS [1992) 1 S.C.R.

A moved to curb the evil of defection it would be evident .that the main

purpose underlying the constitutional amendment 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

B which was to curb the evil of defection. It cannot be said that the con­

stituent body would not have enacted the other provisions in the Tenth

Schedule

if. it has 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 can, therefore, be held to be severable from the rest of the

C provisions.

D

E

F

G

H

We accordingly hold on contentions 'C' and 'D':

"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

Bin

which do not attract and require such ratification. HaviQg

regard to the mandatory language of Article 368 (2) that

"thereupon the Constitution shall stand amended" the opera­

tion of the proviso shoul~ not be extended to constitutional

amendments

in Bill which can stand by themselves without such r~tification.

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.

·

That Paragraph 7 of the Tenth Schedule contains a provision

1

l

' l

r KIHOTO HOLLORAN v. ZACHILLHU [VENKATACHAL!Afl, J.I 755

which is independent of, and stands apart from the main A

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

inde­

pendently of Paragraph 7 and are complete in themselves

workable and are not truncated by the· excision of Paragraph

7."

33. Re: Contentions 'E' and 'F':

B

These two contentions have certain over-lapping areas between them .C

and admit of being dealt with together. Paragraph 6(1) of the Tenth

Schedule seeks to impart a statutory finality to the decision

of the Speaker

or the Chairman. The argument

is that, this concept of 'finality' by itself,

excludes Courts'

jurisdiction. Does the word "final" render the decision of

the

Speake_r immune from Judicial Review? It is now

well-accepted that a

finality clause

is not a legislative magical incantation which has that effect D

of telling of Judicial Review. Statutory finality of a decision presupposes

and

is subject to its consonance with the statute.

On the meaning and effect

of such finality clause, Prof. Wade in 'Administrative Law' 6th Edn. at page

720 says:

"Many statues provide th.at some decision shall be final. That

provision

is a bar to 'any appeal. But the courts refuse to allow

it to hamper the operation of judicial review. As will be seen

in this and the following sections, there is a firm ju<licial policy

against allowing the rule of

law to be undermined by weakening

the powers of the court.

St~tutory restrictions on judicial

.remedies are given the narrowest possible construction, some­

times even against the plain meaning of the words. This is a

sound policy, since otherwise administrative authorities and

tribunals would be given uncontrollable power and could

vio-

E

F

late the law at will. 'Finality' is a good thing but justice is a G

better."

"If a statute says that the decision 'shall be final' or 'shall be

final and conclusive to

all intents and purposes' this is held to

mean merely

t.hat there is no appeal: judicial control of legality

is unimpaired.

"Parliament only gives the impress of finality to H

A

B.

c

D

E

F

756 SUPREME COURT REPORTS (1992) 1 S.C.R.

the decisions of the tribunal on condition that they are reached

in accordance with the law. This has been the consistent

doctrine for three hundered years."

Learned Professor further says:

"The normal effect of a finality clause is therefore to prevent

any appeal. There

is no right of appeal in any case unless it is

given by statute. But where there is general provision for

appeals, for example, from quarter sessions to the High Court

by case stated, a subsequent Act making the decision of quarter

session final on some specific matter

will prevent an appeal.

But

in one case the Court of Appeal has deprived a finality

clause of part even of this modest content, holding that a

question which can

be resolved by ce.rtiorari or declaration can

eqJally well be the subject of a case stated, since this is only a

matter of machinery. This does not open the door to appeals

generally, but only to appeals

by case stated on matters which

could equally

well be dealt with by certiorari or declaration,

i.e., matters subject to judicial review.

"A provision for finality may be important in other contexts,

for example when the question

is whether the finding of one

tribunal

may be

reope~d before another, or whether an inter-

locutory order

is open to appeal ........

". ·

(page 721)

Lord Devlin had said "Judicial interference with the executive cannot

for long greatly exceed what Whitehall

will

accept" and said that a decision

may be made un-reviewable "And that puts the lid on". Commenting on

this Prof. Wade says: "But the Anisminic case showed just the opposite,

when the House of Lords removed the

lid and threw it

away." [See:

Constitutional Fundamentals, the Hainlyn Lectures, 1989 Edn. p.88).

G In Durga Sha11kar Mehta v. Raghuraj Singh, AIR 1954 SC 520 the

order of the Election Tribunal

was made final and conclusive bys.

105 of

the Representation of the People Act, 1951. The contention was that the

finality and conclusiveness clauses barred the jurisdiction of the Supreme

Court under Article

136.

This contention was repelled. It was observed:

H " .... but once it is held that it is a judi, ial tribunal empowered

KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 757

and obliged to deal judicially with disputes arising out of or in A

connection with election, the overriding power of this Court to

grant special leave,

in proper cases, would certainly be attracted

and this power cannot be excluded

by any parliamentary

legis­

lation .

...... But once that Tribunal has made any determination or

B

adjudication on the matter, the powers of this Court to interfere

by way of special leave can always be exercised .

...... The powers given

by Article 136 of the Constitution,

however, are

in the nature of special or residuary powers which C

·are exercisable outside the purview of ordil)ary law, in cases

where the needs of justice demand interference

by the Supreme

Court of the land .....

Section 105 of the Representation of the People Act certainly

gives finality to the decision of the Election Tribunal so far a.' D

that Act

is concerned and does

·not provide for any further

appeal but that cannot

in any way cut down or affect the

overriding powers which this court can exercise in the matter

of granting special leave under Art. 136 of the

Constitution."

[p.522] E

34. Again, in Union of India v. Jyothi Prakash Mitter, (1971] 3 SCR

483 a similar finality clause in Articles 217(3) of the Constitution came up

for consideration. This Court said:

" ..... The President acting under Article 217(3) performs a judi-F

cial function of grave .importance under the scheme of our

Constitution. He cannot act -00 the advice of his Ministers.

Notwithstanding the declared finality of the order of the Presi­

dent the Court has jurisdiction in appropriate cases to set aside

the order, if

it appears that it was passed on collateral con-G

siderations or the rules of natural justice were not observed, or

that the

President's judgment was coloured by the advice or

representation made by the executive or

it was founded on no evidence ..... "

[p.505] H

758 SUPREME COURT REPORTS ( 1992) t S.C.R.

~

A

Referring t~ the expression •'final" occurring in Article 311(3) of the

Constitution t~ Court in Union of India & A111: v. Tulsiram Paid & On.

(1985) Supp. 2 SCR 131 at 1>age 274 held:

" ........ The finality given by clause (3) of Article 311 to the

8

disciplinary authority's decision that It was not reasonably prac-

ticable to hold the inquiry is not binding upon the coun. The

coon will also examine I.he charge of ma/a fides, if any, made

1n the writ· petition. In examining the relevancy of the reasons,

the court will consider the situation which according lo the

disciplinary authority made

it come lo the conclusion that it

c was not reasonably practicable to hold the inquiry.

If the court

finds that the reasons are irrelevant, then the recording or its

satisfaction by the disciplinary authority would be an abuse or

power conferred upon it by clause (b ) •.... ;"

D

35. If the intendment is to exclude the jurisdiction of the superior

Courts, the langugage would quite obviously have been different. Even so,

where such exclusion

is sought to be effected by

an·amendment the further

question whether such an amendment would be destructive of a basic

feature or the Constitution would arise. But comparison of the language

in

Article 363(1)

would bring out in contrast the kind of language that may

E be necessary lo achieve any such purpose.

In Brnndaba11 Nayak v. E/ectio11 Commissio11 of India & A11r., (1965)

3 SCR 53, in spite of finality allached by Article 192 lo the decision of the

Governor

in respect of disqualification

incurred· by a member or a. Staie

F

Legislature subsequent to the election, the mailer was examined by this

Court on an appeal

by

special leave under Article 136 of the Constitutiort -

>

against the decision of the High Court dismissing the writ petition filed

under Article 226 of the ConstitulioIL Similarly in U11io11 of /11dia v. Jyoti

Prakas/1 Miller, [1971[ 3 SCR 483, in spite of finality attached lo the order

G

of the President with regard to the determination of age of a Judge of the

High Court under Article 217 (3) of the Constitution, this Court examined

the legality of the order pa"cd by the President during the pendency of

an appeal filed under Article 1'6 or ihe Constitution.

There

is authority against the acceptability of the argument that the

H word "final" occurring in Paragraph 6(1) has the effect of excluding the

-~

KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.) 759

jurisdiction of the Courts in Articles 136, 226 and 227. A

36. The cognate questions are whether a dispute of the kind en-

visaged

by

Paragraph 6 of the Tenth Schedule is in a non-justiciable area

and that, at all events, the fiction

in

Paragraph 6(2) that all proceedings

under Paragraph 6(1) of the Tenth Schedule be deemed to be "proceedings

B

in Parliament" or "Proceedings in the Legislature of a State" attracts

immunity from the scrutiny by Courts

as under Article 122 or 212, as the

case may be.

-~

Implicit in the first of these postulates is the premise that questions

of disqualification of members of the House are essentially matters per-

c

taining to the Constitution of the House and, therefore, the Legislature is

entitled to exert its exclusive power to the exclusion of the judicial power.

This assumption

is based on certain British legislature practices of the past

in an area which is an impalpable congeries of legal rules and conventions

peculiar to

·and characteristic of British Parliamentary traditions. Indeed,

D the idea appears to have started with the proposition that the Constitution

lllllt

of the House was itself a matter of privilege of the House. Halsbury

contains this statement:

./

~

"1493, Privilege of the House of Commons in relation lo its

constitution: In addition to possessing a complete control over

E

the regulation of its own proceedings and the conduct of its

members,

the House of

Co111111011s claims the exclusive rig/it of

providing, .as it nzay deeni fit, for its own proper constitution."

't-

(emphasis supplied)

, ; F

(See: Halsbury's Laws of England, 4th· Edn. Vol. 34 pages 603

& 604)

But in the Indian Constitutional dispensation the power to decide a

disputed disqualification of an elected member of the House

is not treated

G

as a matter of privilege and the

power to resolve such electoral disputes is

clearly judicial and not legislative in nature. The fact that election disputes

'

'were at some stage decided by the House of Commons itself was not·

'

conclusive that even their power was legislative. The controversy, if any, in

"'

this area is. put at rest by the authoritative earlier pronouncements of this

Court.

H

760 SUPREME COURT REPORTs (1992) 1 S.C.R.

A 37. In Indira Nehru Gandhi v. Raj Narain, (1976) 2.SCR 347 Beg J.,

B

c

D

referring to the historical background relating to the resolution of electoral

disputes

by the House of Commons said:

"I do not think that it is possible to contend, by resorting to

some concept of a .succession to the powers of the medieval

"High Court of Parliament" in England, that a judicial power

alSo devolved upon our Parliament through the Constituent

Assembly, mentioned in Sec. 8 of the Indian Independence Act

of 1947. As already indicated by me, the Constituent Assembly

was invest~d with law making and not judicial powers.

Whatever judicial power may have been possessed once by

English kings, sitting in Parliament, constituting the highest

Court of the realm in medieval England, have devolved solely

on the House of Lords as the final court of appeal in England.

"King in Parliament" had ceased to exercise judicial powers in

any other way long before 1950. And, the House of Commons

had certainly not exercised a jucjicial power as a successpr to

the <>ne time jurisdiction of the "King in Parliament" with the

possible exc;eption of the power to punish for its contempts ...... "

(p. 627 & 628)

In the same case, Justice Mathew made these observations as to the

E Imperative judicial nature of the power to resolve disputes:

"The concept of democracy as visualised by the Constitution

presupposes

the representation of the people in

Parliament and

· State Legislatures by the method of election. And, before an

election machinery can be brought into operation, there are -4

'··

F

three requisites which require to be attended lo, namely, 0) > '

there should be a set of laws and rules making provisions with

respect to all matters relating to, or in connection with, elec-

tions, and it should be decided as to how these laws and rules

. are to be made; (2) there should be an executive charged with

G

the duty of securing the due conduct of elections; and {3) there

should be a judicial tribunal to deal with disputes arisi11g out of

or in connection with elections ..... "

(p.504)

H "In whichever body or authority, the jurisdiction, is vested, the

-~

....

KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 761

exercise of the jurisdiction must be judicial in character. 171is A

court has held that in adjudicating an election dispute an

authority is peifonning a judicial function and a petition for leave

to appeal under Article 136 of the Constitution would lie to this

Court against the decision notwithstanding the provisions of Ar-

ticle 329(b ). "

(emphasis supplied)

[p. 506]

It is also .useful to recall the following observations of Gajendragadkar

B

J ., on rhe scope of Article 194(3) of the Constitution, which is analogous C

to Article 105(3) in Special Reference No.1 of 1964 [1965] 1 SCR 413: ·

"This clause requires that the powers, privileges and immunities

which are claimed

by the House must be shown to have sub­

sisted at the commencement

of the Constitution, i.e., on

January 26,

1950. It is.well-known that out of a large number D

of privileges and powers which the House of Commons claimed

during the days

of its bitter struggle for recognition, some were

given up

in course of time, and some virtually faded out by

desuetude; and

~o, in every case where a power is claimed, it

is necessary to enquire whether it was an existing power at the E

relevant &ime, It must also appear that the said power was not

only claimed

by the House of Commons, but was recognised

by the English Courts.

It would obviously be idle to contend

that if a particular power which.

is claimed by the House was

claimed

by the House of Commons but was not recognised by

the English Courts, it would still be upheld under the latter F

part of clause (3) only on the ground.that it was in fact claimed

by the House of Commons. In otherwords, the inquiry which

is prescribed by this clause is: is the power in question shown

or proved to have subsisted in the

House'of Commons at the

relevant time?" G

(See page 442)

This question

is answered by Beg, J. in Indira Nehm Gandhi's case: "1 think, at the time our Constitution was framed, the decisipn H

A

B

c

D

E

F

G

H

762

SUPREME COURT REPORTS [1992] 1 S.C.R.

of an election dispute had ceased to be a privilege of the House

of Commons in England and therefore, under Article 105(3),

it could not be a privilege of Parliament in this country."

[p.505]

38. Indeed, in dealing with the disqualifications and the resolution of

disputes relating to them under Article.s

191 and 192 or Article

102 and

103, as the case may be, the Constitution has evinced a clear intention to

resolve electoral-disputes by resort to the judicial power of the State.

Indeed, Justice Khanna in

Indira

Nehrn Gandhi's case said:

"Not much argument is needed to show that unless there be a

machinery

fOT resolving an election dispute and for going into

the allegations that elections were not free and fair being

vitiated

by malpractices, the provision that a canadate should

not resort to. malpractices would be in the nature of a mere

pious

wish without any legal sanction. It is further plain that if

the validity of the election declared to be valid

only if we

provide a forum for going into those grounds and prescribe a

law for adjudicating upon those grounds; ....

" (See page 468)

It is, therefore, inappropriate to claim that the deter'?'inative juris-.

diction of the Speaker or the Chairman in the Tenth Schedule

is not a

judicial power and

is within the non-justiciable legislative area. The classic

exposition of Justice Issacs J.,

in Australian Boot Trade Employees Federa­

tion v. Whybrow & Co., [1910] 10 CLR 226 at page 317, as to what

distinguishes a judicial power from a legislative power was referred to with

the approval of this Court in

Express Newspaper Ltd. v.

Union of India, AIR

1958 SC 578 at 611. Issacs J ., stated:

"If the dispute is as to the relativedghts of parties as they rest

on past or present circumstances, the award

is in the nature of

a judgment, whicli might have been the decree of an ordinary

jur!icial tribunal acting under the ordinary judicial power. There

the

law applicable to the case must be observed. If, however,

the dispute

is as to what shall in the future be the mutual rights

and responsibilities of the

parties-in other words, if no present

rights are asserted or denied, but a future rule of conduct

is to

be prescribed, thus creating new rights and obligations, with

' '

KIHOTO HOLLORAN v. ZACHILLHU [VENKATACHAL!AH, J.J 763

sanctions for non-conformity then the determination that so A

prescribes, call it an award, or arbitration, determination, or

decision or what you will, is essentially of a legislative character,

and limited only

by the law which authorises it. If, again,

there

are neither present rights asserted, nor a future rule of conduct

prescribed, but merely a fact ascertained necessary for the

practical effectuation of admitted rights, the proceeding,

though called an arbitration,

is rather in the nature of an

appraisement or ministerial

act."

In. the present case, the power to decide disputed disqualification

B

under Paragraph 6(1) is preeminently of a judicial complexion. C

39. The fiction in Paragraph 6(2), indeed, places it in the first clause

of Article

122 or 212, as the case may be. The words

"proceedings in

Parliament" or "proceedings in the legislature of a State" in Paragraph 6(2)

have their corresponding expression

in Articles 122(1) and 212(1) respec-

tively. This attracts an immunity from mere irregularities of procedures. D

That apart, even after

1986 when the Tenth Schedule was introduced,

the Constitution did not evince

&ny intention to invoke Article 122 or 212

in the conduct of resolution of disputes as to the disqualification of

members under Articles 191(1) and 102(1). The very deeming provision

implies that

the proceedings of disqualification are, in fact, not before the

House; but

only before the

Speaker as 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.

40. But then is the Speaker or the Chairman acting under Paragraph

E

F

6(1) is a Tribunal ? "All tribunals are not courts, though all Courts are

Tribunals". The word "Courts" i£ used to designate those Tribunals which G

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.

See: Harinagar Sugar Mills H

764 SUPREME COURT REPORTS [1992] 1 S.C.R.

A Ltd. v. Shyam Sunder Jhunjhunwala & Ors., [1962] 2 SCR 339. In that case

Hidayatullah, J. said:

B

c

D

" ..... By "courts" is meant courts of civil judicature and by

"tribunals'', those bodies of men who are appointed to decide

controversies arising under certain special

laws. Among the

powers of the State

is included the power to decide such

controversies. This

is undoubtedly one of the attributes of the

State and is aptly called the judicial power of the State. In the

exercise of this power, a clear division

is thus noticeable.

Broadly speaking, certain special matters

go before tribunals,

and the residue goes before the ordinary courts of

civil judica­

ture. Their procedures

may differ, but the functions are not

essentially different. What distinguishes them has never been

successfully established. Lord Stamp said that the real distinc­

tion

is that the courts have

"an air of detachment". But this is

more a matter of age and tradition and is not of the essence.

Many tribunals,

in recent years, have acquitted themselves so

well and with such detachment as to make this test

insufficient."

[p. 362]

E 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 a exercise of judicial power. That authority is called a Tribunal,

if

it does not have all the trappings of a Court. In Associated Cement

Compa11ies Ltd. v. P.N.

Shanna and Anr., [1965] 2 SCR 366, this Court said:

F

G

H

" ..... The main and the basic test, however, is whether the

adjudicating power which a particular authority

is empowered

to exercise, has been conferred on

it by a statute and can be

described

as a part of the

State's inherent power exercised in

discharging its judicial function. Applying this test, there can

be no doubt that the power which the State Government

exercises under R.6(5) and

R. 6(6) is a part of the State's

judicial power

..... There is, in that sense, a lis; there is affirma­

tion

by one party and denial by another, and the dispute

necessarily involves the rights and obligations of the parties to

it. The order which the State Government ultimately passes is

,.. "

---'

~

) '

KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.) 765

described as its decision and It is made final and.binding ...... " A

(p. 386 and 387)

By these well-known and accepted tests of what constitute a

Tribunal, the Speaker or the Chairman, acting under paragraph 6(1) of the

Tenth Schedule is a Tribunal.

•

41. In the operative conclusions we pronounced on 12th November,

B

1991.we indicated in clauses G and H therein that judicial review in the

area

is limited in the manner indicated. If the adjudicatory authority is a

tribunal,

as indeed we have held it to be, why, then, should its scope be so C

lim~ed? The finality clause in paragraph 6 does not completely exclude the

jurisdiction of the courts under Articles

136, 226 and 227 of the

Constitu­

tion. But it does have the effect of limiting the scope of the jurisdiction .

. 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 D

challenge is ultra vires the powers conferred on the said authority.

Such 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 ma/a fides or is

tolourable exercise of power'

based on extraneous and irrelevant considerations. While exercising their E

certio,rari jurisdiction, the courts have applied the' test whether the im­

pugned action falls within the jurisdiction of the authority taking the action

or it

falls outside such jurisdiction. 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

F

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.

An ouster clause attaching finality to a determination, therefore, does oust

certiorari to some extent and

it will be effective in ousting the power of the

court to review the decision of an inferior tribunal

by certiorari if the

inferior tribunal has not acted without jurisdiction and has merely made an

G

error of law which does not affect its jurisdiction and if its decision is not

a nullity for some reason such

as breach of rule of natural justice.

See :

Administrative Law

by H. W.R. Wade, 6th Edn., pp. 724-726; Anisminic

Ltd. v. Foreign Compensation Commission, (1969) 2

AC 147; S.E. Asia Fire

Bricks v. Non-Metallic Products, (1981) A.C. 363. H '

A

B

766 SUPREME COURT REPORTS [1992) 1 S.C.R.

In Mak/ion Singh v. Siate of Punjab, [1964] 4 SCR 797, while con­

sidering the scope

of judicial review during the operation of an order

passed

by the

President under Article 359 (1) suspending the fundamental

right guaranteed under Article

21 of the Constitution, it has been held that

the said order did not preclude the High Court entertaining a petition

under Article

226 of the Constitution where a detenu had been detained

in violation of the mandatory provisions of the detention law or where the

detention has been ordered

ma/a fide. It was emphasised that the exercise

of a power ma/a fide was wholly outside the scope of

the· Act conferring

the power and can always be successfully challenged. (p.

828)

C Similarly in State of Rajasthan v.

Union of India, [1978) 1 SCR 1,

decided by a seven-judge Bench, this Court was considering the challenge

to the validity

of a proclamation

issued by the President of India under

Article

356 of the Constitution. At the relevant time under Clause (5) of

Article

356, the satisfaction of the President mentioned in clause (1) was

D final and conclusive and it could not .be questioned in any court on any

ground. All the learned judges

have expressed the view that the proclama­

tion could be open to challenge if

it is vitiated by ma/a

[Ides. While taking

this

view, some of the learned judges have made express reference to the

provisions of clause

(5).

E In this context, Bhagwati, J (as the learned Chief Justice then was)

F

G

H

speaking for himself and

A.C. Gupta, J. has stated:

"Of course by reason of cl. (5) of Art. 356, the satisfaction of

the President is final and conclusive and cannot be assailed on

any ground but this immunity

from attack cannot apply where

the challenge

is not that the satisfaction is improper or unjus­

tified, but that there

is no satisfaction at all. In such a case it

is not the satisfaction arrived at by the President which is

challenged, but the existence of the satisfaction itself. Take, for

example, a case where the President gives the reason for taking

action under Art.

356, cl. (1) and says that he is doing so,

because the Chief Minister of the

State is below five feet in

height and, therefore, in his opinion a situation has arisen where

the Government

of the

State cannot be carried on in accord­

ance with the provisions of the Constitution. Can the so called

satisfaction of the President in such a case not be challenged

KIHOTO HOLLO HAN v. ZACHILLHU [VENKATACHALIAH, J.] 767

,.. ---<

on the ground that it is absurd or perverse or ma/a fide or based A

on a wholly extraneous and irrelevant ground and is, therefore,

no satisfaction at all." (pp. 82-83)

'Untwalia, J. has held as follows:

"I, however, must hasten to add that I cannot persuade myself B

to subscribe to the view that under no circumstances an order

of proclamation made by the President under Article

356 can

be challenged

in a Court of Law. And, I am saying

so· not-

-_.,.

withstanding the provision contained in clause. (5) of the said

Article introduced

by the Constitution (38th Amendment) Act,

c

1975." (p. 94)

"But then, what did I mean by saying that a situation may arise

in a given case where the jurisdiction of the Court is not

completely ousted

? I mean this. If, without entering into the

prohibited area, remaining

on the fence, almost on the face of D

the impugned order or the threatened action of the President

it is reasonably possible to say that in the eye of law it is no

order or action

as it is in flagrant violation of the very words

of a particular Article, justifying the conclusion that the order

is ultra vires, wholly illegal or passed ma/a fide, in such a

E

situation it will be tentamount in

law to be no order at all. Then

this Court is not powerless to interfere with such an order and

may, rather, must strike it down." (p. 95)

Similarly, Fazal Ali,

J. has held :

"- F

) .

"Even if an issue is not justiciable, if the circumstances relied

upon by the executive authority are absolutely extraneous and

irrelevant, the Courts have the undoubted power

to scrutinise

such an exercise of the executive power. Such a judicial scrutiny

is one which comes

in~o operation when the exercise of the

G

executive power is colourable or ma/a fide and based on ex-

traneous or irrelevant considerations." (p. 116)

"It is true that while an order passed by the President under

-.. Article 356 is put beyond judicial scrutiny by cl. (5) of Art. 356,

but this does not mean that the Court possesses no jurisdiction H

768 SUPREME COURT REPORTS (1992) 1 S.C.R.

:>---_...

A in the matter at all. Even in respect of cl. (5) of Art. 356, the

Courts

have a limited sphere of operation in that on the reasons

given by the

President in his. order if the Courts fmd that they /

are absolutely extraneous and irrelevant and based on personal

and

illegal considerations the Courts are not powerless to strike

B

down the order on the ground of ma/a fide if proved." (p. 120)

In Union of India v. Jyoti Prakash Mitter (supra); dealing with the

decision of the President under Article 217 (3) on th6 question as to the

age of a: judge of the High Court, requiring a judicial approach it was held

that the field of judicial review was enlarged to cover violation of rules of

,.,

c

natural justice as well as an order based on no evidence because such

· errors are errqrs of jurisdiction.

In Union of India & Anr. v. Tulsirom Patel & Ors. {supra) this Court

. w~ dealing with Article 311 {3) of the Constitution which attaches finality

to the order of the disciplinary authority on the question whether it was

D reasonably practicable to hold an iitquiry. It was observed that though the '

'finality' clause did

not bar jurisdiction it did indicate that the jurisdiction

is limited to certain grades.

In the light of the decisions referred to above and the nature of

E

function that is exercised by the Speaker/Chairman under paragraph

6~ 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, ma/a fides, non-compliance with rules

of natural justice and perversity.

F .....

In view of the limited scope of judicial review that is available on • '

account of the finality clause in paragraph 6 and also having regard to the

constitutional intendmcnt and the status of the repository of the ad-

judicatory power i.e. Speaker/Chairman, judicial review cannot be available

G

at a stage prior to the making of a decision by the Sp.eaker/Chairman and

a q11ia timet action would not be permissible. Nor would interference be

permissible at an interlocutory stage of the proceedings. Exception will,

however, have to be made in respect of cases where disqualification or

suspension'

is imposed during the pendency of the proceedings and such

disqualification or suspension is likely to have grave, immediate and irre-

~ .

H versible repurcussions and consequence.

._,..,

'-;.

)~

•

--

KIHOTO HOLLORAN v. ZACHILLHU (VRNKATACHALIAH, J.) 769

42. In the result, we hold on contentions E and F :

That the Tenth Schedule does not, in providing for an addi­

tional grant for disqualification and for adjudication of disputed

disqualifications, seek to create a nonjusticiable constitutional

area. The power to resolve such disputes vested

in the Speaker

or Chairman

is a judicial power.

That

Paragraph 6(1) of the Tenth Schedule, to the extent ,it

seeks to impart finality to the decision of the Speakers/Chair-

men

is valid. But the concept of statutory finality embodied in Paragraph 6(1) 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 consitutional man-

dates,

ma/a fides, non-compliance with Rules of Natural Justice

and perversity, are concerned.

That the deeming

provisioll in Paragraph 6(2) of the Tenth

Schedule attracts an immunity analogous to that in Articles

122(

1) and 212( 1) of the Constitution as understood and ex-

plained in Keshav

Sing/i's Case Sp!. Ref. No. 1, [1965) 1 SCR

413, to protect the validity of proceedings from mere ir-

regularities of procedure. The deeming provision, having

regard to the words "be deemed to be proceedings in Parlia-

ment" or "proceedings in the Legislature of a State" confines

the scope of the fiction accordingly.

The Speakers/Chairmen

while exercising powers and discharg-

ing

functions-under the Tenth Schedule act as Tribunal ad-

judicating rights and obligations under the Tenth Schedule and

their decisions in that capacity are amenable to judicial

review.

However, having regard to the Constitutional Schedule 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 inter~

ference being cases of interlocutory disqualifications or suspen-

sions which may have grave, immediate and irreversible

A

B

c

D

E

F

G

H

A

'770 SUPREME COURT REPORTS [1992] 1 S.C.R.

repurcussions and consequence.

43. Re ; Contention (G) :

The argument

is that an independent

adjudicatory machinery for

resolution ofelectoral disputes is an essential incident of democracy, which

B is a basic feature of Indian constitutionalism. It is urged that investiture of

the power of resolving such disputes in the Speaker or the Chairman does

not answer this test of an independent, impartial quality of the adjudicatory

machinery.

It is, therefore, urged that Paragraph 6(1) of the Tenth

Schedule

is violative of a basic feature.

c

It is also urged that a Speaker, under the Indian Parliamentary

tradition

is not required to resign his membership of the political party on

whose strength he gets elected and that inevitably the decision of the

Speaker is not free from the tugs and pulls of political polarisations. It is

urged that the Speaker who has not resigned his membership of the

D political party cannot be impartial and, at

all events, his functioning will

not be free from reasonable likelihood of bias.

E

44. The Tenth Schedule breaks away from the constitutional pattern

for resolution

of disqualifications envisaged in Articles

103 and 192 of the

Constitution which· vest jurisdiction in this behalf in the President or the

Governor acting according to the opinion of Election Commission. The

disqualifications for defection could

very well have been included in Article

102(1) or 191(1) as a ground, additional to the already existing grounds

under clauses (a)

to (e) in which event, the same dispute resolution

machinery would have dealt with the disqualifications for defections also.

F But the Tenth Schedule, apparently, attempted a different experiment

in

respect of this particular ground of disqualification.

45. The question is, whether the investiture of the determinative

juris­

diction in the Speaker would by itself stand vitiated as denying the idea of an

independent adjudicatory authority.

We are afraid the criticism that the

G provision incurs the vice of unconstitutionality ignores the high status and

importance of the office of the Speaker

in a Parliamentary democracy. The

office of the Speaker

is held in the highest respect and esteem in

Parliamen­

tary traditions. The evolution of the institution of Parliamentary democracy

has

as its pivot the institution

~f the Speaker. 'The Speaker holds a high,

H important and ceremonial office. All questions of the well being of the House

--~

KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALWI, J.] 771

are matters of Speaker's concern'. The Speaker is said to be the very embodi- A

ment of propriety and impartiality. He performs wide ranging functions in­

cluding the performance of important functions of a judicial character.

Mavalankar, who

was himself a distinguished occupant of that high

office, says : "In parliamentary democracy, the office of the Speaker is held

in very high esteem and respect. There are many reasons for

this. Some of them are purely historical and some are inherent

B

in the concept of parliamentary democracy and the powers and

duties of the Speaker. ·Once a person is elected Speaker, he is C

expected to be above parties, above politics. In other words, he

belongs to

all the members or belongs to none. He holds the

scales

of justice evenly irrespective of party

o_r person, though

no one expects that he

will do absolute justice in all matters;

because, as a human being he has his human drawbacks and

shortcomings. However, everybody knows that

he will intention-D

ally do no injustice or show partiality.

"Such a person is natural-

ly held in respect by all."

[See : G.V. Mavalankar : The Office of Speaker, Journal of

Parliamentary Information, April

1956, Vol. 2, No. 1, p.33)

Pandit Nehru referring to the office of the Speak er said :

" ........ The speaker represents the House. He represents the

dignity

of the House, the freedom of the House and because

the House represents the nation,

in a. particular way, the

Speaker becomes the symbol

of the nation's freedom

and liberty.

Therefore, it is right th1t that should be an honoured position,

a free position and

should be occupied always by

men of

outstanding ability and impaniality."

[See : HOP. Deb. Vol. IX (1954), CC 3447-48)

Referring to the Speaker, Erskine may says :

"The Chief characteristics attaching to the office of Speaker in

E

F

G

the House of Commons are authority and impaniality. As a

symbol of

his authority he is accompanied by the Royal Mace H

772

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c

D

SUPREME COURT REPORTS [1992] 1 S.C.R.

which is borne before him when entering and leaving the

chamber and upon state occasions by the Serjeant at Arms

attending the House of Commons, and

is placed upon the table

when

he is in the chair. In debate all speeches are addressed

to

him and he calls upon Members to speak

-a choice which

is not open to dispute. When he rises to preserve order or to

give a ruling on a doubtful point he must always be heard in

silence and no Member may stand when the Speaker is on his

feet. Reflections upon the character or actions of the Speaker

may be punished as breaches of privilege. His action cannot be

criticised incidentally in debate or upon any form of proceeding

except a substantive motion. His authority

in the chair is for­

tified by many special powers which are referred to below.

Confidence

in the impartiality of the Speaker

Is an indispen­

sable condition of the successful working of procedure, and

many conventions exist which

have as their object not only to

ensure the impartiality of the

Speaker but also to ensure that

' his impartiality is generally recognised ...... "

[See : Erskine May -Parliamentary Practice -20th edition p.

' 234 and 235]

•

E M.N. Kaul and S.L. Shakdher in 'Practice and procedure of

F

G

Parliament' 4th Edition, say :

' "The all important ·conventional and ceremonial head of Lok

Sabha is the Speaker. Within the walls of the House his

authority

is supreme. This authority is based on the

Speaker's

absolute and unvarying impartiality -the main feature of the

office, the

law of its life. The obligation of impartiality appears

in the constitutional provision which ordains that the Speaker

is entitled to vote only in the case of equality of

•votes.

Moreover, his impartiality within the House is secured by the

f;ict that he remains above all considerations of party or politi­

cal career, and to that effect he

may also resign from the party

to which he

belonged."

[p. 104]

H 46. It would, indeed, be unfair to the high traditions of that great

•

' --'

KIHOTO HOLWHAN v. ZACffiLLHU [VENKATACHALlAH, J.] 773

office to say that the investituri; in it of this jurisdiction would be vitiated A

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.

B

47. Accordingly, the contention that the vesting of adjudicatory

func­

tions in the Speakers/Chairmen would by itself vitiate the provision on the

ground · of likelihood of political bias is unsound and is rejected. The

Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary

democracy and are guardians of the rights and privileges of the House. C

They are expected to and do take far reaching decisions iii the functioning

of Parliamentary democracy. Vestiture of power of adjudicate questions

under the Tenth Schedule in such a constitutional functionaries should not

. .

.be considered exceptionable.

48. Re : Contention H :

In lhe view we take of the validity of paragraph 7 it is unnecessary

to pronounce on the contention whether judicial review

is a basic feature

of the Constitution and paragraph 7 of the Tenth

Schedule violates such

basic structure.

49. We may now notice one other contention as to the construction

of the expression 'any direction'

occurrin,g in paragraph 2(1)(b). It is

argued that if the expression really attracts within its sweep every direction

D

E

or whip of any kind whatsoever it might be unduly restrictive of the

freedom of speech and the right of dissent and that, therefore, should be

F

given a meaning limited to the objects and purposes of the Tenth

Schedul~.

Learned counsel relied upon and commended to us the view taken by the

minority in the Full Bench decision of Punjab and Haryana High Court in

Patkash Singh Badal & Ors. v. Union of India & Ors., [AIR 1987 Punjab

and Haryana 263) where such a restricted sense was approved. Tewatia J. G

said:

"If the expression : "any direction" is to be literally construed

then

it would make the people's representative a wholly

politi­

cal party's representative, which decidedly he is not. The Mem-

ber would virtually lose his identity and would become a rubber

H

774

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B

c

D

E

F

G

SUPREME COURT REPORTS (1992] 1 S.C.R.

stamp in the hands of his political party. Such interpretation of

this provision would cost it, its constitutionality, for in that sense

it would become destructive of democracy/parliamentary

democracy, which is the basic feature of the Constitution. Where

giving of narrow meaning and reading doWI) of the provision

can save it from the

vice of unconstitutionality the

Court should

read it down particularly when

it brings the provision in line

with the avowed legislative intent ..............

"

" ................ the purpose of enacting paragraph_ 2 could be no

other than to insure stability of the democratic system, which

in the context of Cabinet/Parliamentary form of Government

on the one hand means that a political party or a coalition of

political parties

which has been voted to power, is entitled to

govern till the next election, and on the other, that opposition

has a right to censure the functioning of the Government and

even overthrow

it by voting it out of power if it had lost the

confidence of the people, then voting or abstaining from voting

by a Me.mber contrary to any direction issued by his party would

by necessary implication envisage voting or abstaining from

voting in regard to a motion or proposal, which if failed,

as a

result of lack or requisite support

in the House, would result

in voting the Government out of power, which consequence

necessarily

follows due to well established constitutional con­

vention only when either a motion of no confidence

is passed

by the House or it approves a cut-motion in budgetary grants.

Former because of the implications of

Article 75(3) of the

Constitution and latter because no Government can function

without money and when Parliament declines to sanction

money, then it amounts to an expression of lack of confidence

in the Government. When so interpreted the clause (b) of sub­

paragraph

(1) of paragraph 2 would leave the Members free

to vote according to their

views in the House in regard to any

other matter that comes

up before

it"

[p. 313 & 314]

The reasoning of the learned judge tl:!at a wider meaning of the words

H "any direction" would 'cost it its cons.titutionality' does not commend to us.

~-­

• "ff;:.

I

•

)"'·

'

KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 775

But we approve the conclusion that these words require to be construed A

harmoniously with the other provisions and appropriately confined to the

objects and purposes of the Tenth 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 becuase

such a construction

is a harmonious construction in the context. There is

B

no justification to give the words the wider meaning.

While construing

Paragraph 2(1)(b) it cannot be ignored that 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 C '

regulating the Procedure of the House [Art. 105(1) and Art. 194(1)]. The

disqualification imposed

by

Paragraph 2( I) (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 D

Schedule,

namely, to curb the

e\il or mischief of political de,fections

motivated

by the lure of office or other similar considerations. The said

object would be achieved if the disqualification incurred on the ground of

voting or abstaining from voting

by a member is confined to cases where a

change of Government

is likely to be brought about or is prevented, as the

case

may be, as a result of such voting or

~bstinence or when such voting E

or abstine~ce is on a matter which was a major policy and programme on

which the political party to which the member belongs went to the polls.

For this purpose the direction given

by the political party to a member

belonging

to it, the violation of which may entail disqualificatiort under

Paragraph 2(1Hb), would have to be limited to a vote on motion of F

confidence or no confidence in the Government or where the motion under

consideration relates to a matter which \Vas an integral policy and .

programme of the political party on the basis of which it approached the

elaborate. The voting or abstinence from voting

by a member against the

direction

by the political party on such a motion would amount to disap­

proval of the programme of the basis of which

he went before the elec- G

torate and got himself elected and

such voting or abstinence would amount

to a breach of the trust reposed in him

by the electorate.

Keeping

in view

the consequences of the disqualification i.e., ter­

mination of the membership of a House;

it would be appropriate that the H

776 SUPREME COURT REPORTS (1992] 1 S.C.R.

A direction or whip which results in such disqualification under Paragraph

2(1)(b) is so worded as to clearly indicate that voting or abstaining from

voting contrary to the said direction would result

in incurring the

dis­

qualification under Paragraph 2(1)(b) of the Tenth Schedule so that th.e

member concerned has fore-knowledge of the consequences flowing from

B

his conduct in voting or abstaining from voting contrary to such a direction.

50. There arc some submissions as to the exact import of a "split· -

whether

it is to be understood an instantaneous, one time event or whether

a

"split" can be said to occur over a period of time. The hypothetical poser

was that if one-third of the members of a political party in the legislature

C broke-away from it on a particular day and a few m1>re members joined

the spliter group a couple of days later, would the latter also

be a part of

the

"split" group. This question of construction cannot be in vaccuo. In the

. present cases,

we have dealt principally with constitutional issues. The

meaning to

be given to

"split" must necessarily be examined in a case in

D which the question arises in the context of its particular facts. No hypotheti­

cal predications can or need be made. We, accordingly, leave this question

open to be decided in an appropriate case.

E

F

51. Before parting with the case, we should advert to one other cir­

cumstance. During the interlocutory stage, the constitution bench was per­

suaded to make certain interlocutory orders which, addressed as they were

to the Speaker of the House, (though,

in a different capacity as an

ad­

judicatory forum under the Tenth Schedule) engendered complaints of dis­

obedience culminating in the filing of petitions for initiation of proceedings

of contempt against the Speaker. It

was submitted that when the very

ques­

tion of jurisdiction of the Court to deal with the matter was raised and even

before the constitutionality of Paragraph 7 had been pronounced upon, self

restraint required that

no interlocutory orders in a sensitive area of the

relationship between the legislature and the Courts should been made.

The purpose of interlocutory orders

is to preserve in status-quo the

G rights of the parties, so that, the

proceeding~ do not become infructuous

by any unilateral overt acts by one side or the other during its pendency .

. One of the contentions urged was as to the invalidity of the amendment

for non-compliance with the proviso to Article 368(2) of the Constitution.

It has now been unanimously held that Paragraph 7 attracted the proviso

H to article 368(2). The interlocutory orders in this case were necessarily

K!HOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 777

justified so that, no land-slide changes were allowed to occur rendering the A

proceedings ineffective and infructuous.

52. With the finding and observations as aforesaid W.P. No. 17_ of

1991 is dismissed. Writ petition in Rule No. 2421of1990 in the High Court

of Gauhati is remitted back to the High Court for disposal in accordance

with law and not inconsistent with the findings and observations contained

in this order.

VERMA, J. : This matter relating to disqualification on the ground

of defection of s.ome members of the Nagaland Legislative Assembly under

B

the Tenth Schedule inserted by the Constitution (Fifty-Second Amend- C

ment) Act, 1985, was heard along with some other similar matters relating

to several Legislative Assemblies including those of Manipur, Meghalaya,

Madhya

Pradesh, Gujarat and Goa, since all of them involved the decision

of certain constitutional questions relating to the constitutional validity of

para 7 of the Tenth Schedule and consequently the validity of the Constitu-

D

lion (Fifty-Second Amendment) Act, 1985 itself. At the hearing, several

learned counsel addressed us on account of which the hearing obviously

took some time. Even during the course

of the hearing, the actions of some

Speakers tended to alter the

slants

quo, in some cases resulting in irre­

versible consequences which could not be corrected in the event

of para 7

of the Tenth Schedule being held invalid or the impugned orders of the E

Speakers being found justiciable and, on merits illegal and, therefore, the

urgency increased of deciding the questions debated before

us at the

earliest. For this reason,

we indicated during the course of the hearing that

we would pronounce our operative conclusions soon after conclusion

o~

the hearing with reasons therefor to follow. Accordingly, on conclusion of F

the hearing on November 1, 1991, we indicated that the operative con­

clusions would be pronounced

by us at the next sitting of the Bench when

it assembled on November

12, 1991 after the Diwali Vacation. The opera-

tive

·conclusions of the majority (Venkatachaliah, Reddy and Agrawal, JJ.)

as well as

of the minority (Lalit Mohan Sharma and

.l.S. Verma, J.T.) were

thus pronounced on November

12, 1991. We

are nc.w indicating herein our G

reasons for the operative conclusions of the minority view.

The unanimous opinion according to the n1aj1..1rit~ as \i'cll :1" thl:

minority is that para 7 qf the Tenth Schedule enact~ J pru isio11 1, ir

. complete exclusion of judicial review including the ju1 j,dic1 ion of the H

778 SUPREME COURT REPORTS· [1992] 1 S.C.R.

A Supreme Court under Article 136 and of the High Courts under Articles

226 and 227 of the Constitution and, therefore, it makes in term,. and in

effect a change

in Articles 136, 226 and 227 of the Constitution which

attracts the proviso to clause (2) of Article

368 of the Constitution; and,

therefore, ratification

by the specified number of

State Legislatures before

B

the Bill was presented to the President for his assent was necessary, in

accordance therewith. The majority

view is that in the absence of such

ratification

by the

State Legislatures, it is para 7 ·alone of the Tenth

Schedule which

is unconstitutional; and it being severable from the remain­

ing part

of the Tenth

Schedule, para 7 alone is liable to be struck down

rendering the Speakers' decision under para 6 that of a judicial tribunal

C amenable to judicial review by the Supreme Court and the High Courts

under Articles

136, 226 and 227. The minority opinion is that the effect of

invalidity of para 7 of the Tenth Schedule is to invalidate the entire

Constitution (Fifty-Second Amendment) Act,

1985 which inserted the

Tenth Schedule since the President's assent to the Bill without prior

D ratification by the

State Legislatures is non est. The minority view also is

that para 7 is not severable from the remaining part of the Tenth Schedule

and the Speaker not being an independent adjudicatory authority for this

purpose as contemplated

by a basic feature of democracy, the remaining

part of the Tenth

Schedule is in excess of the amending powers being

E

F

G

H

violative of a basic feature of the Constitution. In the minortity opinion, we

have held that the entire Constitution (Fifty-Second Amendment) Act,

1985 is unconstitutional and an abortive attempt to make the Constitutional

Amendment indicated therein.

Before proceeding to

give our detailed reasons, we reproduce the

operative conclusions pronounced

by us on November 12, 1991 in the

minority opinion (Lalit Mohan Sharma and

J.S. Verma, JJ.) as under:

"For the reasons to be given in our detailed judgment to follow,

our operative conclusions in the minority opinion on the various

constitutional issues are as follows :

1. Para 7 of the Tenth Schedule, in clear terms and in effect,

excludes the jurisdiction of all courts, il)cluding the Supreme

Court under Article 136 and the High Courts under Articles

226 and 227 to entertain any challenge to the decision under

para 6 on any ground even of illegality or perversity, not only

-<--

..

' '

KIHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 779

at an interim stage but also after the final decision on the A

question of disqualification on the ground of defection.

2. Para 7 of the Tenth Schedule, therefore, in terms and in

effect, makes a change in Article 136 in Chapter IV of Part V;

and Articles 226 and 227 in Chapter V of Part VI of the

Constitution attracting the proviso to clause (2) of Article

368.

3. In view of para 7 in the Bill resulting in the Constitution

(Fifty-Second Amendment) Act,

1985, it was required to be

ratified

by the Legislature of not less than one-half of the States

B

as a condition precedent before the Bill could be presented to C

the President for assent, in accordance with the mandatory

special procedure prescribed

in the proviso to clause (2) of

Article

368 for exercise of the constituent

power.· Without

ratification

by the specified number of

State Legislatures, the

stage for presenting _the Bill for assent of the President did not D

reach and, therefore, the so-called assent of the President was

non est and did not result in the Constitution standing amended

in accordance with the terms of the Bill.

4. In the absence of ratification by the specified number of State

Legislatures before presentation of the Bill to the President for E

his assent, as required by the proviso to clause (2) of Article

368, it is not merely para 7 but, the entire Constitution (Fifty­

Second Amendment) Act, 1985 which is rendered unconstitu­

tional, since the constituent po\ver \Vas not exercised as

prescribed in Article 368, and therefore, the Constitution did F

not stand amended in accordance with the terms of the Bill

providing for the amendment.

5. Doctrine of Severability connot be applied to a Bill making

a constitutional amendment where any part thereof attracts the

proviso to clause (2) of Article

368. G

6. Doctrine of Severability is not applicable to permit striking

down para 7 alone

sa,1ng the remaining provisions of the Bill

making the Constitutional Amendment on the ground that para

7 alone attracts the proviso to clause (2) of Article 368.

H

780

A

B

c

D

E

F

SUPREME COURT REPORTS [ 1992] 1 S.C.R.

7. Even otherwise, having regard to the provisions of the Tenth

Schedule of the Constitution inserted

by the Constitution (Fifty­

Second Amendment) Act,

1985, the Doctrine of Severability

does not apply to

it

8. Democracy is a part of the basic structure of the Constitution

and free and fair elections with provision for resolution

of

disputes relating lo the same as also for adjudication of those

relating to subsequent disqualification

by an independent body

outside the House are essential features of the democratic

system

in our Constitution. Accordingly, an independent ad­

judicatory machinery

for resolving disputes relating to the com­

petence of

Members of the House is envisaged as a attribute

of this basic feature. The tenure of the Speaker

who is the

authority

in the Tenth Schedule to decide this dispute is de­

pendent on the continuous support of the majority

in the House

and, therefore, he (the Speaker) does nol satisfy the require­

ment of such an indc.pendcnt adjudicatory authority; and his

choice as the sole arbiter

in the matter violates an essential

attribute of the basic feature.

9. Consequently, the entire Constitution (Fifty-Second Amend­

ment) Acl,

1985 which inserted the Tenth

Schedule together

with clause (2) in Articles 102 and 191, must be declared

unconstitutional or an aborti,'e attempt to so amend the Con­

stitution.

10. It follows that all decisions rendered by the several Speakers

under the Tenth Schedule must also be declared nullity and

liable to be ignored.

11..

On the above conclusions, it does not appear necessary or

appropriate to decide the remaining questions urged."

G ll is unnecessary in this judgment to detail the facts giving rise to the

debate on the constitutional issues relating to the validity of the Tenth

Schedule, more particularly para 7 therein, introduced

by the Constitution

(Fifty-Second Amendment) Act,

1985. Suffice it to say that these matters

arise out of certain actions of the Speakers of several Legislative As-

H semblics under the Tenth Schedule. Arguments on

these questions were

"--,-

""

,/

'

KJHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 781

addressed to us by several learned counsel, namely, the learned Attorney A

Genera~ S/Shri A.K. Sen, Shanti Bhushan, M.C. Bhandare, F.S. Nariman,

Soli J. Sorabjee, R.K. Garg, Kapil Sibal. M.R. Sharma, Ram Jethmalani,

N.S. Hegde, O.P. Sharma, Bhim Singh and R.F. Nariman. It may be

mentioned that some learned counsel modified their initial stand to some

extent as the hearing progressed

by advancing alternative arguments as

well. Accordingly, the several facets of

each constitutional issue debated

before us were

fully focused during the

hearing. The main debate, however,

was on the construction of paras 6 and 7 of the Tenth Schedule and the

validity of the Constitutional Amendment. Arguments were also addressed

on the question of violation, if any, of any basic feature

of the Constitution

by the provisions of the Tenth

Schedule.

The points involved in the decision of the constitutional issues for

the purpose of our opinion may be summarised broadly as under : -

(A) Construction of

para 6 of the Tenth Schedule.

Its effect and the

extent of exclusion of judicial review thereby.

(B) Construction

of para 7 of the Tenth

Schedule. Its effect and the

extent of exclusion of judicial review thereby.

(C) In case of total exclusion

of judicial review including the jurisdic-

lion of Supreme Court under Article

136 and the High Courts

under Articles

226 and 227 of the Constitution by the Tenth

Schedule, does

para 7 make a change in these Articles attracting

the proviso to clause (2) of Article 368 of the Constitution?

(D) The effect of absence of prior ratification by the

State Legislatures

before the Bill making provisions for such amendment was

presented to the President for assent, on the constitutional validity

of the Tenth Schedule.

(E) Severability of para 7 from the remammg part of the Tenth

Schedule and its effect

on

[be question of constitutional validity of

the Tenth Schedule.

(F) Violation of basic feature of the Constitution, if any, by the Tenth

Schedule as a whole or any part thereof and its effect on the

constitut~onality for this reason.

B

c

D

E

F

G

H

782 SUPREME COURT REPORTS (1992) 1 S.C.R.-

A (G) Validity of the Tenth Schedule with reference to the right of dissent

B

c

of members with particular reference to Article 105.

As indicated by us in our operative conclusions pronounced earlier,

we need not express our concluded opinion on the points argued before

us which are not necessary for supporting the conclusion reached by us

that the entire tenth Schedule and consequently the Constitution {Fifty­

Second Amendment) Act, 1985 is unconstitutional on the view we have

taken

on the other points. We are, therefore, giving our reasons only in

respect of the points decided by us leading to the conclusion we have

reached.

At this stage, it would be appropriate to mention the specific stand

of the Speakers taken at

the hearing. The learned counsel who appeared

for the several Speakers clearly stated that they were instructed to apprise

us that the Speakers did not accept the jurisdiction of this Court to

D entertain these matters

in view of the complete bar on jurisdiction of the

courts enacted

in para 7 read with para 6 of the Tenth Schedule.

Accord­

ingly, they abstained from addressing us on the merits of the impugned

orders

which led to these matters being brought in this Court in spite of

our repeated invitation to them to also

address us on merits in each case,

E which

all the other learned counsel did.

N(, douht, this Court's jurisdiction

to decide the co.nstitutional validity of the Tenth Schedule was conceded,

but no more.

F

It is in these extra-ordinary circumstances that we had to hear these

matters.

We need not refer

herein to the det<tils of any particular case since

the merits of each case arc dealt separately in the order of that case. Suffice

it to say that the unanimous ,·icw of the Bench is that the Speakers' decision

disqualifying a member under the Tenth Schedule is not immune from

judicial scrutiny. According to the majority

it is subject to judicial scrutiny

on the ground

of illegality or perversity which in the minority view, it is a

G nullity liable

to be so declared and ignored.

We consider it apposite

in this context to recall the duty of the Court

m such delicate situations. This

is best done by quoting Chief Justice

Marshall

in

Cohens v. Virginia, 6 Wheat 264, 404, 5 L.Ed. 257, 291 (1821],

H wherein he said :

1

KJHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 783

"It is most true, that this Court will not take Jurisdiction if it A

should not : but

it is equally true that it must take jurisdiction

if it should. The judiciary cannot, as the legislature

may, avoid

a measure because it approaches the confines

of the

constitu·

tion. We cannot pass it by because it is doubtful. With whatever

doubts, with whatever difficulties, a case may be attended,

we B

must decide it if it be brought before us. We have no more

right to decline the exercise of jurisdiction which

is given, than

to usurp that which

is not given. The one or the other would

be treason to the constiturioq. Questions may occur which

we

would gladly avoid, but we cannot avoid them. All we can do,

is to exercise our best judgment, and conscientiously to perform C

our duty. In doing this, on the present occasion, we find this

tribunal invested with appellate jurisdiction

in all cases arising

under the constitution and laws of the

United States. We find

no exception to this grant, and

we cannot insert one.

D

xxx xxx xxx

........ If the question cannot be brought in a court, then there

is no case in law or equity, and no jurisdiction is given by the

words of the article. But if, in any

controversy depending in a

coun, tile cause should depend on the validity of such a. law, that E

would be a case arising under tile constitution, to which the

judicial power

of the

United States would extend ...... "

(emphasis supplied)

More recently, Patanjali Sastri, CJ., while comparing the role of this

Court

in the constitutional scheme with that of the

U.S. Supreme Court, F

pointed out

in the State of Madras v.

V.G. Row (1952] SCR 597 that the

duty

of this Court

flows from express prO\isions in our Constitution while

such power

in the

U.S. Supreme Court has been assumed by the interpreta·

tivc process giving a wide meaning to the "due process" clause. Sastri, CJ.,

at p.605, spoke thus:

G

"Before proceeding to consider this question, we think it right

to point out, what

is sometimes overlooked, that our

Constitu·

tion conlains express provisions for judicial revic\v of legislation

as to its conformity "'ith the Constitution

1 unlike as in America

where the Supreme Court has assumed extensive powers of H

784 SUPREME COURT REPORTS [1992] 1 S.C.R.

>-

A reviewing legislative acts under cover of the widely interpreted

'due process' clause in the Fifth and Fourteenth Amendments.

If. then,. the courts in this country face up to such important and

none too easy task, it is not out

·of any desire to tilt at legislative

authority in a crnsader's spirit, but in discharge of a duty plainly

B

laid upon them by the Constitution. This is especially true as

regards the 'fundamental rights',

as to which this court has been

assigned the role of a sentinel on the qui

vive.

While the Court

naturally attaches great weight to the legislative judgment, it

cannot desert its own duty to determine finally the con-

stitutionality of an impugned statute. We have ventltred 011 these

c obvious remarks because it appears. to have been suggested in

some quarters that the courts in the new set up are out to seek

clashes with the legislatures in the country."

(emphasis supplied)

We are in respectful agreement with the above statement of Sastri,

D

CJ, and wish to add that even though such an obvious statement may have

been necessary soon after the Constitution came into force and

may not be

a necessary reminder four decades later at this juncture, yet it appears

..,,.

apposite in the present context to clear the lingering doubts in some minds.

We have no hesitation in adding further that while we have no desire to

E

clutch at jurisdiction, at the same time we would not be deterred in the

performance of this constitutional duty whenever the need arises.

We would also like to observe the unlike England, where there is no

written Constitution and

Parliament is supreme, in our country there is a

written Constitution delineating the spheres of jurisdiction of the legisla-

-~

F

tore and the judiciary whereundcr the power to construe the meaning of

the provisions in the Constitution and the la\vs is entrusted to tne judiciary

with finality attached to the decision of this Court illfer 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

G

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 obligation of every person and authority

to accept its binding effect when the decision

is rendered

b~ this Court. It

y

H is also to be remembered that in our constitutional scheme based on

-""

-...

KIHQTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 785

democratic principles which include governance by rule of law, every one A

has to act and perform, his obligations according to the law of the land and

it is ihe constitutional obligation of this Court to finally say what the law

is. We have no doubt that the Speakers and all others sharing their views

are alive to this constitutional scheme, which is as much the source of their

jurisdictton as it is of this Court and also conscious that the power given B

.to each wing is for the performance of a public duty as a constitutional

obligation

and not for self-aggrandisement.

Once this perception is clear

to all, there can be no room for any conflict.

The Tenth Schedule

was inserted in the Constitution of India by the

Constitution (Fifty-Second Amendment) Act.

1985 which came into force C

with effect from l.3.1985 and is popularly known as the Anti-Defection

Law. The Statement of Objects and Reasons says that this amendment

in

the Constitution was made to combat the evil of political defections which

has become a matter of national concern and unless combated,

is likely to

undermine the very foundations of our democratic system and the prin-

D

ciplcs which sustained it. This amendment is, therefore, for outlawing

defection to sustain our democratic principles. The Tenth Schedule con­

tains eight paras. Para J is the interpretation clause defining 'House' to

mean either House of Parliament or the Legislative Assembly or, as the

case may he, either House of the Legislature of a State. The expressions

'legislature party' and 'original political party' which are used

in the E

remaining paras are also defined.

Para 2 provides for disqualification on

ground of defection. Para 3 provides that disqualification on ground of

defection

is not to apply in case of split indicating therein the meaning of

'split'.

Para 4 provides that disqualification on ground of defection is not

to apply

in case of merger.

Para 5 provides exemption for the Speaker or

the Deputy Speaker of the House of the People or of the Legislative

Assembly of the Stale, the Deputy Chairman of the Council of States or

the Chairman or the Deputy Chairman of the Legislative Council of a State

from the applicability of the provisions of the Tenth Schedule. Para 8

contains the rule making power of the Chairman or the Speaker.

For the purpose of deciding the jurisdiction of this Court and the

justiciability of the cause, it is paras 6 and 7 which arc material and they

read as und1:r:

F

G

"6. Decision on questions as to disqualification of ground of defec- H

786 SUPREME COURT REPORTS (1992] 1 S.C.R.

A tion.-

B

c

D

E

F

i. If any question arises as to whether a member of a House

has become subject to disqualification under this

Schedule, the

question shall be referred for the decision of the Chairman or,

as the case

may be, the

Speaker of sucb House and his decision

shall be final :

Provided that where the question which has arisen

is as to

whether the

Chairman. or the Speaker of a House has become

subject to such disqualification, the question shall be referred

for the decision of such member of the House as the House

may elect in this behalf and his decision shall be final.

2. All proceedings under sub-paragraph (1) of this paragraph

in relation to any question as to disqualification of a member

of a House under this Schedule shall be deemed to be proceed­

ings

in Parliament within the meaning of Article 122 or, as the

case

may be, proceedings in the Legislature, of a

State within

the meaning of Article

212.

7. Bar of Jurisdiction on courts. -

Notwithstanding anything

in this

Constitution, no court shall

have any jurisdiction

in respect of any matter connected with

the disqualification of a member of a House under this Schedule."

We shall now deal with the points involved enumerated earlier.

Points '.A' & 'B' -Paras 6 & 7 of Tellth Schedule

In support of the objection raised to the jurisdiction of this Court

and the justiciability of the Speaker's decision relating to disqualification

G of .a member, it has been urged that sub-paragraph (1) of para 6 clearly

lays down that the decision of the· Chairman or, as the case may be, the

Speaker of such House shall be final and sub-paragraph (2) proceeds to

say that all proceedings under sub-paragraph (1) 'shall be deemed to the

proceedings

in Parliament ...... or, ...... proceedings in the Legislature of a

State' within the meaning of Article 122 or Article 212, as the case may be.

H It was urged that the clear provision in para 6 that the decision of the

.. -

,.. -

..;

KIHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 787

Chairman/Speaker on the subject of disqualification under this Schedule A

shall be final and the further provision that all such proceedings 'shall be

deemed to be proceedings

in

Parliament .... or, .... proceedings in the

Legislature of as State', within the meaning of Article

122 or Article

212,.

as the case may be, clearly manifests the intention that the jurisdiction of

all courts including the Supreme Court is ousted in such matters and the

B

decision on this question is not justiciable. Further argument is that para

7 in clear words thereafter reiterates that position

by saying that 'not-

withstanding anything

in this Constitution, no court shall have any jurisdic-

tion in respect of any matter connected with the disqualification of a

member of a House under this Schedule'. In other words, the argument

is

tqat P,ara 6 by itself provides for ouster of the jurisdiction of all courts c

including the Supreme Court and para 7 is a remanifestation of that clear

intent

in case of any doubt arising from para 6 alone.

On this basis it was

urged that the issue raised before us is not justiciable and the Speaker or

the Chairman,

as the case may be, not being 'Tribunal' within the meaning

of that expression used in Article

136 of the Constitution, their decision is

D

not open to judicial review.

In reply, it was urged that the finality Clause in sub-paragraph (1) of

para 6 does

not exclude the jurisdiction of the High Courts under Articles

226 and 227 and of this Court under Article 136; Deeming provision in

E

sub-paragraph (2) of Para 6, it was urged, has the only effect of making it

a 'proceedings in Parliament' or 'proceedings in the Legislature of a State'

to bring it within the ambit of clause (1) of Articles

122 or 212 but not

within clause (2) of these Articles.

The expression 'proceedings in

-~

Parliament' and 'proceedings in the Legislature of a State' are used only

in cluase .(1) of Articles 122 and 212 but not in clause (2) of either of these

F

' Articles, on account of which the scope of the fiction cannot be extended

beyond the limitation implicit

in the specific words used in the legal fiction.

This being so,

it was argued that immunity extended only to 'irregularity of

procedure' but not to illegality

as held in Keshav Singh -[1965] 1

SCR 413. ·

In respect of para 7, the reply is that the expression 'no court' therein must

a

be similarly construed to refer only to the courts of ordiqary jurisdiction

_,

but not the extra-ordinary jurisdiction of the High Courts under Article

226 & 227 and the Plenary jurisdiction of Supreme Court under Article

136. It was also argued that the Speaker/Chairman while deciding the

'

questidn of disqualification of member under para 6 exercises a judicial

function of the State which otherwise would be vested in the courts and,

H

788 SUPREME COURT REPORTS (1992] 1 S.C.R.

A therefore, in this capacity he acts as 'Tribunal' amenable to the jurisdiction

under Articles 136, 226 and 227 of the Constitution. Shri Sibal also con­

tended that the bar in para 7 operates only at the interim stage, like other

election disputes, and not after the final decision under para 6.

B

c

The finality clause in sub-paragraph (1) of para 6 which says that the

decision

of the Chairman or, as the case may be, the Speaker of such House

shall be final

is not decisive. It is

settled that such a finality clause in a

statute by itself

is not sufficient lo 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 uf nullity. Accordingly,

sub-paragraph (1) alone is insufficient to exclude the extra-ordinary juris-

diction

of the High Courts and the plenary jurisdiction of this Court. The

legal fiction in sub-paragraph (2) of para 6 can only bring the proceedings

under sub-paragraph (1) thereof within the ambit of clause (1) of Article

D 122

or clause (1) of Article 212, as the case may be, since the expressions

used in sub-paragraph (2) of para 6

of the Tenth Schedule are 'shall be

deemed to be proceedings in

Parliament' or 'proceeedings in tile legislanire

of a State'. and such expressions find place both in Articles 122 and 212

only in clause (1) and not clause (2) thereof. The ambit of the legal fiction

must

be confined to the !imitation implicit in the words used for creating

E

the fiction and it cannot be

given an extended meaning lo include therein

something in addition.

It is also settled that a matter falling within the ambit

of clause (1) of either of

these two Articles 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'.

F

To overcome this result, it was argued that such matter would fall

within

the ambit of Clause (2) of both Articles 122

and 212 because the

consequence

of the order of disqualification by the Speaker/Chairman

would relate to the conduct of business

of the House.

In the first place, the

two

separate clauses in Articles 122 and 212 clearly imply that the meaning

G

and scope of the two cannot be identical even assuming there be some

overlapping area between them. What is to be seen is the direct impact of

the action and its true nature and not the further consequences flowing

therefrom.

It cannot be doubted in view of the clear language or sub­

pargraph (2) of para 6 that it relates to

clause (1) of hnth Articles 122 and

H 212

and the

legal fiction cannot, therefore. he extendcJ hl'wnd the limits

~

' \.

'

KIHOTO HOLLORAN v. ZACHILLHU [VERMA, J.] 789

of the express words used in the fiction. In construing the fiction it is not A

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. The fiction

in para 6(2) is a

limited 0ne which

serves its purpose by confining it to clause (1) alone of.

Articles 122 and 212 and, therefore, there is no occasion to enlarge ·its ·B

scope by reading into it words which are not there and extending it also to

cl:;tuse (2) of these Articles. See Commissioner of Income-tax v. Ajax

Products Ltd., [1%5] 1 SCR 700.

Moreover, it does appear to us that the decision relating to dis­

qualification of a member does not relate to regulating procedure or the

C

conduct of business of the House 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

w'1ich is not

permissible. That being

so, the matter falls within the ambit o.f

Clause (1)

only of Articles

122 and 212 as a result of which it would be vulnerable on

the ground of illegality and perversity and, therefore, justiciable to that D

extent.

It

is, therefore, not possible to uphold the objection of jurisdiction

on the finality clause or the legal fiction created

in para 6 of the Tenth

Schedule when justiciability of. the clause is based on a ground of illegality E

or perversity (see

Keshav Singh

-[1965] 1 SCR 413). This in our view is the

true construction and effect of para 6 of Tenth Schedule.

We shall now deal with para 7 of the Tenth Schedule.

The words

in para 7 of the Tenth Schedule are undoubtedly very wide F

and ordinarily mean that this provision supersedes any other provision

in the

Constitution. This is clear from the use of the non obstante clause 'not­

withstanding anything

in this

Constitution' as the opening words of para 7.

The non obstante clause followed by the expression 'no court shall have any

jurisdiction' leave no doubt that the bar of jurisdiction of courts contained

in para 7 is complete excluding also the jurisdiction of the Supreme

Court G

under Article

136 and that of the High

Courts under Articles 226 and 227 of

the Constitution relating to matters covered by para 7. The question, there­

fore,

is of the scope of para 7. The scope of para 7 for this purpose is

to be

determined

by the expression 'in respect of any matter connected with the

disqualification of a member of a House under this

Schedule'. H

A

B

c

D

E

F

790 SUPREME COURT REPORTS (1992) 1 S.C.R.

One of the constructions suggested at the hearing was that this

expression covers

only the intermediate stage of the proceedings .relating

to disqualification under para 6 and not the end stage when the final order

is made under para 6 on the question of disqualification. It

was suggested

that this construction would be in line with the construction made by this

Court in its several decisions relating to exclusion of Courts' jurisdiction in

election disputes at the intermediate stage under Article 329 of the Con­

stitution. This construction suggested of para 7 does not commend to us

sinq: it is contrary to the clear and unambiguous language of the provision.

The

1

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 dis­

qualification but also the final order on the question of disqualification

made under para 6 which

is undoubtedly such a matter. There is thus

express exclusion of all courts' jurisdiction even

in respect of the final

order.

As earlier indicated by virtue of the finality clause and the deeming

provision

in para 6, there is exclusion of all courts' jurisdiction to a

considerable

extent leaving out only the area of justiciability on the ground

bf illegality or perversity which obviously is relatable only to the final order

under para 6. This being so, enactment of para 7 was necessarily made to

bar the jurisdiction of courts also

in respect of matters falling outside the,

purview of the exclusion made

by para 6.

Para 7 by itself and more so when

read along with para 6 of the Tenth Schedule, leaves no doubt that

· exclusion of all courts' jurisdiction

by para 7 is total leaving no area within

the purview, even of the Supreme

Court or the·High Courts under Articles

136, 226 and 227. The language of para 7 being explicit, no other aid to.

construction

is needed. Moreover, the speech of the Law Minister who

piloted the Bill in the Lok Sabha and that of the

Prime Minist~r in the

Rajya Sabha

as well as the debate on this subject clearly show that these

provisions were enacted to keep the entire

·matter relating to disqualifica-

G tion including the Speakers' final decision under para 6 on the question of

djsqualification,

wholly outside the purview of all courts including the

Supreme Court and the High Courts. The legislative history of the

absence

of such a provision excluding the courts' jurisdiction in the two earlier Bills

which lapsed also re-inforces the conclusion that enactment of para 7 was >-

H clearly to provide for total ouster of all courts' jurisdiction.

~

1

~

'

-....

~

j:.

ii

..

!-

KJHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 791

In the face of this clear language, there is no rule of construction A

which permits the reading of para 7 in any different manner since there is

no ambiguity in the language which is capable of only one construction,

namely, total exclusion of the jurisdiction of all courts including that of the

Supreme Court and the High Courts under Articles 136, 226 and 227 of

the Constitution in respect of every matter connected with the disqualifica- B

tion of a member of a House under the Tenth Schedule including the final

decision rendered

by the

Speaker/Chairman, as the case may be. Para 7

must, therefore,

be read in this manner alone.

The question now

is of the effect of enacting such a provision in the

Tenth Schedule and the applicability of the proviso to clause (2) of

Art~e C

368 of the Constitution.

Point 'C' -Applicability of Article 368(2) Proviso

The above construction of para 7 of the Tenth Schedule gives rise to

the question whether

it thereby .makes a change in Article 136 which is in D Chapter IV of Part V and Articles 226 and 227 which arc in Chapter V of

Part VI of the Constitution. If the effect of para 7 is to make such a change

in these provisions so that the proviso to clause (2) of Article 368 is

attracted, then the frurther question which arises is of the effect on the

Tenth Schedule of the absence of ratification

by the specified number of E State Legislatures, it being admitted that no such ratification of the Bill was

made

by any of the

State Legislatures.

Prima facie it would appear that para 7 does seek to make a change

in Articles 136, 226 and 227 of the Constitution inasmuch as without para

7 in the Tenth Schedule a•decision of the Speaker/Chairman would be F

amenable to the jurisdiction of the Supreme Court under Article 136 and

of the High Courts under Articles 226 and 227 as in the case of decisions

as to other disqualifications provided in clauses (1) of Article 102 or 191

by the President/Governor under Article 103 or 192 in accordance with the

opinion of the Election Commission which was the Scheme under the two

earlier Bills which lapsed. However, some learned counsel contended G

placing reliance on Sri Sankari Prasad Singh Deo v. Union of ll!dia and

State of Bihar, (1952] SCR 89 anJ Sajjan Singh v. Siate of Rajastlian, (1965]

1 SCR 933 that the effect of such total exclusion of the jurisdiction of the

Supreme Court and the High Courts does not make a change in Articles

136, 226 and 227. A close reading of these decisions indicates that instead H

792 SUPREME COURT REPORTS [1992] 1 S.C.R.

A of supporting this contention, they do in fact negative it.

B

c

D

E

F

In Sankari Prasad, the challenge was to Articles 31A and 31B

in­

serted in the Constitution by the Constitution (First Amendment) Act,

1951. One of the objections was based on absence of ratification under

Article

368. While rejecting this argument, the Constitution Bench held as

under:-

"It will be seen that these Articles do not ei,ther in tem1s or i'l

effect seek to make any change in article 226 or in articles 132

and 136. Article 31A aims at saving laws providing for the

compulsory acquisition

by the

State of a certain kind of proper­

ty from the operation of article 13 read with other relevant

articles

in

Part 111, while article 31B purports to validate certain

specified Acts and Regulations already passed, which, but for

such a provision, would be liable to be impugned under article

13. It is not correct to say that the powers of the High Court

under article

226 to issue writs

"for the enforcement of any of

the rights conferred

by

Part III" or of this Court under articles

132 and 136 to entertain appeals from orders issuing or refusing

such writs are

in any way affected .. They remain just the same

as they were before : only a certain class of case has been

excluded from the purview

cif

Part III and ti1e courts could no

longer interfere, not because their powers were Curtailed in any

n1anner or to any extend, but because there would be no occasion

hereafter for the exercise of their powers in such cases."

[emphasis supplied]

The test applied

was whether the impugned provisions inserted by

the Constitutional Amendment did 'either

in terms or in effect seek to

make any change

in Article 226 or in Articles 132 and 136'. Thus the

change

may be either in terms i.e. explicit or in effect in these Articles to

require ratification. The ground for rejection of the argument therein was

G that the remedy in the courts remained unimpaired and unaffected by the

change and the change

was really by extinction of the right to seek the

remedy. In other words, the change

was in the right and not the remedy of

approaching the court since there

was no occasion to invoke the remedy,

the right itself being taken

away. To the same effect is the decision in Sajjan

H

Singh, wherein Sankari Prasad was followed stating clearly that there was

.X

•

KIHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 793

no justification for reconsidering Sankari Prasad. A

Distinction has to be drawn between the abridgement or extinction

of a right and restriction of the remedy for enforcement of the right.

If

there is an abridgement or extinction

of· the right which results in the

disappearance of the cause of action which enables invoking the remedy

B 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. To this situation,

Sankari Prasad and

Sajja11 Si11g/J

apply. 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 the cause of C

action cannot be enforced for want of that remedy, then the change made

is in the remedy and not in the subsisting right. To this latter category,

Sa11kari Prasad and Sajja11 Si11g/I have no application. This is clear from the

above-quoted passage

in

Sa11kari Prasad which clearly brings out this

distinction between a change

in the right and a change

in the remedy.

The present case, in unequivocal terms,

is that of destroying the

remedy

by enacting para 7 in 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

D

for

para 7 which deals with the remedy and not the right, the jurisdiction E

of the Supreme Court under Article 136 and that of the High Courts under

Articles

226 and 227 would remain unimpaired to challenge the decision

under para

6, as in the case of decisions relating to other disqualifications

specified· in clause (1) of Articles 102 and 191, which remedy continues to

subsist. Thus, this extinction· of the remedy alone without curtailing the F

right, since the question of disqualification of a member on the ground of

defection under the Tenth Schedule does required 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.

On this conclusion, it is undisputed that the proviso to clause (2) of G

Article 368 is attracted requiring ratification by the specified number of

State Legislatures before presentation of the Bill seeking to make the

constitutional amendment to the President for his assent.

Poini 'D' -Effect of absence of ratification H

794

A

B

c

()

SUPREME COURT REPORTS (1992] 1 S.C.R.

The material part of Article

368 is as under : "368. Power of Parliament to ament the Constitution and Pro­

. cedure therefore. - (1) Notwithstanding anything in this Con­

stitution, Parliament may in exercise of its constituent power

amend by way of addition, variation or repeal any provision of

this Constitution in accordance with the procedure laid dow11 in

this article.

(2) An amendment of this Constitution may be initiated only by

the introduction of a Bil~ for the purpose in either Hou~e of

Parliament, and when the Bill is passed in each House by a

majority of the total membership of that 1,-louse and by a

majority of not less than two-thirds of the members of that

House present and voting,

it shall be presented to the

President

who shall give his assent to the Bill and thereupon the Con­

stitution shall stand amended in accordance with the terms of

the Bill :

Prodded that if such amendment seeks to make a!•Y change in -

(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or

E (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part

F

G

XI, or

(c) any of the Lists

in the

Seventh Schedule, or

( d) the representation of States in Parliament, or

( e) the provisions of this article,

the amendment shall also require to be

ratified by the Legislature of not less than one-half of the

States by

resolutions to that effect passed by those Legislatures before the

Bill making provision for such amendment is presented to the Presi­

dent for assent."

(emphasis supplied)

•

'

It is clause (2) with its proviso which is material. The main part of ,

clause (2) prescribes that a constitutional amendment can be initiated only -

H by the introduction of a Bill for the purpose and when the Bill is passed

KJHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 795

by each House by a majority of the total membership of that House and A

by a majority of not less than two-thirds of the members of that House

present and voting, it shall be presented to the President who shall give his

assent to the Bill and thereupon the Constitution shall stand amended

in

accordance with the terms of the

,/!!ill. Jn short, the Bill not being passed

by the required majority is presented'to the President for his assent to the B

Bill and on giving of the assent, the Constitution stands amended accord­

ingly. Then comes, the proviso which says that 'if such an amendment seeks

to make any change' in the specified provisions of the Constitution, the

amendment shall also require to be ratified

by the Legislature of not less

than one-half of the States by resolutions to that effect passed by those

Legislatures before the

Bill making provision for such amendment is C

presented to the Preseident for assent. In other words, th_e proviso 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 such

Bills. This

is a condition interposed by the proviso in between the passing D

of the Bill by the requisite majority in each House and presentation of the

Bill to the

President for his assent, which assent results in the Constitution

automatically standing amended

in accordance with the terms of the Bill.

Thus, the Bills governed by the proviso cannot be presented to the

Presi­

dent for his assent without the prior ratification by the specified number

of State Legislatures or in other words, such ratification is a part of the E

special procedure or a condition precedent to presentation of the ·Bill

governed by the proviso to the President for his assent. It logically follows

that the consequence of the Constitution standing amended in accordance

with the terms of the

Bill on assent by the

President, which is the substan-

tive part of Article 368, results only when the Bill has been presented to F

the President for his assent

in

confoniiity 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

ijouse and it has also been ratified by the

Legislature of not less than one-half of the States. G

The constituent power for amending the Constitution conferred by

Article 368 also prescribes the mandatory procedure in clause (2)_ including

its proviso, for its exercise. The constituent power cannot, therefore, be

exercised in any other manner and non-compliance of the special proce-H

796 SUPREME COURT REPORTS (1992] 1 S_.C.R.

A dure so prescribed in Article 368 (2) cannot bring about the result of the

Constitution standing amended in accordance with the terms of the Bill

since that result ensues only at the end of the prescribed mandatory

procedure and not otherwise. The substantive part of Article

368 which

provides for the resultant amendment'

is the consequence of strict com-

B

pliance of the mandatory special procedure prescribed for exercise of the

constituent power and that result does not ensue except in the manner

prescribed.

The true nature and import of the amending power and procedure

under Article

368 as distinguished from the ordinary legislative procedure

C was indicated in Kesavananda Bharati [1973]

Supp. SCR 1 at pp. 561, 563

& 565:

D

E

F

G

H

" ....... Under Article 368 However, a different and special proce-

dure is provided for amending the constitution. A Bill has to be

introduced

in either House of

Parliament and must be passed

by each House separately by a special majority. It should be

passed not only by 2/3rds majority

of the members present and

voting but

also by a majority of the total strength of the House.

No joint sitting of the two Houses is permissible. In the case

of certain provisions of the Constitution which directly or

indirectly affect interstate relations, the proposed amendment

is required to be ratified by the Legislatures which is not a

legislative process of not less than one half of the

States before

the

Bill proposing the amendment is presented to the

President

for his assent. Tlte procedure is special in the sense that it is

different and more exacting or restrictive than the one by which

ordinal)' laws are niade by Parlianient. Secondly in certain 1nat­

ters the State Legislatures are ·involved in the process of making

the amendn!el!t. Such partnership between the Parliament and

the State Legislatures in making their own laws by the ordinary

procedure

is not recognised by the Constitution. It follows from the special provision made in Article 368 for the amendment of

the Constitution that our Constitution is a 'rigid' or 'controlled'

constitution because tlie Constituent Assembly has "left a special

direction as to how the constitution is to. be changed. In view of

Article 368, when the special procedure is successfully followed,

the proposed amendment automatically becomes a part of the

•

_X

KIHOTO HOLLORAN v. ZACHILLHU [VERMA, J.] 797

constitution or, in other words, it writes itself i11to the co11stitu-A

tion."

xxx xxx xxx

" ...... But when it comes to the. amendment of the constitutio11, a

special procedure has been prescribed in Article 368. Since the B

result of following the special procedure under the Article is the

amendment of the co11stitution the process which brings about

the result is known as the exercise of co11stituent power by the

bodies associated in the task of the ame11di11g the constitution. It

is, therefore, obvious, that when the Parliament and the State C

Legislatures function in accordance with Article 368 with a view

to amend the constitution, they exercise constituent power as

distinct from their ordinary legislative power under Articles

245

to 248. Article 368 is not e11tirely proced!lral. Undo!lbtedly part

of it is proced!lral. But there is a clear ma11date that on the

procedure bei11gfol/owed the 'proposed amendment

shall become D

part of the co11stitutio11, which is the s!lbstalltive part of Article

368. Therefore, the peculiar or spe~ial powe1 to gn1end the con­

stitution-is to be sought in Article 368 only and not elsewhere. "

xxx xxx xxx

" ...... 17ie tnte position is that the alchemy of the.special proced!lre

prescribed i11 Article 368 produces the constituent power which

transport the proposed dn1end111ent into the constitution and gives

it equal status with the other parts of the constitution."

(emphasis supplied)

Apart from the unequivocal language of clause (2) including the

proviso therein indicating the above result

of prior ratification being a part

E

F

of the special procedure or condition precedent for valid assent of the

President, the same result is reached even by another route. The ordinary G

role of a proviso is to carve out an exception from the general rule in the

main enacting part. The main enacting part of clause (2) lays down that on

a

Bill for a constitutional amendment being passed in each House by a

requisite majority,

it shall be presented to the

President for his assent and

on the assent being given, the Constitution shall stand amended

in accord-H

798 SUPREME COURT REPORTS (1992) 1 S.C.R.

A ance with the terms of the Bill. The proviso then carves out the exception

in case of Bills seeking to make any change in the .specified Articles of the

Constitution prescribing that iii the case of those Bills, prior ratification by

the Legislatures of not less than one-half of the States is also required

before the

Bill is presented to the

President for assent. This means that a

B

c

Elill falling within the ambit of the proviso 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 Legislatures. The proviso in

clause (2) is enacted for and performs the function of a true proviso by

qualifying the generality of the main enactment in clause (2) in providing

an exception and taking out of the main enactment

in clause (2) such Bills

which but for the proviso would fall within the main part. Not only the

language of the main enactment

in clause (2) and the proviso thereunder

is unequivocal to give this clear indication but the true role of a proviso,

the form in which the requirement of prior ratification if such a

Bill by the

D

State Legislatures'is enacted in ArtlCle 368 lend further assurance that this

is the_ only construction of clause (2) with its proviso which can be

legitimately made.

If this be the correct constructions of Article 368 (2)

with the proviso as

we think it is, then there is no escape from the logical

conclusion that a Bill to

-which the proviso applies does not result in

E

F

G

amending the Constitution in accordance with its. terms on assent of the

President if it was presented to the President for his assent and the

President gave his assent to the Bill without prior ratification by the

specified number of the State Legislaiures. This is the situation in the

present case.

Th,us the requirement of prior ratification by the State Legislatures

is not only a condition precedent forming part of the special mandatory

procedure for" exercise of the constituent power and a constitutional limita­

tion thereon but also a requirement carving out an exception to the general

rule of automatic amendment of the Constitution on the President's assent

to the

Bill. Iii other words, clause (2) with the proviso therein itself lays down

that the President's assent does not result in automatic amendment of the

Constitution

in case of such a Bill it was not duly ratified before

presenta­

tion to the President for his assent. Nothing more is needed to show that·

H not only para 7 of the Tenth Schedule but the entire Constitution (Fifty-

KIHOTO HOLLORAN v. ZACHILLHU [VERMA, J,] 799

Second Amendment) Act, 1985 is still born or an abortive attempt to A

amend the 'constitution for w~t of prior ratification by the State Legisla­

tures of the Bill before its presentation to the President for his assent.

The result achieved

in each case is the same irrespective of the ·route

taken.

If the route chosen is for construing the language of clause (2) with

the proviso merely a part of

it, the requirement or prior ratification is a B

condition precedent forming part of the special

mandatory procedure·

providing that the constituent power in case of such a Bill can be exercised

in this manner alone, the mode prescribed for other Bills being-forbidden.

If the route taken is of treating the proviso•as carving out an exception

from the general rule which

is the normal role of a proviso, then the result C

is that the consequence of the Constitution standing amended in terms of

the provisions of the Bill on the President's assent as laid down in the main

part of clause (2) does not ensue without prior ratification in case of a Bill

to which the proviso applies.

There can thus be no doubt that para 7 of the Tenth Schedule which

D

seeks to· make a change in Article ·136 which is a part of Chapter

IV of

Part V and Articles

226 and 227 which form part of Chapter V of Part VI

of

t\le Constitution, has not been enacted by incorporation in a Bill seeking

to make the Constitutional Amendment in the manner prescribed

by clause

(2) read with the proviso threin of Article

368. Para 7 of the Tenth E

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. The further question

now is: its

effect on the validity of the remaining part

·or the Tenth Schedule and

consequently the Constitution (Fifty-Second Amendment) Act,

1985 itself.

Point 'E' -Severability of para 7 of Tenth Schedule

F

The effect of absence of ratification indicated above suggests inap­

plicability of the Doctrine of Severability. In our opinion, it is not para 7

alone but the entire Tenth Schedule may the Constitution (Fifty-Second . G

Amendment) Act,

1985 itself which is rendered unconstitutional being an

abortive attempt to so amend the Constitution.

It is ihe entire Bill and not

merely para 7 of the Tenth Schedule therein which required prior

ratifica­

tion by the State Legislatures before its presentation to the President for

his assent,

it being a joint exercise by the Parliament and

State Legislatures.

The stage for presentation of

Bill to the President for his assent not having H

800 SUPREME COURT REPORTS [1992] 1 S.C.R.

A reached, the President's assent was non est and it could· not be result in

amendment of the Constitution

in accordance with the terms of the Bill for

the reasons given earlier. Severance of para 7 of the Tenth Schedule could

B

c

· not be made for the purpose of ratification or the President's assent and,

therefore, no such severance

can· be made even for the ensuing result. If

the President's assent cannot validaie para 7 in the absence of prior

ratification, the same assent cannot be accepted to bring about a difference

result with regard to the remaining part of the Bill.

On this view, the question of applying the Doctrine of Severability to

strike down para 7 alone retaining the remaining part of Tenth Schedule

does not arise since

it presupposes that the Constitution stood so amended

on the President's assent. The Doctrine does not apply to a still born

legislation.

The Doctrine of Severability applies

in a case where an otherwise

vali~ly enacted legislation contains a provision suffering from a defect of

.D lack of legislative competence and the invalid provision is severable leaving

the remaining valid provisions a viable whole. This doctrine has no applica­

tion where the legislation

is not validly enacted due to non-compliance of

the mandatory legislative procedure such

as the mandatory special proce­

dure prescribed

for exercise of the constituent power. It

is not possible to

E infuse life in a still born by any miracle of deft surgery even though it may

be possible to continue life by removing a congenitally defective part by

surgical skill. Even the highest degree of surgical skill can help only to

continue life but

it cannot infuse life in the case of still birth.

With respect, the contrary

·view does not give due weight to the effect

F of a condition precedent forming part of the special procedure and the

role of a proviso and results

in rewriting the proviso to mean that ratifica­

tion

is not a condition precedent but merely an additional requirement of

such a

Bill to make that part. effective. This also fouls with the expression

'Constitution shall stand amended

... .' on the assent of President which is

G after the stage when the amendment has been made and ratified by the

State Legislatures

as provided. The historical background of drafting the

proviso also indicates the significance attached lo prior ratification

as a

condition precedent

for valid exercise of the constituent power.

We

are unable to read the Privy Council decision in The Bribery

H Commissioner v. Pedrick Ranasinghe [1965] AC 172 as an authority to

KIHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 801

support applica]:>ility of the Doctrine of Severability in the present case. In A

Kesavanada Bharati, the substance of that decision was indicated by Math-

ew, J., at p. 778 of S.C.R., thus:

" .... that though Ceylon Parliament has plenary power of ordi­

nary .legislation, in the exercise of its constitution power it was

subject to the special procedure laid down

in s, 29 ( 4) .....

" B

While section 29(4) of Ceylon (Constitution) Order was entirely

procedural with no substantive part therein, Article

368 of the Indian

Constitution has also a substantive part

as pointed out in Kesavananda

Bharati. This distinction also has to be borne in mind. C

The challenge in Ranasinghe was only to the legality of a conviction

made under the Bribery Act,

1954 as amended by the Bribery Amendment

Act,

1958 on the ground that the Tribunal which had made the conviction

was constituted under section

41 of the Amending Act which

was invalid

being in conflict with section

55 of the Constitution and not being enacted D

by exercise of constituent power in accordance with section 29( 4) of the

Ceylon (Constitution)

Order. Supreme Court of Ceylon quashed the con­

viction holding section

41 of the Amending Act to be invalid for this reason.

The Privy Council affirmed that view and in this context held that section

41 could be severed from rest of the Amending Act.

Ranu~·ingfie was not E

a case of a Bill passed in exercise of the c.onstituent power without

following the special procedure of section 29( 4) but of a Bill passed

in

exercise of the ordinary legislative power containing other provisions which

could be so enacted, and including therein section

41 which

could be made

only

in accordance with the special procedure of section 29( 4) of the

Constitution. The Privy Council made a clear distinction between legislative

F

and constituent powers and reiterated the principles thus: " .... The effect of section 5 of the Colonial Laws Validity Act,

which

is framed in a manner somewhat similar to section 29( 4.)

of the Ceylon Constitution was that where a legislative power G

is given subject to certain manner and form, that power does

not exist unless and until the manner and form

is complied with.

Lord

Sankey L.C. said:

"A Bill, within the scope of sub-section (6) of section 7A, which

received

lhe Royal Assent without having been approved by H

A

B

c

802 SUPREME COURT REPORTS (1992) 1 S.C.R.

the electors

in accordance with that section, would not be a

valid act

of the legislature. It would be ultra

vires section 5 of

the Act of .1865."

The Bribery Afnenclment Act, 1958, in Ranasinghe, was enacted in

exercise of the ordinary legislative power and therein

was inserted section

41 which could be made only in

pxercise of the constituent power according

to the special procedure prescribed

in section 29(4) of the Ceylon

(Con­

stitutions) Order. In this situation, only section 41 of the Amending Act

was held

io be invalid and severed because the special procedure for the

constituent power

was· required only for that provision and not the rest. In

the instant case 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, not a case of severing the invalid constituent

part from the remaining ordinary legislation.

Ranasinghe could have

ap-

D plication if in an ordinary legislation outside the ambit of Article 368, a

provision which could be made only

in exercise of the constituent power

according to Article

.368 had been inserted without following the special

procedure, and severance of the invalid constituent part alone was the

E

. question. Ranasinghe is, therefore, distinguishable.

Apart from inapplicability of the Doctrine of Severability to a Bill to

which the proviso

to clause (2) of Article 368 applies, for the reasons given,

it does not apply in the present case to strike down para 7 alone retaining

the remaining part of the Tenth

Schedule. In the first place, the discipline

for exercise of the constituent power

was consciously and deliberately p. adopted instead of resorting to the mode of ordinary legislation in accord­

ance with sub-clause (e) of clause (1) of Articles 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 disqualifications. Moreover, even the test

ap­

plicable for applying the Doctrine of Severability to ordinary legislation as

G summarised 'in R.M.D. Chamarbaughwalla v. nie Union of India, (1957)

S.C.R. 930, indicates that para 7 alone is not severable to permit retention

of the remaining part of the Tenth Schedule as valid legislation. The settled

. test whether the enactment would have been made without para 7 indicates

that the legislative intenf

was to make the enactment only with para

7

H therein and not without it. This intention is manifest throughout and

KIHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 803

evident from the fact that but for para 7 the enactment did not require the A

discipline of _Article 368 and exercise of the constituent power. Para 7

follows para 6 the contents of which indicate the importance given to para

7 while enacting the Tenth Schedule. The entire exercise, as reiterated time

and again in the debates, particularly the Speech of the Law Minister while

piloting the Bill in the Lok Sabha and that of the Prime Minister in the B

Rajya Sabha, was to emphasise that total exclusion of judicial review of the

Speaker's decision by

all courts including the

Supreme Court, was the

prime object of enacting the Tenth Schedule. The entire legislative history

shows this. How can the Doctrine of Severability be applied

in such

a

situation to retain the Tenth Schedule striking down para 7 alone ? This is

further reason for inapplicability of this doctrine. C

Point 'F' -Violation of basic features

The provisions in the Tenth Schedule minus para 7, assuming para 7

to be severable as held in the majority opinion, can be sustained only if D

they do not violate the basic structure of the Constitution or damage any

of its basic features. This

is settled by Kesavananda Bharti (1973]

Supp.

S.C.R. 1. The question, therefore, is whether there is violation of any of the

basic features of the Constitution

by the remaining part of the Tenth

Schedule, even assuming the absence of ratification in

accordanee with the

proviso to clasue (2) of Article

368 results in invalidation of para 7 alone. E

Democracy is a part of the basic structure of our Constitutioin; 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 F

disqualificationsby an independent authority. It

is only by a fair adjudica-

tion of such disputes relating to validity of electrons and subsequent

disqualifications of members that true reflection of the electoral mandate

and governance

by rule of law essential for democracy can be ensured. In

the democratic pattern adopted in our Constitution, not only the resolution

of election dispute

is entrusted to a judicial tribunal, but even the decision G

on questions as to disqualifcation of members under Articles

103 and 192

is by the President/Governor in accordance with the ouinion of the Elec­

tion Commission. The constitutional scheme, therefore, for decision on

questions as to disqualification of members after being duly elected, con­

templates adjudication of such disputes

by

an· indepel!dent authority out- H

804 SUPREME COURT REPORTS (1992) 1 S.C.R.

A side the House, namely, President/Governor in accordance with the

opinion of the Election Commission,

a11 ·of whom are high constitutional .

functionaries with security of tenure independent of the

will of the House.

Sub-clause (e) of clause

(1) in Articles

102 and 191 which provides for

enactment of any law

by the Parliament to prescribe any disqualification

B

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. Accordingly, all disqualifications includ­

ing disqualification on the ground of defection, in our constitutional

scheme, are different species of the same genus, namely, disqualification,

and the constitutional scheme does not contemplate any difference

in their

C basic traits and treatment. It is undisputed that the disqualification on the

ground of defection could

as well

hav~ been prescribed by an ordinary law

made by the Parliament under A;ticles 102 (1) (e) and 191 (1) (e) instead

of

by resort to the constituent power of enacting the Tenth Schedule. This

itself indicates that all disqualifications of members according to the con-

D situtional scheme 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. Thus,

for ihe purpose of entrusting the decision of the question of disqualification

E of a member, the constitutional scheme envisages an independent authority

outside the House and not within

it, which

m'ay be dependent on the

pleasure of the majority

in the House for its tenure.

The Speaker's office

is undoubtedly high and has considerable aura

F

with the attribute of impartiality. This aura of the office was even greater

when the Constitution

was framed and yet the framers of the Constitution

did not choose to vest the authority of adjudicating disputes

as to

dis­

qualification of members to the Speaker; and provision was made in

Articles 103 and 192 for decision of such disputes by the President/Gover­

nor in accordance with the opinion of the Election Commission. To reason

G

is not far to seek.

The Speaker being an authority within the House and his tenure

being dependent o~ the will of the majority therein, likelihood of suspicion

of bias could not be ruled out. The question

as to disqualification of a

H member has adjudicatory disposition and, therefore, requires the decision

• ..

KIHOTO HOLLORAN v. ZACHILLHU [VERMA, J.] 805

...

to be rendered in consonance with the scheme for adjudication of disputes. A

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

B_ias are; Nemo judex in causa 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

B

be done, but should manifestly and undoubtedly be seen to be done.' This

appears to be the underlying principle adopted

by the framers of the

Constitution

in not designating the

Speaker as the authority to decide

_x

election "disputes and questions -as to disqualification of members under

Artides 103, 192 and 329 and opting for an independent authority outside

the House. The framers of the Constitution had

in this manner kept the c

office of the

Speaker away from this controversy. There is nothig unusual

in this scheme if we bear in mind that the final authority for removal of a

Judge of the Supreme Court and High Court its outside the judiciary in

rt

the Parliament under Article 124(4). On the same principle the authority

to decide the question of disqualification of a member of legislature

is

D

outside the House as envisaged by Articles

103 and 192.

-._.,

.Jn 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 E

feature of the Constitution sine~ the Speaker cannot be treated as an

authority contemplated for being entrusted with this function

by the basic

postulates of the Constitution, notwithstanding the great dignity attaching

to that office with the attribute of impartiality.

..... F

,.

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. Nothing said herein relating to the

office of the Speaker applies to the Chairman of the Rajya Sabha, that is,

the Vice-President of India. However, the only authority named for the Lok

G

Sabha and the Legislative Assell)blies is the Speaker of the House and

. entrustment of this adjudicatory function fouls with the constitutional -,

scheme and, therefore, violates a basic feature of the Constitution. Remain-

ing part of the Tenth Schedule also is rendered invalid notwithstanding the

... fact that this defect would not ,apply to the Rajya Sabha alone whose

Chairman

is the Vice-

President of India, since the Tenth Schedule be-H

806 SUPREME COURT REPORTS (1992] 1 S.C.R. ,..

A comes unworkable for the Lok Sabha and the State Legislatlires. The

staturory 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.

B

Since the conferment of authority is on the Speaker and that

provision cannot be sustained for the reason given, even without para

7,

the entire Tenth Schedule is rendered invalid in the absence of any valid

authority for decision of the dispute.

Thus, even .if the entire Tenth

Schedule cannot be held unconstitu-

)'..

c

tional merely on the ground of absence of ratification of the Bill, assuming

it

is permissible to strike down para 7 alone, the remaining part of the

Tenth

Schedule is rendered unconstitutional also on account of violation

of the aforesaid basic feature. Irrespective of the view on the question of

effect of absence

of ratification, the entire Tenth Schedule .must be struck

down as unconstitutional.

~~

D

'tc •)

Point 'G' -Other contentions

<

We have reached the conclusion that para 7 of the Tenth Schedule is ~

unconstitutional; that the entire Tenth.Schedule is constitutionally invalid in

,\-

E

the absence of prior ratification in accordance with the proviso to clause (2)

of Article 368; that the Doctrine of Severability does not apply in the present

case of a constitutional amendment which suffers from the defect

of absence

of ratification as required

by the proviso to clause (2) of Article 368; that the

remaining part

of the Tenth

Schedule minus para 7 is also unconstitutional

for violation

of a basic feature of the Constitution; and that the entire Tenth

F

Schedule is, therefore, constitutionally invalid rendering the Constitution ....

~

(Fifty-Second Amendment) Act, 1985 still born and an abortive attempt to

amend the constitution. In

view of this conclusion, it is not necessary for us

to express our concluded opinion on the other grounds

of·challenge to ihe

constitutional validity of the entire Tenth Schedule urged at the hearing on

•

G

the basis of alleged violation of certain other basic features of the Constitu-

'

tion including the right of members based on Article 105 of the Constitution.

;

These are our detailed reasons for the operative conclusions pro-

nounced

by us earlier on November 12, 1991.

..,.,

R.P.