KIHOTO HOLLOHAN v. ZACHILLHU AND OTHERS

A

NOVEMBER 12, 1991/FEB. 18, 1992

B

Constitlllion of India, 1950:

Articles 102(2). !91(2), Temh Sched11/e inserted by Constit11tion (Fifty- c 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

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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. c Adnzinistrative Laiv :

Judicial review-Statute-Finality and ouster clauses-Meaning, object and scope of

Practice & Procedure : D

Interlocutory orders-Purpose of.

H1ords and Phrases :

'Ad111inistration of Justice', 'Court', 'final' and 'Tribunal' 111ea11ing of. 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 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 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.

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. D 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

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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- or -.tJH1111HS lqlslature eavl1111ged in Articles 122 and 212 and further . exchi111111· tlie CO.rt's Jurisdiction under Paragraph 7; that no question of c 1111ster ofJndldal 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 to bring about a valid amendment or would Paragraph 7 alone be in- G 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

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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

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

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(ii) There is nothing in the proviso to Article 368(2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the amendment requires ratification from the rest of the provisions of such Bill which do.not attract and require such 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, to the extent of its provision which are amenable to the legal-sovereign of the amending process of the Union Parliament cannot be over borne by the proviso to Article 368(2) which cannot operate in that area. [712B-C]

(iv) 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] G (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- 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 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 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 --{ 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) G (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]

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(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 c (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 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] F

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 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

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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 as a logical-whole. [726D-E] >-..__ c 1.4. The distinction between what is constitutionally permissible and what is outside it is marked by a 'hazy-gray line' and it is the Court's duty to identify, "darken and deepen" the demarcating line of constitutionality - a task in which some element of Judges' own perceptions of the constitutional ideals inevitably participate. There is no single litmus test of constitutionality. Any suggested sure decisive test, might after all furnish a "transitory delusion of certitude" where the "complexities of the strands in the web of constitutionality which the Judge must alone 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 legislative element in all constitutional adjudications. [730D-F]

"77ieol) of Tons'! A111erica11 Law Revie111 7 [1873); Justice Oliver Wen- 1 del Holmes- Free Speech and the Living Co11stitutio11 by H.L. Pohlman 1991- Edn. p.223, referred to. F 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 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 or abstains from voting contrary to "al'l.y direction~" issued by the political

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_,.. 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- whose awkward erosion and grotesque manifestations have been the bane of D 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 ~-

A, of a Member is not an 'absolute freedom. That apart, the provisions of the F 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

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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 Courts. The purpose of the enactment of Paragraph 7, as the debates in the D 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.

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- 3.1. The criterion for determining the constitutional validity of a law is the competence of the law making authority (which would depend on the ambit of the Legislative power and the limitations imposed thereon as also on mode of exercise of the power). While examining the constitutional validity 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, 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 exercise of the amending power and exclude some areas from its ambit. Procedural limitations are those which impose restrictions with regard to the mode of exercise of the amending power, e.g. the limitation requiring a special majority under Article 368(2) of the Constitution is a procedural one. Both these limitations, however, touch and affect the constituent power itself, and impose a fetter on the competence of Parliament to amend the Constitution ~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 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

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·""' - 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- cipality, (1944) 71 I.A. 113 and Commissioner of Income Tax, Mysore v. B 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]

Bribery Commissioner v. Pedrick Ranasinghe, 196? A.C. 172, referred to. F ,__... 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 one-half of the States before the Bill is presented to the President for G assent contained in the proviso. [753D-EJ

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

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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 not the part of the law and whether after severance what survives can stand independently and is workable. [753G]

· 3.11. The main purpose underlying the Constitutional (Fifty-Second Amendment) Act and introduction of the Tenth Schedule is to curb the evil of defection which was causing immense mischief in our body-politic. The ouster of jurisdiction of Courts ·under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedµle if it had known that Paragraph 7 was not valid. Nor can it be said that the rest of the provisions of the Tenth Schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 is 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]

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.

E 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 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.

H 5.2. The finality clause with the word "6nal" in paragraph 6(1) of 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. D ..,. 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 E 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] 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 G 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 H

p. 702 Copy page pinpoint

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 ofRaja.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 ofthat 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

p. 703 Copy page pinpoint

. 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 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 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, 777A] F 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 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

p. 704 Copy page pinpoint

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 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 F 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

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

' perversity and,therefore, justiciable to that extent. [789C-DJ . as a result of which it would be vulnerable on the ground of i'llegality and

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 and ordinarily mean that this provision supersedes any other provision c 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- r: ..... 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 disappearance of the cause of action which enables invoking the remedy G 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 ofIndia & 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

C 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 of the Supreme Court under Articlo 136 and that ofthe·High Courts under 4 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

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] F 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 presented to the President for his assent without the prior ratification by • H the specified number of State Legislatures. [795C-E]

p. 707 Copy page pinpoint

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; B 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 c Kesavananda Bharati v. Sfate ofKera/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 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] G 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 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]

R.M.D. Chamarbaughwalla v. The Union of India, (1957) SCR 930, F 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

H disqualifications of members that true reflection of the electoral mandate and governance by rule of law essential for democ~acy can be ensured. [803E-GJ -

p. 709 Copy page pinpoint

8.2. In the democratic pattern adopted by our Constitution, not obly 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), c clearly indicates that all disqualifications of Members were contemplated within the scope of Articles 102 and 191. All disqualification including. disqualification on the ground of defection, in our constitutional scheme, are, therefore, different species of the same genus, namely, 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 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]

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

p. 710 Copy page pinpoint

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 against Bias are : Nemo judex in causa sua - 'A Judge is disqualified from B 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]

ORIGINAL JURISDICTION: Transfer Petition (Civil) No. 40 of 1991. F 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 Suni! Kr.Jain for the Petitioner

Ejaz Maqbool and Markand D. Adkar for the Respondents. r-