KIHOTO HOLLOHAN v. ZACHILLHU AND OTHERS

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

• (2) No Member of Parliament. shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no .person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, B votes or proceedings."

The freedom of speech of a Member is not an absolute freedom. That apart, the provisions of the Tenth Schedule do not purport to make a Mem· her of a House liable in any 'Court' for anything said or any vote given by him c in Parliament. It is difficult to conceive how Article 105(2) is a source of immunity from the consequences of unprincipled floor-crossing.

Secondly, on the nature and character of electoral rights this Court in Jyoti Basu & Ors. v. Debi Gltosa/ & Ors., (1982] 3 S.C.R. 318 observed: D "A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Com- moo Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be E elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation."

(Page 326]

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

"'' , particular brand or system of Government by itself, has this attribute of a basic feature, as long as the essential characteristics that entitle a system of government to be called democratic are otherwise satisfied is not necessary to be gone into. Election conducted al regular, prescribed inter· '"''' is essential to the democratic system envisaged in the Constitution. So is the need to protect and sustain the purity of the electoral process. That G may take within, it the quality, efficacy and adequacy of the machinery for resolution of electoral disputes. From that it does not necessarily follow that the rights and immunities under sub-article (2) of Article 105 of the

-- Constitution, are elevated into fundamental rights and that the Tenth Schedule would have to be struck down for its inconsistency with Article H

p. 734 Copy page pinpoint

A 105 (2) as urged by Shri Sharma.

19Copy pinpoint19. Parliamentary democracy envisages that matters involving im- plementation of policies of the Government should be discussed by the elected representatives of the people. Debate, discussion and pursuasion are, therefor, the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging to the same political party may also have, and may give expres- sion to, differences of opinion on a matter. Not unoften the view expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy. At times such an expression of views during the debate in the House may lead to voting or abstenance from voting in the House otherwise than on party lines.

D But a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and con- certed action of its Members in furtherance of those commonly held prin- ciples. Any freedom of its Members to vote as they please independently of the political party's declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the E ultimate analysis, is its source of sustenance -- nay, indeed, its very survival. Intra-party debates are of course a different thing. But a public image of disparate stands by Members of the same political party is not looked upon, in political tradition, as a desirable state of things. Griffith and Ryle on "Parliament, Functions, Practice & Procedure" (1989 Edn. page 119) say:

F ~ "Loyalty to party is the llOnn, beillg based Oil shared beliefs. A > ' divided party is looked Oil with suspicioll by the electorate. It is natural for Members to accept tl1e opinioll of tlteir Leaders alld Spokesnten on the wide van·ety of nzatters on ivhich those Ment- bers have llO specialist knowledge. Generally Members will ac- G cept majority decisions in the party even when they disagree. It is understandable therefore that a Member who rejects the party whip even on a single occasion will attract attention and more criticism than sympathy. To abstaill from voting whell required by party to vote is to suggest a degree of unreliability. To H, vote against party is disloyalty. To join with others i11 abstention

p. 735 Copy page pinpoint

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

Clause (b) of sub-para (1) of Paragraph 2 of the Tenth Schedule gives effect to this principle and sentiment by imposing a disqualification on a Member who votes or abstains from voting contrary to "any directions" B issued by the political party. The provision, however, recognises two excep- tions: one when the Member obtains from the political party prior permission to vote or abstain from voting and the other when the Member has voted \vithout obtaining such permission but his action has been condoned by the political party. This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting contrary to the direction of the party to which he belongs. This, in itself again, may provide. a clue to the proper understanding and construction of the expres- sion "Any Direction" in clause (b) of Paragraph 2(1) whether really all directions or whips from the party entail the statutory consequences or whether having regard to the extra-ordinary nature and sweep of the power 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.

20Copy pinpoint20. The working of the modern Parliamentary democracy is complex. E 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 F 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 G except the four in. the years 1900, 1918, 1931 and 1935.

But in the area of the inter-relationship between the constituency and its elected representative, it is the avowed endeavour of the latter to requite ·the expectations of his voters. Occasionally, this might conflict with his political obligations to the political party sponsoring him which expects-- H

p. 736 Copy page pinpoint

A 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 B cross against the name of the candidate he is [most often! consciously performing two functions: seeking to return a par- ticular person to the house of commons as Member for that constituency; and seeking to return to power as the government of the country a group of individuals of the same party as that c 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. D 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 E leanings of his constituents for he represents those who voted against him or who did not vote at all as much. as those who voted for him. Even if he ;trongly disagrees with their complaint he may still seek to represent it, though the degree of en- thusiasm with which he does so is likely to be les~ great."

F [See: Parliament-Functions, Practice and Procedures by JAG Griffith and Ryle - 1989 Edn. page 69] ·

So far as his own personal views on freedom of conscience are concerned, there may be exceptional occasions when the elected repre- G sentative finds himself compelled to consider more closely how he should act. Referring to these dilemmas the authors say:

" .... 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 H 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 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 D side of the House joining in detailed criticism of the administra- tion and yet voting lo maintain that Government in office. But as one prominent critic of government has said, thereis nothing inherently contradictory in a Member sustaining the Executive in its power or helping it to overcome opposition at the same E time as scrutinising the work of the executive in order both to' improve it and to see that power is being exercised in a proper and legitimate fashion."

[pages 69 and 70 J

- r" -\ Speaking of the claims of the political party on its elected Member F

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. G But the question is whether the balance of a Member's obliga- tions has tilted too far in favour of the requirements of party. 17te nonsense that a Wliip--even a three-line whfp--is no more ...... tlran a sununons to attend the House, and _that, once there, the' Member is completely free to speak a11d vote as he thinks fit, was H

p. 738 Copy page pinpoint

A still being put about, by the Parliamentary Private Secretary to the Prime Minister, as receiltly as 1986. No one can ltonestly believe tltat. Failure to vote with his party on a three-line whip without permission invites a party reaction. This will range (depending on the circumstances and whether the offence is repeated) from a quiet word from a Whip and appeals to future loyalty, to a B ticking-off or a formal repraimand (perhaps from the Chief

c Whip himsel!), to any one of a number of threats. The armoury of intimidation includes· the menaces that the Member will never get ministerial office, or go on overseas trips sponsored by the party, or be nominated by his party for Commons Committee Memberships, or that he might be deprived of his , party's whip in the House, or that he might be reported to his constituency which might wish to consider his behaviour when reselection comes round again ..... Does the Member not enjoy the Parliamentary privilege of freedom of speech? How can his speeclt be free in the face of such party threats? Tire answer to tire inquiring citizen is tltat the whip system is part of tire conven- tionally established macltinery of political organisation in the house, and has been niled not to infringe a Member's parliame11- tary privilege in any way. The political parties are only too aware of the utility of such a system, and would fight in the last ditch to keep it."

(See; Constitutional Reform-Reshaping the British Political System by Rodney Brazier, 1991 Edn. pages 48 and 49]

F The learned author, referring to cases in which an elected Member 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: G "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 H that the action taken against him by the house (or, indeed, lack

p. 739 Copy page pinpoint

of action) was inadequate .......... Thirdly, the use of a recall power A might be particularly apt when a Member changed his party but declined to resign his seat and fight an immediate by-election. It is not unreasonable to expect a Member who crosses the floor of the House, or who joins a new party, to resubmit himself quickly to the electors who had returned him in different colours. Of B course, in all those three areas of controversial conduct the ordinary process of reselection might well result in the Member being dropped as his party's candidate (and obviously would -~ definitely have that result in th~ third case). But that could only occur when th~·time for reselection came; and in any event the constituency would~ill have the Member representing them c until the next gener I election. A cleaner and more timely parting of the ways would be preferable. Sometimes a suspended sentence does not meet the case."

[pages 52 and 53] D '!' 'Indeed, in a sense an anti-defection law· is a statutory variant of its moral principle and. justification underlying the power of recall. What might justify a provision for recall would justify a provision for disqualfica- tion for defection. Unprincipled defection is a political and social evil. It is perceived as such by the legislature. People, apparently, have grown E distrustful of the emotive political exultations that such floor-crossings belong to the sacred area of freedom of conscience, or of the right to dissent or.of intellectual freedom. The anti-defection law seeks to recognise the practical need to place the proprieties of political and personal con- 1' \ duct-- whose awkward erosion and grotesque manifestations have been the ' F base of the times- above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation. We should, we think, defer to this legislative wisdom. and perception. The choices in constitutional adjudications quite clearly indicate the need for such deference. "Let the end be legitimate, let it be within the scope of the Constiiution and all means which are appropriate, which are adopted to G that end... " are constitutional. [See Kazurbac/1 v. Morgan: 384 US 641].

_. -<[ 21. It was then ocged by Shri Jethmalani that the distinction between the conception of "defection" and "split" in the Tenth Schedule is so thin and artificial that the differences on which the distinction rests are indeed H

p. 740 Copy page pinpoint

A an outrageous defiance oflogic. Shri Jethmalani urged that if floor-crossing by one Member is an evil, then a collective perpetration of it by 1/3rd of the elected Members of a party is no better and should be regarded as an aggravated evil both logically and from the part of its aggravated conse- quences. But the Tenth Schedule, says Shri Jethmalani, employs its own inverse ratiocination and perverse logic to declare that where such evil is perpetrated collectively by an artificially classified group of not less than 1/3rd Members of that political party thal would not be a "defection" but a permissible "split" or "merger". "· This exercise to so hold-up the provision as such crass imperfection is performed by Shri Jethmalani with his wonted froensic skill. But we are afraid what was so attractively articulated, on closer examination, is, per- haps, more attractive than sound. The underlying premise in declaring an individual act of defection as forbidden is that lure of office or money could be presumed to have prevailed. Legislature has made this presumption on its own per_ception and assessment of the extant standards of political proprieties and morality. At the same time legislature envisaged the need to provide for such "floor-crossing" on the basis of honest dissent. That a particular course of conduct commended itself to a number of elected representatives might, in itself, lend credeQCe . and reassurance to a presµmption of bonafides. The presumptive impropriety of motives progressively weakens according as the numbers sharing the action and there is nothing capricious and arbitrary in this legislative perception of the distinction between 'defection' and 'split'.

Where is the line to be drawn? What number can be said to generate ~ F a presumption of bonafides ? Here again the Courts have nothing else to > '

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". G 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 H Legislatures of the States. It does not violate their freedom of

p. 741 Copy page pinpoint

speech, freedom of vote and conscience as contended. A The provisions of Paragraph 2 do not violate any rights or freedom under Articles 105 and 194 of the Constitution.

The provisions are salutory and'1'-'e intended to strengthen the fabric of Indian parliamentary democracy by curbing unprin- B cipled and unethical political defections.

The contention that the provisions of the Tenth Schedule, even with the exclusion of Paragraph 7, violate the basic st~ucture of the Constitution in that they affect the democratic rights of elected Members and, therefore, of the principles of Parliamen- C tary democracy is unsou.nd and is rejected."

22Copy pinpoint22. Re: Contention (B):

The thrust of the point is that Paragraph 7 brings about a change in the provisions of Chapter IV of Part V and Chaptt!r V of Part VI of the D Constitution and that, therefore, the amending Bill falls within proviso to Article 368 (2). We might, at the outset, notice Shri Sibal's submissions on a point of construction of Paragraph 7. Shri Sibal urged that Paragraph 7, prope~ly construed, does not seek to oust the jurisdiction of Courts under Articles 136, 226 and 227 but merely prevents an interlocutory inter.wention or a quia-timet action. He urged that the words "in respect of any matters connected with the disqualification of a Member" seek to bar jurisdiction only till the maner is finally decided by the speaker or Chairman, as the case may be, and does not extend beyond that stage and that in dealing with the dimensions of exclusion of the exercise of judicial power the broad considerations are that provisions which seek to exclude Courts' jurisdic- tion shall be strictly construed. Any construction which results in denying the Courts' is, it is urged, not favoured. Shri Sibal relied upon the following observations of this Court in H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors: v. Union of India, [1971] 1 SCC 85: G " ....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 H

p. 742 Copy page pinpoint

A 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 ............ ".

B "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 c 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." D [page 94-95]

It is true that the provision which seeks to exclude the jurisdiction of Courts is strictly construed. See also, Mask & Co., v. Secretary of State, AIR E 1940 P.C. 105.

But the rules of construction are attracted where two or more reasonably possible constructions are open on the language of the statute. Bu~ here both on the language of Paragraph 7 and having regard to the 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 (Thirty- second Amendment) Bill, 1973 and the Constitution (Forty-eight Amend- ment) Bill, 1978, (both of which had lapsed) on the one hand and the Constitution (52nd Amendment) Bill, 1985, would bring-out the avowed and ~-

deliberate intent of Paragraph 7 in the Tenth Schedule. The previous Con- H stitution (32th and 48th Amendment) Bills contained similar provisions for

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

- disqualification on grounds of defection, but, these Bills did not contain any clause ousting the jurisdiction of the Courts. Determination of disputed dis- qualifications was left to the Election Commission as in the case of other disqualifications under Articles 102 and 103 in the case of members of Par- liament and Articles 191and192 in the case of Members of Legislature of the States. The Constitution (Fifty-second Amendmet) Bill for the first time envisaged the investiture of the power to decide disputes on the Speaker or the Chairman. The purpose of the enactment of Paragraph 7, as the debates in the Houses indicate, was to bar the jurisdiction cif the Courts under Ar- tides 136, 226 and 227 of the Constitution of India. Shri Sibal's suggested -~ contention would go against all these over-whelming interpretative criteria ·apart from its unacceptability on the express language of paragraph 7. c 23, But it was urged that no question of change in Articles 136, 226 and 227 of the Constitution within the meaning of clause (b) of the proviso to Article 368(2) arises at all in view of the fact that the area of these rights and obligations being constitutionally rendered non-justiciable, there is no judi- D cial re\icw under Articles 136, 226 and 227 at all in the first instance so as to admit of any idea of its exclusion. Reliance was placed on the decisions of this 'Y Court in Sri Sa1rkari Pras<1d Singh Deo v. U11io11 of /11dia and Stare of Bilrar, (1952) SCR 89 and Sajjan Si11glt v. State of Rajasrlta11, (1965) 1 SCR 933.

24Copy pinpoint24. In Sankari Prasad's case, the question was whether the Amendment E introducing Articles 31A and 31B in the Constitution required ratification under the said proviso. Repelling this contention it was observed :

"It will be seen that these articles do nOI either in terms or in ~ effect seek to make any change in artick 226 or in articles 132 F J, and 136. Article 31A aims at saving laws providing for the compulsory acquisition by the State of a certain kind of proper- ty from the operation of articles 13 read with other relevant articles in Part Ill, while article 318 purports to validate certain specified Acts and Regulations already passed, which, but for such a provision, would be liable to be impugned under Article G

13. It is not correct to say that the powers of the High Court under Article 226 to issue wrils "for the enforcement of any of . the rights conferred by Part Ill"' or of this Court under Articles ,.. ~ 132 and 136 to entertain appeals from orders issuing or refusing such writs are in any way affected. They remain just the same H

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

- A as they were before: only a certain class of ease has been excluded from the purview of Part III and the courts could no longer interfere, no because their powers were curtailed in an¥ manner or to any extent, but because 'there would be no occasion hereafter for the exercise of their power in such cases." (1982 SCR 89 at 108] B In Sajja11 Si11gh's case, a similar contention was raised against the 'alidity of the Constitution (17th Amendment) Act, 1964 by which Article .l IA was again amended and 44 statutes were added to the IX Schedule to the Constitution. The question again was whether the amendment required c ratification under the proviso to Article 368. This Court noticed the ques- tion thus:

"The question which calls for our decision is: what would be the requirement about making an amendment in a constitution- al provision contained in Part III, if as a result of th~ said D amendment, the powers conferred on the High Courts under Article 226 are likely to be affected?"

E Negativing the challenge to the amendment on the ground of non- ratification, it was held:

" .....Thus, if the pith and substance test is applied· to the amendment made by the impugned Act, it would be clear that Parliament is seeking to amend fundamental rights solely with F the object of removing any possible obstacle in the fulfilment of the socio-economic policy in which the party in power believes. If that he so, the effect of the amendment on the area over which the High Courts' powers prescribed by Article 226 operate, is incidental and in the present case can be described as of an insignificant order. The impugned Act does not pur- G port to change the provisions of Article 226 and it c~nnot be said even to have that effect directly or in any appreciable measure. That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained ...... "

p. 745 Copy page pinpoint

-'"'-' The propositions that fell for consideration is Sa11kari Prasad Singh's A and Sajja11 Singh 's cases are indeed different. There the jurisdiction and power of the Courts under Articles 136 and 226 were not sought to be taken away nor was there any change brought about in those provisions either "in terms or in effect", since the very rights which could be adjudi- cated under and enforced by the Courts were themselves taken away by the Constitution. The result was that there was no area for the jurisdiction of the Courts to operate upon. Matters are entirely different in the context of paragraph 7. Indeed the aforesaid cases, by necessary implication sup- port the point urged for the petitioners. The changes in Chapter IV of Part V and Chapter V of Part VI envisaged by the proviso need not be direct. The change could be. either "in terms of or in effect". It is not necessary c to change the language of Articles ·136 and 226 of the Constitution to attract the proviso. If in effect these Articles are rendered ineffective and made inapplicable where these articles could otherwise have been invoked m would, but for Paragraph 7, have operated there is 'in effect' a change in those provisions attracting the proviso. Indeed this position was recog- D nised in Sajja11 Si11gh's case where it was observed: I "If the effect of the amendment made in the fundamental rights on Article 226 is direct .and not incidental and is of a very significant order, different considerations may perhaps arise.'' E [P.944)

In the present cases, though the amendment does not bring in any :hange directly in the language of Articles 136, 226 and 227 of the Con- stitution, however, in effect paragraph 7 curtails the operation of those Articles respecting matters falling under the Tenth Schedule. There is a F t _,' '. change in the effect in Articles .136, 226 and 227 within the meaning of clasue (b) of the proviso to Article 368(2). Paragraph 7, therefore, attracts the proviso and ratification was necessary.

Accordingly, on Point B, we hold: G "That h.-ing regard to the background and evolution of the principles underlying the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the .J. ~

Tenth Schedule of the Constitution in terms and in effect bring H

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

A about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India and, therefore, the amend: ment would require to be ratified in accordance with the proviso to sub-Article {2) of Article 368 of the Constitution of India."

25Copy pinpoint25. Re: Co11te11tio11s 'C' and 'D':

The criterion for determining the validity of a law is the competence of the law-making authority. The competence of the law-making authority would depend on the ambit of the legislative power, and the limitations imposed thereon as also the limitations on mode of exercise of the power. Though the amending power in a constitution is in the nature of a con- stituent power and differs in content from the Legislative power, th"e limitations imposed on the constituent power may be substantive as well as procedural. Substantive limitations are those which restrict the field of 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. Both these limitations, however, touch and affect the constituent power itself, disregard of which invalidates its exercise.

26Copy pinpoint26. The Constitution provides for amendment in Articles 4, 169, 368, paragraph 7 of Fifth Schedule and paragraph 21 of Sixth Schedule. Article 4 makes provisions for amendment of the First and the Fourth Schedules, Article 169 provides for amendment in the provision of the Constitution which may be necessary for abolition or creation of Legislative Councils in F States, paragraph 7 of the Fifth Schedule provides for amendment of the Fifth Schedule and paragraph 21 of Sixth Schedule provides for amend- ment of the Sixth Schedule. All these provisions prescribe that the said a~endments can be made by a law made by Parliament which can be passed like any other law by a simple majority in the Houses of Parliament. Article 368 confers the power to amend the rest of the provisions of the G Constitution. In sub-Article (2) of Article 368, a special majority-two- thirds of the members of each House of Parliament present and voting and majority of total membership of such House - is required to effectuate the amendments. The proviso to sub-article (2) of Article 368 imposes a further requirement that if any change in the provisions set out in clauses (a) to H (e) of the proviso, is intended it would then be necessary that the amend-

KIHOTO HOLLOHAN ''· ZACHILLHU [VENKATACHALIAH, J.] 747

ment be ratified by the legislature of not less than one-half of the States. A

Although there is no specific enumerated substantive limitation on the power in Article 368, but as arising from very limitation in the word 'amend', a substantive limitation is inherent on the amending power so that the amendment does not alter the basic structure or destroy the basic features of the Constitution. The amending power under Article 368 is B subject to the substantive limitation in that. the basic structure cannot be altered or the basic features of the Constitution destroyed. The limitation r!'quiring a special majority is a procedural one. Both these limitations impose a fetter on the competence of Parliament to amend the Constitution and any aTRcndment made in disregard of these limitations would go c beyond the amend:ng power.

27Copy pinpoint27. While examining the constitutional validity of laws the principle that is applied is that if it is possible to construe a statute so that its validity can be sustained against a constitutional attack it should be so construed and that when part of a statute is \'alid and part is void, the valid part must be separated from the invalid part. This is done by applying the doctrine of severability. The rationale or this doctrine has been explained by Cooley in the following words:

"It will somcrimcs he found that an act or the legislature is opposed in some of its provisions to the constitution, while others, standing by themselves, would be unobjectionable. So the forms observed in passing it may be sufficient for some of the purposes sought to be accomplished by it, but insufficient for others. In any such case the portion which connicts with the constitution, or in regard to which the necessary conditions have not been observed, must be treated as a nullity. Whether the- other parts of the statute must also be adjudged void because of the association must depend upon a consideration of the object of the law, and in what manner and to what extent the unconstitutional portion affects the remainder. A statute, it has been said, is judicially held to be unconstitutional, because it is not within the scope of legislative authority; it may either propose to accomplish something prohibited by the constitu- t:on, or to accomplish some lawful, and even laudable object, by means repugnant to the Constitution of the United States H

p. 748 Copy page pinpoint

A or of the State. A statute may contain some such provisions, and yet the same act, having received the sanction of all brandies of the legislature, and being in the form of law, may - contain other useful and salutary provisions, not obnoxious to any just constitutional exception. ll would be inconsistent with all just principles of constitutional law to adjudge these enact- B ments void because they are associated in the same act, but not connected with or dependent on others which are unconstitu- tional."

· [Cooley's Constitutional Limitations; .8th Edn. Vol. I, p. 359- c 360]

In R.M.D. Chamarbaugwalla v. Union of flldia, [1957] SCR 930, this Court has observed:

D "The question whether a statute, which is void in part is to be treated as void in toto, or whether it is capable of enforcement as to that part which is valid is one which can arise only with reference to laws enacted by bodies which do not possess unlimited powers of legislation, as, for example, the legislatures in a Federal Union. The limitation on their powers may be of two kinds: ll may be. with reference to the subject-matter on which they could legislate, as, for example, the topics enumerated in the Lists in the Seventh Schedule in the Indian Con.stitution, ss. 9l and 92 of the Canadian Constitution, and s. 51 of the Australian Constitution; or it may be with reference lo the character of the legislation which they could enact in respect of ~ubjcL·t1., a~'.'>i~ncd to them, as for example, in relation to the fundamental rights guaranteed in Part Ill of the Cnn- stitution and similar constitutionally protected rights in the An1erican and oth,,:r Constitution.:;. When a legislature \Vho.sc authority i~ ~uhj,,:ct to lin1itations aforesaid enacts a law \vhich is \i.·ho1ly in excess of its po\vcrs. it is entirely void and must he completely ignored. BuJ where the legislation falls in part within the ·area allotted to ii and in part outside it. it is undoubtedly void as to the laller: 1'u1 does it on that account become necessarily void in its l!ntir..:ty? The ans\\'Cr to this 4ucstion must '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 A

of the substantive limitations on the amending power, namely, alteration of B the basic structure. But oniy the offending part of the amendment which had the effect of altering the basic structure was struck down while the rest of the amendment was unheld, See : S/Jri Kesavananda Bharti Sripadagalavant v. State of Kera/a, [1973] Supp. SCR l; Minen•a Mills Ltd. & Ors. v. U11io11 of India & Ors., [19811 1 SCR 206; P. Sambhanrnrthy & Ors, etc. v. State of A11dhra Pradesh & Anr., [1987] 1 SCR 879. C

28Copy pinpoint28. 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<pect of the amendments introduced in provisions referred to in clauses (a) to (e) of proviso to Article 368(2), Parliament alone is not competent to make such amendments on account of some constitutionally recognised federal prin- ciple being invoked. If the doctrine of severability can be applied it can be upheld as valid in respect of the amendments within the competence of Parliament and only the amendments which Parliament alone was not competent to make could be declared invalid. G

29Copy pinpoint29. Is there anything compelling in the proviso to Article 368(2) requiring it to be construed as excluding the doctrine of scvcrability to such an amendment'! It is settled rule of statutory construction lhat "the proper function of a proviso is to Cxccpt and deal \vith a case 'vhich could H

750 SUPREME COURT REPORTS (199211 S.C.R.

A otherwise fall within the general language of the main enactment, and its effect is confined to that case" and that where "the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its express terms". (See : Madras & B Sowhem Malirattu Railway Company v. Bezwada M1111icipality, (1944) 71 I.A. 133 at p. 122; Commissioner of lnconie Tax, '-~vsore v. b1do-Merca111i/e Bank Ltd., IJ959) Supp. 2 SCR 256 at p. 266.

The proviso to Article 368(2) appears to have been introduced with a \·iew lo giving effect to the federal principle. In the matter of amendment C of provisions specified in clauses. (a) to (e) relating to legislative and executive powers of the States vis-a-vis the Union, the Judiciary, the election of the President and the amending power itself, which have a bearing on the States, the proviso imposes an additional requirement of ratification of the amendment which seeks to effect a change in those • D provisions before the Bill is presented fm the assent of the President. It is salutary that the scope of the proviso is confined to the limits prescribed therein and is not construed so as to take away the power in the main part ,,f Article Y.S (2). An amendment which otherwise fulfils the fcquiremcnts of Article 368(2) and is outside the .specified cases which require ratifica- E tion cannot be denied legitimacy on the ground alone of the company it keeps. The main par! of Ar1icle Y.8(2) directs that when a Bill which has been passed by the requisite special majority by both the Houses has reccivcJ the assent of the President "the Constitution shall stand amended in accordance with the terms of the Bill". The proviso cannot have the effect nf interdicting this constitutional declaration and mandate to mean that in a case where the proviso has not been complied- even the amend- ment> which do not fall within lhc ambit of the proviso also become abortive. The words "the amendment shall also require to be ratified by the legislature" indicate that what is required to be ratified by the legisla- tures of the States is the amendment seeking to make the change in the provisions referred to in clauses (a) to (e) of the proviso. The need for and the requirement of the ratification is confined to that particular amend- ment alone and not in respect of amendments outside the. ambit of the proviso. The proviso can have, therefore, no bearing on the validity of the amendments which do not fall within its ambit. Indeed the following observations of this Court in Sujja11 Singh case (supra) arc apposite:

p. 751 Copy page pinpoint

"In our opinion, the two parts of Art. 368 must on a reasonable A construction be harmonised with each other in the sense that the scope and effect of either of them .should not be allowed to be unduly reduced or enlarged."

30Copy pinpoint30. During the arguments reliance was placed on the words "before the Bill making provision for such amendment is presented to the President for assent" to sustain the argument that these words imply that the ratifica- . tiun nf the Bill by not less than one-half of the States is a condition-prece- dent for the presentation of the Bill for the assent of the President. It is C further argued that a Bill which seek.~ to make a change in the provisions referred to in clauses (a) to (e) of the pro,iso cannot be presented before the President for his assent without such ratification and if assent is given by the President in the absence of such ratification, the amending Act would be void and ineffeL1ive in its entirety. D

A similar situation can arise in the context of the main part of Article :11"'8(2) which provides: "when the Bill is passed In each House by a majority nf the total membership of that House and by a majority of not less than two-thirds of the Members of that House present and voting, it shall be presented to the President". Here also a condition is imposed that the Bill £ shall be presented to the President for his assent only after it has been paS<ied in each House by the prescribed special majority. An amendment in the First and Fourth Schedules referable to Article 4 can be introduced hy Parliament by an nrdinary law passed by simple majority. There may be a Bill which may contain amendments made in the First and Fourth F Schedules as well as a'l'cndmcnls in other prO\isions of the Constitution -excluding those referred to in the proviso which can be amended only by a special majority under Article 368(2) and the Bill after having been passed only by an ordinary majority instead of a special majority has received the assent of the President. The amendments which are made in the First and Fourth Schedules by the said amendment Act were validly G made in view of Article 4 but the amendments in other prO\isions were in disregard to Article 368(2) which requires a special majority. Is not the doctrine of severability applicable to such an amendment so that amend- ments made in the First and Fourth Schedules may be upheld while declaring the amendments in the other prmisions as ineffective? A con- H

p. 752 Copy page pinpoint

A trary view excluding the doctrine of severability would result in elevating a procedural limitation on the amending power. to a level higher than the substantive limitations.

31Copy pinpoint31. In Bribery Commissio11er v. Pedrick Ranasi11ghe, (1%5 A.C. 172), the Judicial Committee has had to deal with a somewhat similar situation. B This was a case from Ceylon under the Ceylon (Constitution) Order of

1946. Clause ( 4) of section 29 of the said Order in Council contained the amending power in the following terms:

"(4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of c any other Order of Her Majesty in Council in its application to the Island:

Provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal D a Assent unless it has endorsed on it certificate under the hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two-thirds of the whole number of members of the House (including those not present).

E Every certificate of the Speaker under this sub-section shall be conclusive for all purposes and shall not be questioned in any court of law." [P.194] In that case, it wa' found that section 41 of the Bribery Amendment F Act, 1958 made a provision for appointment of a panel by the Governor- General on the advice of the Minister of Justice for selecting members of the Bribery Tribunal while section 55 of the Constitution .vested the ap- pointment, transfer, dismissal and disciplinary control of judicial officers in the Judicial Service Commission. It was held that the legislature had purported to pass a law_ which, being in conflict with section 55 of the G Order in Council. must he treated, if it is to be valid, as an implied alteration of the Constitutional prrn·isions about the appointment of judi- cial officers and could only he made hv laws which comply with the special kgislative procedure laid down in .,ectiorr 29(4). Since there was nothing to show that the Bribery Amendment Act, 1951 was passed by the neces- H sary two-thirds majority, it was held that "any Bill which does not comply

p. 753 Copy page pinpoint

with the condition precedent of the proviso, is and remains, even though it receives the Royal Assent, invalid and ultra vires". Applying the doctrine of severability the Judicial Committee, however, struck down the offending provision, i.e. section 41 alone. In other words passing of the Bill by special majority was the condition precedent for presentation of the Bill for the assent. Disregard of such a condition precedent for presenting a Bill for assent did not result in the entire enactment being vitiated and the law being declared invalid in its entirety but it only had the effect of invalidation of a particular provision which offended against the limitation on the amending power. A comparison of the language used in clause (4) of section 29 with that of Article 368{2) would show that both the provisions bear a general similarity of purpose and both the provisions require the passing of the Bill by special majority before it was presented for assent. The same principle would, therefore, apply while considering the validity of a composite amendment.which makes alterations in the First and Fourth Schedules as well as in other provisions of the Constitution requiring special majority under Article 368(2) and such a law, even though passed by the simple majority and not by special majority, may be upheld in respect of the amendments made in the First and Fourth Schedules. There is really no difference in principle between the condition requiring passing of the Bill by a special majority before its presentation to the President for . assent contained in Article 368(2) and the condition for ratification of the amendment by the legislatures of not less than one-half of the States before the Bill is presented to the President for assent contained in the proviso. The principle of severability can be equally applied to a composite amend- ment which contains amendments in provisions which do not require ratification by States as weli as amendment iu provisions which require such ratification and by application of the doctrine of severability, the amendment can be upheld in respect of the amendments which do not require ratification and which are within the competence of Parliament alone. Only these amendments in provisions which require ratification under the proviso need to be struck down or declared invalid.

32Copy pinpoint32. The test of ,e,·crability requires the C'!.llft to ascertain whether the legislature would at all have enacted the law if the severed part was not the part of the law and whether after severance what survives can stand independently and is wnrkahle. If the provisions of the Tenth Schedule arc considered in the backgrnun<l of the legislative history. namely, the report of the 'Committee on Defections· as well as the earlier Bills which \Vere H

p. 754 Copy page pinpoint

A moved to curb the evil of defection it would be evident .that the main 1 purpose underlying the constitutional amendment and introduction of the Tenth Schedule is to curb the evil of defection which was causing immense mischief in our body-politic. The ouster of jurisdiction of Courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection. It cannot be said that the con- stituent body would not have enacted the other provisions in the Tenth Schedule if. it has known that Paragraph 7 was not valid. Nor can it be said that the rest of the provisions of the Tenth Schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 can, therefore, be held to be severable from the rest of the provisions.

We accordingly hold on contentions 'C' and 'D':

"That there is nothing in the said proviso to Article 368(2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the Amendment requires ratification from the rest of the provisions of such Bin

l which do not attract and require such ratification. HaviQg regard to the mandatory language of Article 368 (2) that "thereupon the Constitution shall stand amended" the opera- E tion of the proviso shoul~ not be extended to constitutional amendments in Bill which can stand by themselves without such r~tification.

That, accordingly, the Constitution (52nd Amendment) Act, 'l 1985, in so far ·as it seeks to introduce the Tenth Schedule in F the Constitution of India, to the extent of its provisions which are amenable to the legal-sovereign of the amending process of the Union Parliament cannot be overborne by the proviso which cannot operate in that area. There is no justification for the view that even the rest of the provisions of the Constitution (52nd Amendment) Act, 1985, excluding Paragraph 7 of the G Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368(2) was not so ratified. ·

H That Paragraph 7 of the Tenth Schedule contains a provision

r KIHOTO HOLLORAN v. ZACHILLHU [VENKATACHAL!Afl, J.I 755

which is independent of, and stands apart from the main A provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and· unethical political defections and, therefore, is a severable part. The remaining provisions of the Tenth_ Schedule can and do stand inde- pendently of Paragraph 7 and are complete in themselves workable and are not truncated by the· excision of Paragraph B 7."

33Copy pinpoint33. Re: Contentions 'E' and 'F':

These two contentions have certain over-lapping areas between them .C and admit of being dealt with together. Paragraph 6(1) of the Tenth Schedule seeks to impart a statutory finality to the decision of the Speaker or the Chairman. The argument is that, this concept of 'finality' by itself, excludes Courts' jurisdiction. Does the word "final" render the decision of the Speake_r immune from Judicial Review? It is now well-accepted that a finality clause is not a legislative magical incantation which has that effect D of telling of Judicial Review. Statutory finality of a decision presupposes and is subject to its consonance with the statute. On the meaning and effect of such finality clause, Prof. Wade in 'Administrative Law' 6th Edn. at page 720 says:

"Many statues provide th.at some decision shall be final. That E provision is a bar to 'any appeal. But the courts refuse to allow it to hamper the operation of judicial review. As will be seen in this and the following sections, there is a firm ju<licial policy against allowing the rule of law to be undermined by weakening the powers of the court. St~tutory restrictions on judicial F .remedies are given the narrowest possible construction, some- times even against the plain meaning of the words. This is a sound policy, since otherwise administrative authorities and tribunals would be given uncontrollable power and could vio- late the law at will. 'Finality' is a good thing but justice is a G better."

"If a statute says that the decision 'shall be final' or 'shall be final and conclusive to all intents and purposes' this is held to mean merely t.hat there is no appeal: judicial control of legality is unimpaired. "Parliament only gives the impress of finality to H

p. 756 Copy page pinpoint

A the decisions of the tribunal on condition that they are reached in accordance with the law. This has been the consistent doctrine for three hundered years."

Learned Professor further says:

B. "The normal effect of a finality clause is therefore to prevent any appeal. There is no right of appeal in any case unless it is given by statute. But where there is general provision for appeals, for example, from quarter sessions to the High Court by case stated, a subsequent Act making the decision of quarter session final on some specific matter will prevent an appeal. c But in one case the Court of Appeal has deprived a finality clause of part even of this modest content, holding that a question which can be resolved by ce.rtiorari or declaration can eqJally well be the subject of a case stated, since this is only a matter of machinery. This does not open the door to appeals generally, but only to appeals by case stated on matters which could equally well be dealt with by certiorari or declaration, i.e., matters subject to judicial review.

"A provision for finality may be important in other contexts, for example when the question is whether the finding of one tribunal may be reope~d before another, or whether an inter- locutory order is open to appeal ........ ". · (page 721) Lord Devlin had said "Judicial interference with the executive cannot for long greatly exceed what Whitehall will accept" and said that a decision may be made un-reviewable "And that puts the lid on". Commenting on this Prof. Wade says: "But the Anisminic case showed just the opposite, when the House of Lords removed the lid and threw it away." [See: Constitutional Fundamentals, the Hainlyn Lectures, 1989 Edn. p.88).

G In Durga Sha11kar Mehta v. Raghuraj Singh, AIR 1954 SC 520 the order of the Election Tribunal was made final and conclusive bys. 105 of the Representation of the People Act, 1951. The contention was that the finality and conclusiveness clauses barred the jurisdiction of the Supreme Court under Article 136. This contention was repelled. It was observed:

H " ....but once it is held that it is a judi, ial tribunal empowered

p. 757 Copy page pinpoint

and obliged to deal judicially with disputes arising out of or in connection with election, the overriding power of this Court to grant special leave, in proper cases, would certainly be attracted and this power cannot be excluded by any parliamentary legis- lation .

...... But once that Tribunal has made any determination or adjudication on the matter, the powers of this Court to interfere by way of special leave can always be exercised .

...... The powers given by Article 136 of the Constitution, however, are in the nature of special or residuary powers which C ·are exercisable outside the purview of ordil)ary law, in cases where the needs of justice demand interference by the Supreme Court of the land .....

Section 105 of the Representation of the People Act certainly gives finality to the decision of the Election Tribunal so far a.' D that Act is concerned and does ·not provide for any further appeal but that cannot in any way cut down or affect the overriding powers which this court can exercise in the matter of granting special leave under Art. 136 of the Constitution."

34Copy pinpoint34. Again, in Union of India v. Jyothi Prakash Mitter, (1971] 3 SCR 483 a similar finality clause in Articles 217(3) of the Constitution came up for consideration. This Court said:

" ..... The President acting under Article 217(3) performs a judi- F cial function of grave .importance under the scheme of our Constitution. He cannot act -00 the advice of his Ministers. Notwithstanding the declared finality of the order of the Presi- dent the Court has jurisdiction in appropriate cases to set aside the order, if it appears that it was passed on collateral con- G siderations or the rules of natural justice were not observed, or that the President's judgment was coloured by the advice or representation made by the executive or it was founded on no evidence ..... "

758 SUPREME COURT REPORTS (1992) t S.C.R. ~ A Referring t~ the expression •'final" occurring in Article 311(3) of the Constitution t~ Court in Union of India & A111: v. Tulsiram Paid & On. (1985) Supp. 2 SCR 131 at 1>age 274 held:

" ........The finality given by clause (3) of Article 311 to the 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 c was not reasonably practicable to hold the inquiry. If the court finds that the reasons are irrelevant, then the recording or its satisfaction by the disciplinary authority would be an abuse or power conferred upon it by clause (b)•.... ;"

35Copy pinpoint35. If the intendment is to exclude the jurisdiction of the superior D Courts, the langugage would quite obviously have been different. Even so, where such exclusion is sought to be effected by an·amendment the further question whether such an amendment would be destructive of a basic feature or the Constitution would arise. But comparison of the language in Article 363(1) would bring out in contrast the kind of language that may E be necessary lo achieve any such purpose.

In Brnndaba11 Nayak v. E/ectio11 Commissio11 of India & A11r., (1965) 3 SCR 53, in spite of finality allached by Article 192 lo the decision of the Governor in respect of disqualification incurred· by a member or a. Staie Legislature subsequent to the election, the mailer was examined by this F 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 G High Court under Article 217 (3) of the Constitution, this Court examined the legality of the order pa"cd by the President during the pendency of an appeal filed under Article 1'6 or ihe Constitution.

There is authority against the acceptability of the argument that the H word "final" occurring in Paragraph 6(1) has the effect of excluding the

KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.) 759 -~ jurisdiction of the Courts in Articles 136, 226 and 227. A

36Copy pinpoint36. The cognate questions are whether a dispute of the kind en- visaged by Paragraph 6 of the Tenth Schedule is in a non-justiciable area and that, at all events, the fiction in Paragraph 6(2) that all proceedings under Paragraph 6(1) of the Tenth Schedule be deemed to be "proceedings in Parliament" or "Proceedings in the Legislature of a State" attracts B immunity from the scrutiny by Courts as under Article 122 or 212, as the case may be. -~ Implicit in the first of these postulates is the premise that questions of disqualification of members of the House are essentially matters per- taining to the Constitution of the House and, therefore, the Legislature is c 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 D 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 E the regulation of its own proceedings and the conduct of its members, the House of Co111111011s claims the exclusive rig/it of providing, .as it nzay deeni fit, for its own proper constitution."

(emphasis supplied) 't- , ; F (See: Halsbury's Laws of England, 4th· Edn. Vol. 34 pages 603 & 604)

But in the Indian Constitutional dispensation the power to decide a disputed disqualification of an elected member of the House is not treated as a matter of privilege and the power to resolve such electoral disputes is G clearly judicial and not legislative in nature. The fact that election disputes

'' "' 'were at some stage decided by the House of Commons itself was not· conclusive that even their power was legislative. The controversy, if any, in this area is. put at rest by the authoritative earlier pronouncements of this Court. H

p. 760 Copy page pinpoint

37Copy pinpoint37. 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 B "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. c 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 D had certainly not exercised a jucjicial power as a successpr to the <>ne time jurisdiction of the "King in Parliament" with the possible exc;eption of the power to punish for its contempts ......" (p. 627 & 628) \ '·· In the same case, Justice Mathew made these observations as to the E Imperative judicial nature of the power to resolve disputes: "The concept of democracy as visualised by the Constitution presupposes the representation of the people in Parliament and · State Legislatures by the method of election. And, before an election machinery can be brought into operation, there are -4 F three requisites which require to be attended lo, namely, 0) > ' there should be a set of laws and rules making provisions with respect to all matters relating to, or in connection with, elec- tions, and it should be decided as to how these laws and rules .are to be made; (2) there should be an executive charged with G the duty of securing the due conduct of elections; and {3) there should be a judicial tribunal to deal with disputes arisi11g out of or in connection with elections..... "

H "In whichever body or authority, the jurisdiction, is vested, the

p. 761 Copy page pinpoint

exercise of the jurisdiction must be judicial in character. 171is A court has held that in adjudicating an election dispute an authority is peifonning a judicial function and a petition for leave to appeal under Article 136 of the Constitution would lie to this Court against the decision notwithstanding the provisions of Ar- ticle 329(b ). " 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 sub- sisted 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?" G

(See page 442)

This question is answered by Beg, J. in Indira Nehm Gandhi's case: .... "1 think, at the time our Constitution was framed, the decisipn H

p. 762 Copy page pinpoint

A 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."

38Copy pinpoint38. 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: c "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 D 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- . E diction of the Speaker or the Chairman in the Tenth Schedule is not a judicial power and is within the non-justiciable legislative area. The classic exposition of Justice Issacs J., in Australian Boot Trade Employees Federa- tion v. Whybrow & Co., [1910] 10 CLR 226 at page 317, as to what distinguishes a judicial power from a legislative power was referred to with the approval of this Court in Express Newspaper Ltd. v. Union of India, AIR 1958 SC 578 at 611. Issacs J ., stated: ' ' "If the dispute is as to the relativedghts of parties as they rest on past or present circumstances, the award is in the nature of a judgment, whicli might have been the decree of an ordinary jur!icial tribunal acting under the ordinary judicial power. There the law applicable to the case must be observed. If, however, the dispute is as to what shall in the future be the mutual rights and responsibilities of the parties-in other words, if no present rights are asserted or denied, but a future rule of conduct is to be prescribed, thus creating new rights and obligations, with

KIHOTO HOLLORAN v. ZACHILLHU [VENKATACHAL!AH, J.J 763

sanctions for non-conformity then the determination that so 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. C

39Copy pinpoint39. The fiction in Paragraph 6(2), indeed, places it in the first clause of Article 122 or 212, as the case may be. The words "proceedings in Parliament" or "proceedings in the legislature of a State" in Paragraph 6(2) have their corresponding expression in Articles 122(1) and 212(1) respec- tively. This attracts an immunity from mere irregularities of procedures. D

That apart, even after 1986 when the Tenth Schedule was introduced, the Constitution did not evince &ny intention to invoke Article 122 or 212 in the conduct of resolution of disputes as to the disqualification of members under Articles 191(1) and 102(1). The very deeming provision implies that the proceedings of disqualification are, in fact, not before the E 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.

40Copy pinpoint40. 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 H

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A 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 B 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, c and the residue goes before the ordinary courts of civil judica- ture. Their procedures may differ, but the functions are not essentially different. What distinguishes them has never been successfully established. Lord Stamp said that the real distinc- tion is that the courts have "an air of detachment". But this is more a matter of age and tradition and is not of the essence. D Many tribunals, in recent years, have acquitted themselves so well and with such detachment as to make this test insufficient."

E Where there is a lis - an affirmation by one party and denial by • another- and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is a exercise of judicial power. That authority is called a Tribunal, if it does not have all the trappings of a Court. In Associated Cement Compa11ies Ltd. v. P.N. Shanna and Anr., [1965] 2 SCR 366, this Court said: F " ..... 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 G be no doubt that the power which the State Government exercises under R.6(5) and R. 6(6) is a part of the State's judicial power..... There is, in that sense, a lis; there is affirma- tion by one party and denial by another, and the dispute necessarily involves the rights and obligations of the parties to ,.. "

H it. The order which the State Government ultimately passes is

\ KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.) 765 ---' described as its decision and It is made final and.binding......" A

(p. 386 and 387)

By these well-known and accepted tests of what constitute a Tribunal, the Speaker or the Chairman, acting under paragraph 6(1) of the Tenth Schedule is a Tribunal. B •

41Copy pinpoint41. In the operative conclusions we pronounced on 12th November, 1991.we indicated in clauses and therein that judicial review in the area is limited in the manner indicated. If the adjudicatory authority is a tribunal, as indeed we have held it to be, why, then, should its scope be so lim~ed? The finality clause in paragraph 6 does not completely exclude the jurisdiction of the courts under Articles 136, 226 and 227 of the Constitu- tion. But it does have the effect of limiting the scope of the jurisdiction. . The principle that is applied by the courts is that in spite of a finality clause it is open to the court to examine whether the action of the authority under 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 im- pugned action falls within the jurisdiction of the authority taking the action or it falls outside such jurisdiction. An ouster clause confines judicial review in respect of actions falling outside the jurisdiction of the authority ~ taking such action but precludes challenge to such action on the ground of F ) ' an error committed in the exercise of jurisdiction vested in the authority because such an action cannot be said to be an action without jurisdiction. An ouster clause attaching finality to a determination, therefore, does oust certiorari to some extent and it will be effective in ousting the power of the court to review the decision of an inferior tribunal by certiorari if the inferior tribunal has not acted without jurisdiction and has merely made an G error of law which does not affect its jurisdiction and if its decision is not a nullity for some reason such as breach of rule of natural justice. See : Administrative Law by H.W.R. Wade, 6th Edn., pp. 724-726; Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147; S.E. Asia Fire Bricks v. Non-Metallic Products, (1981) A.C. 363. H'

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A In Mak/ion Singh v. Siate of Punjab, [1964] 4 SCR 797, while con- sidering the scope of judicial review during the operation of an order passed by the President under Article 359 (1) suspending the fundamental right guaranteed under Article 21 of the Constitution, it has been held that the said order did not preclude the High Court entertaining a petition under Article 226 of the Constitution where a detenu had been detained B in violation of the mandatory provisions of the detention law or where the detention has been ordered ma/a fide. It was emphasised that the exercise of a power ma/a fide was wholly outside the scope of the· Act conferring the power and can always be successfully challenged. (p. 828)

C Similarly in State of Rajasthan v. Union of India, [1978) 1 SCR 1, decided by a seven-judge Bench, this Court was considering the challenge to the validity of a proclamation issued by the President of India under Article 356 of the Constitution. At the relevant time under Clause (5) of Article 356, the satisfaction of the President mentioned in clause (1) was D final and conclusive and it could not .be questioned in any court on any ground. All the learned judges have expressed the view that the proclama- tion could be open to challenge if it is vitiated by ma/a [Ides. While taking this view, some of the learned judges have made express reference to the provisions of clause (5).

E In this context, Bhagwati, J (as the learned Chief Justice then was) speaking for himself and A.C. Gupta, J. has stated:

"Of course by reason of cl. (5) of Art. 356, the satisfaction of the President is final and conclusive and cannot be assailed on any ground but this immunity from attack cannot apply where the challenge is not that the satisfaction is improper or unjus- tified, but that there is no satisfaction at all. In such a case it is not the satisfaction arrived at by the President which is challenged, but the existence of the satisfaction itself. Take, for example, a case where the President gives the reason for taking action under Art. 356, cl. (1) and says that he is doing so, because the Chief Minister of the State is below five feet in height and, therefore, in his opinion a situation has arisen where the Government of the State cannot be carried on in accord- ance with the provisions of the Constitution. Can the so called satisfaction of the President in such a case not be challenged

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,.. ---< on the ground that it is absurd or perverse or ma/a fide or based on a wholly extraneous and irrelevant ground and is, therefore, no satisfaction at all." (pp. 82-83)

'Untwalia, J. has held as follows:

"I, however, must hasten to add that I cannot persuade myself to subscribe to the view that under no circumstances an order of proclamation made by the President under Article 356 can be challenged in a Court of Law. And, I am saying so· not- - _.,. withstanding the provision contained in clause. (5) of the said Article introduced by the Constitution (38th Amendment) Act, c 1975." (p. 94)

"But then, what did I mean by saying that a situation may arise in a given case where the jurisdiction of the Court is not completely ousted ? I mean this. If, without entering into the prohibited area, remaining on the fence, almost on the face of D the impugned order or the threatened action of the President it is reasonably possible to say that in the eye of law it is no order or action as it is in flagrant violation of the very words of a particular Article, justifying the conclusion that the order is ultra vires, wholly illegal or passed ma/a fide, in such a E situation it will be tentamount in law to be no order at all. Then this Court is not powerless to interfere with such an order and may, rather, must strike it down." (p. 95)

Similarly, Fazal Ali, J. has held : "- F ) . "Even if an issue is not justiciable, if the circumstances relied upon by the executive authority are absolutely extraneous and irrelevant, the Courts have the undoubted power to scrutinise such an exercise of the executive power. Such a judicial scrutiny is one which comes in~o operation when the exercise of the executive power is colourable or ma/a fide and based on ex- G traneous or irrelevant considerations." (p. 116)

"It is true that while an order passed by the President under - .. Article 356 is put beyond judicial scrutiny by cl. (5) of Art. 356, but this does not mean that the Court possesses no jurisdiction H

p. 768 Copy page pinpoint

:>---_... A in the matter at all. Even in respect of cl. (5) of Art. 356, the Courts have a limited sphere of operation in that on the reasons given by the President in his. order if the Courts fmd that they / are absolutely extraneous and irrelevant and based on personal and illegal considerations the Courts are not powerless to strike down the order on the ground of ma/a fide if proved." (p. 120) B In Union of India v. Jyoti Prakash Mitter (supra); dealing with the decision of the President under Article 217 (3) on th6 question as to the age of a: judge of the High Court, requiring a judicial approach it was held that the field of judicial review was enlarged to cover violation of rules of ,., c natural justice as well as an order based on no evidence because such · errors are errqrs of jurisdiction.

In Union of India & Anr. v. Tulsirom Patel & Ors. {supra) this Court . w~ dealing with Article 311 {3) of the Constitution which attaches finality to the order of the disciplinary authority on the question whether it was 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. F ..... In view of the limited scope of judicial review that is available on • ' account of the finality clause in paragraph 6 and also having regard to the constitutional intendmcnt and the status of the repository of the ad- judicatory power i.e. Speaker/Chairman, judicial review cannot be available at a stage prior to the making of a decision by the Sp.eaker/Chairman and G a q11ia timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings. Exception will, however, have to be made in respect of cases where disqualification or suspension' is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irre- ~ . H versible repurcussions and consequence.

KIHOTO HOLLORAN v. ZACHILLHU (VRNKATACHALIAH, J.) 769

42Copy pinpoint42. In the result, we hold on contentions E and F : A That the Tenth Schedule does not, in providing for an addi- tional grant for disqualification and for adjudication of disputed disqualifications, seek to create a nonjusticiable constitutional area. The power to resolve such disputes vested in the Speaker or Chairman is a judicial power. B

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 c so far as infirmities based on violations of consitutional man- dates, ma/a fides, non-compliance with Rules of Natural Justice and perversity, are concerned.

That the deeming provisioll in Paragraph 6(2) of the Tenth D Schedule attracts an immunity analogous to that in Articles '-;. 122( 1) and 212( 1) of the Constitution as understood and ex- plained in Keshav Sing/i's Case Sp!. Ref. No. 1, [1965) 1 SCR 413, to protect the validity of proceedings from mere ir- regularities of procedure. The deeming provision, having E regard to the words "be deemed to be proceedings in Parlia- ment" or "proceedings in the Legislature of a State" confines the scope of the fiction accordingly.

The Speakers/Chairmen while exercising powers and discharg- )~ ing functions- under the Tenth Schedule act as Tribunal ad- F • 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 G regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory inter~ - - ference being cases of interlocutory disqualifications or suspen- sions which may have grave, immediate and irreversible H

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

A repurcussions and consequence.

43Copy pinpoint43. Re ; Contention (G) :

The argument is that an independent adjudicatory machinery for resolution ofelectoral disputes is an essential incident of democracy, which B is a basic feature of Indian constitutionalism. It is urged that investiture of the power of resolving such disputes in the Speaker or the Chairman does not answer this test of an independent, impartial quality of the adjudicatory machinery. It is, therefore, urged that Paragraph 6(1) of the Tenth Schedule is violative of a basic feature. c It is also urged that a Speaker, under the Indian Parliamentary tradition is not required to resign his membership of the political party on whose strength he gets elected and that inevitably the decision of the Speaker is not free from the tugs and pulls of political polarisations. It is urged that the Speaker who has not resigned his membership of the D political party cannot be impartial and, at all events, his functioning will not be free from reasonable likelihood of bias.

44Copy pinpoint44. 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 E Governor acting according to the opinion of Election Commission. The disqualifications for defection could very well have been included in Article 102(1) or 191(1) as a ground, additional to the already existing grounds under clauses (a) to (e) in which event, the same dispute resolution machinery would have dealt with the disqualifications for defections also. F But the Tenth Schedule, apparently, attempted a different experiment in respect of this particular ground of disqualification.

45Copy pinpoint45. The question is, whether the investiture of the determinative juris- diction in the Speaker would by itself stand vitiated as denying the idea of an independent adjudicatory authority. We are afraid the criticism that the provision incurs the vice of unconstitutionality ignores the high status and importance of the office of the Speaker in a Parliamentary democracy. The office of the Speaker is held in the highest respect and esteem in Parliamen- tary traditions. The evolution of the institution of Parliamentary democracy has as its pivot the institution ~f the Speaker. 'The Speaker holds a high, important and ceremonial office. All questions of the well being of the House

p. 771 Copy page pinpoint

are matters of Speaker's concern'. The Speaker is said to be the very embodi- A ment of propriety and impartiality. He performs wide ranging functions in- cluding the performance of important functions of a judicial character.

Mavalankar, who was himself a distinguished occupant of that high office, says : B "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 C expected to be above parties, above politics. In other words, he belongs to all the members or belongs to none. He holds the scales of justice evenly irrespective of party o_r person, though no one expects that he will do absolute justice in all matters; because, as a human being he has his human drawbacks and shortcomings. However, everybody knows that he will intention- D ally do no injustice or show partiality. "Such a person is natural- ly held in respect by all."

[See : G.V. Mavalankar : The Office of Speaker, Journal of Parliamentary Information, April 1956, Vol. 2, No. 1, p.33) E 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 of the nation's freedom and liberty. F 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) G 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 H

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A 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 B 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 c except a substantive motion. His authority in the chair is for- tified by many special powers which are referred to below. Confidence in the impartiality of the Speaker Is an indispen- sable condition of the successful working of procedure, and many conventions exist which have as their object not only to ensure the impartiality of the Speaker but also to ensure that D ' his impartiality is generally recognised ...... "

[See : Erskine May - Parliamentary Practice - 20th edition p. ' 234 and 235]

E M.N. Kaul and S.L. Shakdher in 'Practice and procedure of • 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 F absolute and unvarying impartiality - the main feature of the office, the law of its life. The obligation of impartiality appears in the constitutional provision which ordains that the Speaker is entitled to vote only in the case of equality of •votes. Moreover, his impartiality within the House is secured by the f;ict that he remains above all considerations of party or politi- G cal career, and to that effect he may also resign from the party to which he belonged."

46Copy pinpoint46. It would, indeed, be unfair to the high traditions of that great

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office to say that the investituri; in it of this jurisdiction would be vitiated A for violation of a basic feature of democracy. It is inappropriate to express distrust in the high office of the Speaker, merely because some of the • Speakers are alleged, or even found, to have discharged their functions not in keeping with the great traditions of that high office. The Robes of the Speaker do change and elevate the man inside. B

47Copy pinpoint47. Accordingly, the contention that the vesting of adjudicatory func- tions in the Speakers/Chairmen would by itself vitiate the provision on the ground · of likelihood of political bias is unsound and is rejected. The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. C They are expected to and do take far reaching decisions iii the functioning of Parliamentary democracy. Vestiture of power of adjudicate questions under the Tenth Schedule in such a constitutional functionaries should .be considered exceptionable. . not.

48Copy pinpoint48. Re : Contention H : D

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. E

49Copy pinpoint49. 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 F given a meaning limited to the objects and purposes of the Tenth Schedul~. Learned counsel relied upon and commended to us the view taken by the minority in the Full Bench decision of Punjab and Haryana High Court in Patkash Singh Badal & Ors. v. Union of India & Ors., [AIR 1987 Punjab and Haryana 263) where such a restricted sense was approved. Tewatia J. G said:

"If the expression : "any direction" is to be literally construed then it would make the people's representative a wholly politi- cal party's representative, which decidedly he is not. The Mem- ber would virtually lose his identity and would become a rubber H

p. 774 Copy page pinpoint

A stamp in the hands of his political party. Such interpretation of this provision would cost it, its constitutionality, for in that sense it would become destructive of democracy/parliamentary democracy, which is the basic feature of the Constitution. Where giving of narrow meaning and reading doWI) of the provision can save it from the vice of unconstitutionality the Court should B 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 c in the context of Cabinet/Parliamentary form of Government on the one hand means that a political party or a coalition of political parties which has been voted to power, is entitled to govern till the next election, and on the other, that opposition has a right to censure the functioning of the Government and even overthrow it by voting it out of power if it had lost the confidence of the people, then voting or abstaining from voting by a Me.mber contrary to any direction issued by his party would ~-­ by necessary implication envisage voting or abstaining from voting in regard to a motion or proposal, which if failed, as a • "ff;:.

result of lack or requisite support in the House, would result in voting the Government out of power, which consequence necessarily follows due to well established constitutional con- vention only when either a motion of no confidence is passed I by the House or it approves a cut-motion in budgetary grants. Former because of the implications of Article 75(3) of the Constitution and latter because no Government can function without money and when Parliament declines to sanction money, then it amounts to an expression of lack of confidence in the Government. When so interpreted the clause (b) of sub- paragraph (1) of paragraph 2 would leave the Members free to vote according to their views in the House in regard to any other matter that comes up before it"

The reasoning of the learned judge tl:!at a wider meaning of the words H "any direction" would 'cost it its cons.titutionality' does not commend to us.

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