KIHOTO HOLLOHAN v. ZACHILLHU AND OTHERS

Citation: [1992] 1 S.C.R. 686

Court: Supreme Court of India

Bench: L.M. SHARMA, M.N. VENKATACHALIAH, J.S. VERMA, K. JAYACHANDRA REDDY, S.C. AGRAWAL

Case summary

The challenge to the consLitvtional validity of the Amendment which introduces the Tenth Schedule is sought to be sustained on many grounds. It is ·alternatively contended that if it is to be held that the amendment does not attract the proviso to Article 368(2), then...

Judgment text

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Transfer Petition is allowed and the Writ Petition, Rule No. 2421 of 1990 on the file of the High Court of Guwahati is withdrawn to this Court for the purpose of deciding the constitutional issues and of declaring the la\v on the matter.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 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 (Fifty-Second Amendment) Act. \ 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. ...

(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 purported amendment is abortive and does not in law br. ing about a valid amendment. Or whether, the effect of such non-compliance invalidates Paragraph 7 alone and the other pro\isions which, by themselves, do not attract the pro\-iso do not become invalid. --··~ (D) Thal even if the effect of non-ratification by the legislature KIHOTO HOLLOHAN v. ZACH! LLHU [VENKATACHALlAH, J. ] 725 of the States is to invalidate Paragraph 7 alone, the whole of 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. (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. 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 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 r ; . 'finality' to the decision of the Speaker or the Chairman, as the 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 includes an independent impartial machinery for the adjudication 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- 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) : · 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 certain essential incidents of democracy, it is urged, cannot co. exist. 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 circumstances - a distinction which differentiates a statute from a Charter under which all statutes are made. Cooley on "Constitutional Limitations" says: KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.

] 727 "Upon the adoption of an amendment to a constitution, the 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: "..... to read its language in connection with the known condition 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.......

" 'r The report of the Committee on Defections took note of the unprincipled 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 of the leaders of political parties themselves. Parliament mirrored this widespread concern " [page 1] r , . 14. It was strenuously contended by Shri Ram Jethmalani and Shri 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 defections 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 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: "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 theirsand 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] 15. Shri Jcthmalani and Shri Sharma also relied upon certain observations 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 ~ 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 counsel are those of Lord Shaw of Dunfermline who observed: "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 -- ' 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 Mentbers have llO specialist knowledge. Generally Members will accept 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 H, 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. :,~·. " (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" issued by the political party. The provision, however, recognises two exceptions: one when the Member obtains from the political party prior permission to vote or abstain from voting and the other when the Member has voted \vithout obtaining such permission but his action has been condoned by the political party.

This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting contrary to the direction of the party to which he belongs. This, in itself again, may provide. a clue to the proper understanding and construction of the expression "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 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 this has been the phenomenon in every general elections in this century 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-- and exacts in its own way-loyalty to it. This duality of capacity and functions are referred to by a learned author thus: "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 particular 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 enthusiasm 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 representative finds himself compelled to consider more closely how he should act. Referring to these dilemmas the authors say: "....

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 KIHOTO HOLLORAN v. ZACHILLHU [VENKATACHALIAH, J. J. 737 for his constituents or outside interests or because it reflects 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 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 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 side of the House joining in detailed criticism of the administration 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 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 70J r -" -\ Speaking of the claims of the political party on its elected Member Rodney Brazier says: "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. But the question is whether the balance of a Member's obligations 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 • still beingput 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 conventionally established macltinery of political organisation in the house, and has been niled not to infringe a Member's parliame11tary 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] The learned author, referring to cases in which an elected Member 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 ofa recallpower 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 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 until the next gener I election. A cleaner and more timely parting of the ways would be preferable. Sometimes suspended sentence does not meet the case. " [pages 52 and 53] '!

' '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 disqualfication for defection. Unprincipled defection is a political and social evil. It is perceived as such by the legislature. People, apparently, have grown 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 the practical need to place the proprieties of political and personal con- 1' ' \ duct-- whose awkward erosion and grotesque manifestations have been the 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 Constiiution and all means which are appropriate, which are adopted to that end... " are constitutional. [See Kazurbac/1 v. Morgan: 384 US 641]. _. - ' 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.

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 unprincipled 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 Parliamentary 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 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 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 ofjudicial power the broad considerations are that provisions which seek to exclude Courts' jurisdiction 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 the Courts in certain matters and to depriow the aggrieved party 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 ofState, AIR 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 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 the subject. A comparison of the provisions of the Constitution (Thirtysecond Amendment) Bill, 1973 and the Constitution (Forty-eight Amendment) 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 Constitution (32th and 48th Amendment) Bills contained similar provisions for KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J. ] 743 ----- i~ncd to them, as for example, in relation to the fundamental rights guaranteed in Part Ill of the Cnnstitution 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 'H 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 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 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 ofA11dhra Pradesh & Anr. , [1987] 1 SCR 879. 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 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 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 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 legislatures of the States is the amendment seeking to make the change in the provisions referred to in clauses (a) to (e) of the proviso. The need for and the requirement of the ratification is confined to that particular amendment alone and not in respect of amendments outside the. ambit of the proviso. The proviso can have, therefore, no bearing on the validity of the amendments which do not fall within its ambit. Indeed the following 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 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) 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-precedent for the presentation of the Bill for the assent of the President. It is 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.

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 age 274 held: "........ The finality given by clause (3) of Article 311 to the disciplinary authority's decision that It was not reasonably prac- 8 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 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)•.... ;" 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 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 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 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 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. 36.

The cognate questions are whether a dispute of the kind envisaged 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 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 pertaining 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, the idea appears to have started with the proposition that the Constitution of the House was itself a matter of privilege of the House. Halsbury lllllt contains this statement: . / ~ "1493, Privilege of the House of Commons in relation lo its constitution: In addition to possessing a complete control over 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. " (emphasis supplied) 't- , ; (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 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. 37. In Indira Nehru Gandhi v. Raj Narain, (1976) 2. SCR 347 Beg J. , 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 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 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, elections, and it should be decided as to how these laws and rules . are to be made; (2) there should be an executive charged with 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) "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 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 ofArticle 329(b). " (emphasis supplied) [p. 506] -~ It is also . useful to recall the following observations of Gajendragadkar J. , on rhe scope of Article 194(3) of the Constitution, which is analogous 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 subsisted at the commencement of the Constitution, i. e. , on January 26, 1950. It is.

well-known that out of a large number 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 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 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?

" (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 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 Federation 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 ofIndia, 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 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 under Paragraph 6(1) is preeminently of a judicial complexion. 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) respectively. This attracts an immunity from mere irregularities of procedures.

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 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 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 Ltd. v. Shyam Sunder Jhunjhunwala & Ors. , [1962] 2 SCR 339. In that case Hidayatullah, J. said: "..... 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 judicature. 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 distinction 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] 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: "..... 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 affirmation 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...... " (p.

386 and 387) By these well-known and accepted tests of what constitute 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, 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 tribunal, as indeed we have held it to be, why, then, should its scope be so 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 Constitution. 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 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 certio,rari jurisdiction, the courts have applied the' test whether the impugned 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 ) ' 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 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. ' In Mak/ion Singh v.

Siate of Punjab, [1964] 4 SCR 797, while considering 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) 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 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 proclamation 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). In this context, Bhagwati, J (as the learned Chief Justice then was) 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 unjustified, 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 accordance with the provisions of the Constitution. Can the so called satisfaction of the President in such a case not be challenged KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J. ] 767 ,.. --- ---_... 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 powerlessto strike 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 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 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 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. ..... 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 adjudicatory power i. e. Speaker/Chairman, judicial review cannot be available at a stage prior to the making of a decision by the Sp. eaker/Chairman and 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- ~ . 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 additional 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 mandates, 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 explained in Keshav Sing/i's Case Sp!. Ref. No. 1, [1965) 1 SCR 413, to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words "be deemed to be proceedings in Parliament" 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 suspensions which may have grave, immediate and irreversible 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 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. 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 political party cannot be impartial and, at all events, his functioning will not be free from reasonable likelihood of bias. 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. 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 jurisdiction in the Speaker would by itself stand vitiated as denying the idea of an independent adjudicatory authority.

We are afraid the criticism that the 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 Parliamentary traditions. The evolution of the institution of Parliamentary democracy has as its pivot the institution ~f the Speaker. 'The Speaker holds a high, important and ceremonial office. All questions of the well being of the House KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALWI, J. ] 771 are matters ofSpeaker's concern'. The Speaker is said to be the very embodiment of propriety and impartiality. He performs wide ranging functions including the performance of important functions of a judicial character. 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 in the concept of parliamentary democracy and the powers and duties of the Speaker. ·Once a person is elected Speaker, he is 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 intentionally do no injustice or show partiality. "Such a person is naturally 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 Speaker 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 ofthe 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 - -~ the House of Commons are authority and impaniality. As a symbol of his authority he is accompanied by the Royal Mace 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 fortified by many special powers which are referred to below. Confidence in the impartiality of the Speaker Is an indispensable 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] • M. N. Kaul and S. L.

Shakdher in 'Practice and procedure of 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 political career, and to that effect he may also resign from the party to which he belonged. " [p. 104] 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 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. 47. Accordingly, the contention that the vesting of adjudicatory functions 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. 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 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 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.

said: "If the expression : "any direction" is to be literally construed then it would make the people's representative a wholly political party's representative, which decidedly he is not. The Member would virtually lose his identity and would become a rubber 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 ofthe 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 •"ff;:.

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- I 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 subparagraph (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 "any direction" would 'cost it its cons. titutionality' does not commend to us.

KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J. ] 775 But we approve the conclusion that these words require to be construed 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 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 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 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 )"'· 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 disapproval of the programme of the basis of which he went before the electorate 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.

, termination of the membership of a House; it would be appropriate that the direction or whip which results in such disqualification under Paragraph 2(1)(b) is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the disqualification under Paragraph 2(1)(b) of the Tenth Schedule so that th. e member concerned has fore-knowledge of the consequences flowing from 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 "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 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 which the question arises in the context of its particular facts. No hypothetical predications can or need be made. We, accordingly, leave this question open to be decided in an appropriate case. 51. Before parting with the case, we should advert to one other circumstance. During the interlocutory stage, the constitution bench was persuaded to make certain interlocutory orders which, addressed as they were to the Speaker of the House, (though, in a different capacity as an adjudicatory forum under the Tenth Schedule) engendered complaints of disobedience culminating in the filing of petitions for initiation of proceedings of contempt against the Speaker.

It was submitted that when the very question 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 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 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 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 the Tenth Schedule inserted by the Constitution (Fifty-Second Amendment) 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 Constitulion (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 irreversible 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 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 the hearing on November 1, 1991, we indicated that the operative conclusions would be pronounced by us at the next sitting of the Bench when it assembled on November 12, 1991 after the Diwali Vacation. The operative ·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 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 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 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 remaining 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 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 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 - 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 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 constitutionality of an impugned statute. We have ventltred 011 these 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, 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 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 legislatore 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 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 y to accept its binding effect when the decision is rendered b~ this Court. It 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 la