KIHOTO HOLLOHAN v. ZACHILLHU AND OTHERS

But we approve the conclusion that these words require to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Tenth Schedule. Those objects and purposes define and limit the contours of its meaning. The assignment of a limited meaning is not to read it down to promote its constitutionality but becuase such a construction is a harmonious construction in the context. There is no justification to give the words the wider meaning.

While construing Paragraph 2(1)(b) it cannot be ignored that under the Constitution members of Parliament as well as of the State Legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the Constitution and the rules and standing orders C ' regulating the Procedure of the House [Art. 105(1) and Art. 194(1)]. The disqualification imposed by Paragraph 2( I) (b) must be so construed as not to unduly impinge on the said freedom of speech of a member. This would be possible if Paragraph 2(1)(b) is confined in its scope by keeping in view the object underlying the amendments contained in the Tenth D Schedule, namely, to curb the e\il or mischief of political de,fections motivated by the lure of office or other similar considerations. The said object would be achieved if the disqualification incurred on the ground of voting or abstaining from voting by a member is confined to cases where a change of Government is likely to be brought about or is prevented, as the case may be, as a result of such voting or ~bstinence or when such voting E or abstine~ce is on a matter which was a major policy and programme on which the political party to which the member belongs went to the polls. For this purpose the direction given by the political party to a member • belonging to it, the violation of which may entail disqualificatiort under Paragraph 2(1Hb), would have to be limited to a vote on motion of F )"'·' confidence or no confidence in the Government or where the motion under consideration relates to a matter which \Vas an integral policy and . programme of the political party on the basis of which it approached the elaborate. The voting or abstinence from voting by a member against the direction by the political party on such a motion would amount to disap- proval of the programme of the basis of which he went before the elec- G torate and got himself elected and such voting or abstinence would amount to a breach of the trust reposed in him by the electorate.

Keeping in view the consequences of the disqualification i.e., ter- mination of the membership of a House; it would be appropriate that the H

p. 776 Copy page pinpoint

A direction or whip which results in such disqualification under Paragraph 2(1)(b) is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the dis- qualification under Paragraph 2(1)(b) of the Tenth Schedule so that th.e member concerned has fore-knowledge of the consequences flowing from his conduct in voting or abstaining from voting contrary to such a direction. B

50Copy pinpoint50. There arc some submissions as to the exact import of a "split· - whether it is to be understood an instantaneous, one time event or whether a "split" can be said to occur over a period of time. The hypothetical poser was that if one-third of the members of a political party in the legislature broke-away from it on a particular day and a few m1>re members joined the spliter group a couple of days later, would the latter also be a part of the "split" group. This question of construction cannot be in vaccuo. In the . present cases, we have dealt principally with constitutional issues. The meaning to be given to "split" must necessarily be examined in a case in which the question arises in the context of its particular facts. No hypotheti- cal predications can or need be made. We, accordingly, leave this question open to be decided in an appropriate case.

51Copy pinpoint51. Before parting with the case, we should advert to one other cir- cumstance. During the interlocutory stage, the constitution bench was per- E suaded to make certain interlocutory orders which, addressed as they were to the Speaker of the House, (though, in a different capacity as an ad- judicatory forum under the Tenth Schedule) engendered complaints of dis- obedience culminating in the filing of petitions for initiation of proceedings of contempt against the Speaker. It was submitted that when the very ques- F tion of jurisdiction of the Court to deal with the matter was raised and even before the constitutionality of Paragraph 7 had been pronounced upon, self restraint required that no interlocutory orders in a sensitive area of the relationship between the legislature and the Courts should been made.

The purpose of interlocutory orders is to preserve in status-quo the rights of the parties, so that, the proceeding~ do not become infructuous by any unilateral overt acts by one side or the other during its pendency . .One of the contentions urged was as to the invalidity of the amendment for non-compliance with the proviso to Article 368(2) of the Constitution. It has now been unanimously held that Paragraph 7 attracted the proviso to article 368(2). The interlocutory orders in this case were necessarily

K!HOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 777

justified so that, no land-slide changes were allowed to occur rendering the proceedings ineffective and infructuous.

52Copy pinpoint52. With the finding and observations as aforesaid W.P. No. 17_ of 1991 is dismissed. Writ petition in Rule No. 2421of1990 in the High Court of Gauhati is remitted back to the High Court for disposal in accordance with law and not inconsistent with the findings and observations contained in this order.

VERMA, J. : This matter relating to disqualification on the ground of defection of s.ome members of the Nagaland Legislative Assembly under the Tenth Schedule inserted by the Constitution (Fifty-Second Amend- C ment) Act, 1985, was heard along with some other similar matters relating to several Legislative Assemblies including those of Manipur, Meghalaya, Madhya Pradesh, Gujarat and Goa, since all of them involved the decision of certain constitutional questions relating to the constitutional validity of para 7 of the Tenth Schedule and consequently the validity of the Constitu- D lion (Fifty-Second Amendment) Act, 1985 itself. At the hearing, several learned counsel addressed us on account of which the hearing obviously took some time. Even during the course of the hearing, the actions of some Speakers tended to alter the slants quo, in some cases resulting in irre- versible consequences which could not be corrected in the event of para 7 of the Tenth Schedule being held invalid or the impugned orders of the E Speakers being found justiciable and, on merits illegal and, therefore, the urgency increased of deciding the questions debated before us at the earliest. For this reason, we indicated during the course of the hearing that we would pronounce our operative conclusions soon after conclusion o~ the hearing with reasons therefor to follow. Accordingly, on conclusion of the hearing on November 1, 1991, we indicated that the operative con- clusions would be pronounced by us at the next sitting of the Bench when it assembled on November 12, 1991 after the Diwali Vacation. The opera- tive ·conclusions of the majority (Venkatachaliah, Reddy and Agrawal, JJ.) as well as of the minority (Lalit Mohan Sharma and .l.S. Verma, J.T.) were thus pronounced on November 12, 1991. We are nc.w indicating herein our reasons for the operative conclusions of the minority view.

The unanimous opinion according to the n1aj1..1rit~ as \\i'cll :1" thl: minority is that para 7 qf the Tenth Schedule enact~ J pru\ isio11 1, ir . complete exclusion of judicial review including the ju1 j,dic1 ion of the H

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

A Supreme Court under Article 136 and of the High Courts under Articles 226 and 227 of the Constitution and, therefore, it makes in term,. and in effect a change in Articles 136, 226 and 227 of the Constitution which attracts the proviso to clause (2) of Article 368 of the Constitution; and, therefore, ratification by the specified number of State Legislatures before the Bill was presented to the President for his assent was necessary, in accordance therewith. The majority view is that in the absence of such ratification by the State Legislatures, it is para 7 ·alone of the Tenth Schedule which is unconstitutional; and it being severable from the remain- ing part of the Tenth Schedule, para 7 alone is liable to be struck down rendering the Speakers' decision under para 6 that of a judicial tribunal amenable to judicial review by the Supreme Court and the High Courts under Articles 136, 226 and 227. The minority opinion is that the effect of invalidity of para 7 of the Tenth Schedule is to invalidate the entire Constitution (Fifty-Second Amendment) Act, 1985 which inserted the Tenth Schedule since the President's assent to the Bill without prior ratification by the State Legislatures is non est. The minority view also is that para 7 is not severable from the remaining part of the Tenth Schedule and the Speaker not being an independent adjudicatory authority for this -<-- purpose as contemplated by a basic feature of democracy, the remaining part of the Tenth Schedule is in excess of the amending powers being violative of a basic feature of the Constitution. In the minortity opinion, we have held that the entire Constitution (Fifty-Second Amendment) Act, 1985 is unconstitutional and an abortive attempt to make the Constitutional Amendment indicated therein.

F Before proceeding to give our detailed reasons, we reproduce the operative conclusions pronounced by us on November 12, 1991 in the minority opinion (Lalit Mohan Sharma and J.S. Verma, JJ.) as under: . ' '

"For the reasons to be given in our detailed judgment to follow, our operative conclusions in the minority opinion on the various constitutional issues are as follows : G

1. Para 7 of the Tenth Schedule, in clear terms and in effect, excludes the jurisdiction of all courts, il)cluding the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 to entertain any challenge to the decision under H para 6 on any ground even of illegality or perversity, not only

p. 779 Copy page pinpoint

at an interim stage but also after the final decision on the A question of disqualification on the ground of defection.

2. Para 7 of the Tenth Schedule, therefore, in terms and in effect, makes a change in Article 136 in Chapter IV of Part V; and Articles 226 and 227 in Chapter V of Part VI of the Constitution attracting the proviso to clause (2) of Article 368. B

3. In view of para 7 in the Bill resulting in the Constitution (Fifty-Second Amendment) Act, 1985, it was required to be ratified by the Legislature of not less than one-half of the States as a condition precedent before the Bill could be presented to the President for assent, in accordance with the mandatory special procedure prescribed in the proviso to clause (2) of Article 368 for exercise of the constituent power.· Without ratification by the specified number of State Legislatures, the stage for presenting _the Bill for assent of the President did not reach and, therefore, the so-called assent of the President was non est and did not result in the Constitution standing amended in accordance with the terms of the Bill.

4. In the absence of ratification by the specified number of State Legislatures before presentation of the Bill to the President for his assent, as required by the proviso to clause (2) of Article 368, it is not merely para 7 but, the entire Constitution (Fifty- Second Amendment) Act, 1985 which is rendered unconstitu- tional, since the constituent po\ver \Vas not exercised as prescribed in Article 368, and therefore, the Constitution did not stand amended in accordance with the terms of the Bill providing for the amendment.

5. Doctrine of Severability connot be applied to a Bill making a constitutional amendment where any part thereof attracts the proviso to clause (2) of Article 368. G

6. Doctrine of Severability is not applicable to permit striking down para 7 alone sa,1ng the remaining provisions of the Bill making the Constitutional Amendment on the ground that para 7 alone attracts the proviso to clause (2) of Article 368. H

p. 780 Copy page pinpoint

A 7. Even otherwise, having regard to the provisions of the Tenth Schedule of the Constitution inserted by the Constitution (Fifty- Second Amendment) Act, 1985, the Doctrine of Severability does not apply to it

8. Democracy is a part of the basic structure of the Constitution B and free and fair elections with provision for resolution of disputes relating lo the same as also for adjudication of those relating to subsequent disqualification by an independent body outside the House are essential features of the democratic system in our Constitution. Accordingly, an independent ad- c judicatory machinery for resolving disputes relating to the com- petence of Members of the House is envisaged as a attribute of this basic feature. The tenure of the Speaker who is the authority in the Tenth Schedule to decide this dispute is de- pendent on the continuous support of the majority in the House and, therefore, he (the Speaker) does nol satisfy the require- D ment of such an indc.pendcnt adjudicatory authority; and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature.

9. Consequently, the entire Constitution (Fifty-Second Amend- E ment) Acl, 1985 which inserted the Tenth Schedule together with clause (2) in Articles 102 and 191, must be declared unconstitutional or an aborti,'e attempt to so amend the Con- stitution.

10. It follows that all decisions rendered by the several Speakers F under the Tenth Schedule must also be declared nullity and liable to be ignored.

11.. On the above conclusions, it does not appear necessary or appropriate to decide the remaining questions urged."

G ll is unnecessary in this judgment to detail the facts giving rise to the debate on the constitutional issues relating to the validity of the Tenth Schedule, more particularly para 7 therein, introduced by the Constitution (Fifty-Second Amendment) Act, 1985. Suffice it to say that these matters arise out of certain actions of the Speakers of several Legislative As- H semblics under the Tenth Schedule. Arguments on these questions were

p. 781 Copy page pinpoint

addressed to us by several learned counsel, namely, the learned Attorney A Genera~ S/Shri A.K. Sen, Shanti Bhushan, M.C. Bhandare, F.S. Nariman, Soli J. Sorabjee, R.K. Garg, Kapil Sibal. M.R. Sharma, Ram Jethmalani, N.S. Hegde, O.P. Sharma, Bhim Singh and R.F. Nariman. It may be mentioned that some learned counsel modified their initial stand to some extent as the hearing progressed by advancing alternative arguments as B well. Accordingly, the several facets of each constitutional issue debated before us were fully focused during the hearing. The main debate, however, was on the construction of paras 6 and 7 of the Tenth Schedule and the validity of the Constitutional Amendment. Arguments were also addressed on the question of violation, if any, of any basic feature of the Constitution by the provisions of the Tenth Schedule. c The points involved in the decision of the constitutional issues for the purpose of our opinion may be summarised broadly as under : -

(A) Construction of para 6 of the Tenth Schedule. Its effect and the D extent of exclusion of judicial review thereby. "--,- (B) Construction of para 7 of the Tenth Schedule. Its effect and the extent of exclusion of judicial review thereby.

(C) In case of total exclusion of judicial review including the jurisdic- E lion of Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution by the Tenth Schedule, does para 7 make a change in these Articles attracting the proviso to clause (2) of Article 368 of the Constitution?

"" ,/ ' (D) The effect of absence of prior ratification by the State Legislatures before the Bill making provisions for such amendment was F

presented to the President for assent, on the constitutional validity of the Tenth Schedule.

(E) Severability of para 7 from the remammg part of the Tenth G Schedule and its effect on [be question of constitutional validity of the Tenth Schedule.

(F) Violation of basic feature of the Constitution, if any, by the Tenth Schedule as a whole or any part thereof and its effect on the constitut~onality for this reason. H

782 SUPREME COURT REPORTS (1992) 1 S.C.R.-

A (G) Validity of the Tenth Schedule with reference to the right of dissent of members with particular reference to Article 105.

As indicated by us in our operative conclusions pronounced earlier, we need not express our concluded opinion on the points argued before us which are not necessary for supporting the conclusion reached by us B that the entire tenth Schedule and consequently the Constitution {Fifty- Second Amendment) Act, 1985 is unconstitutional on the view we have taken on the other points. We are, therefore, giving our reasons only in respect of the points decided by us leading to the conclusion we have reached. c At this stage, it would be appropriate to mention the specific stand of the Speakers taken at the hearing. The learned counsel who appeared for the several Speakers clearly stated that they were instructed to apprise us that the Speakers did not accept the jurisdiction of this Court to entertain these matters in view of the complete bar on jurisdiction of the courts enacted in para 7 read with para 6 of the Tenth Schedule. Accord- ingly, they abstained from addressing us on the merits of the impugned orders which led to these matters being brought in this Court in spite of our repeated invitation to them to also address us on merits in each case, which all the other learned counsel did. N(, douht, this Court's jurisdiction to decide the co.nstitutional validity of the Tenth Schedule was conceded, but no more.

It is in these extra-ordinary circumstances that we had to hear these matters. We need not refer herein to the det<tils of any particular case since the merits of each case arc dealt separately in the order of that case. Suffice it to say that the unanimous ,·icw of the Bench is that the Speakers' decision disqualifying a member under the Tenth Schedule is not immune from judicial scrutiny. According to the majority it is subject to judicial scrutiny on the ground of illegality or perversity which in the minority view, it is a G nullity liable to be so declared and ignored.

We consider it apposite in this context to recall the duty of the Court m such delicate situations. This is best done by quoting Chief Justice 1 Marshall in Cohens v. Virginia, 6 Wheat 264, 404, 5 L.Ed. 257, 291 (1821], H wherein he said :

p. 783 Copy page pinpoint

"It is most true, that this Court will not take Jurisdiction if it should not : but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitu· tion. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constiturioq. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do, is to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one.

xxx xxx xxx D

........ If the question cannot be brought in a court, then there is no case in law or equity, and no jurisdiction is given by the words of the article. But if, in any controversy depending in a coun, tile cause should depend on the validity of such a. law, that E would be a case arising under tile constitution, to which the judicial power of the United States would extend...... " (emphasis supplied) More recently, Patanjali Sastri, CJ., while comparing the role of this Court in the constitutional scheme with that of the U.S. Supreme Court, F pointed out in the State of Madras v. V.G. Row (1952] SCR 597 that the duty of this Court flows from express prO\isions in our Constitution while such power in the U.S. Supreme Court has been assumed by the interpreta· tivc process giving a wide meaning to the "due process" clause. Sastri, CJ., at p.605, spoke thus: G "Before proceeding to consider this question, we think it right to point out, what is sometimes overlooked, that our Constitu· tion conlains express provisions for judicial revic\v of legislation as to its conformity "'ith the Constitution unlike as in America 1

where the Supreme Court has assumed extensive powers of H

p. 784 Copy page pinpoint

>- A reviewing legislative acts under cover of the widely interpreted 'due process' clause in the Fifth and Fourteenth Amendments. If. then,. the courts in this country face up to such important and none too easy task, it is not out ·of any desire to tilt at legislative authority in a crnsader's spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as B regards the 'fundamental rights', as to which this court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the con- stitutionality of an impugned statute. We have ventltred 011 these c obvious remarks because it appears. to have been suggested in some quarters that the courts in the new set up are out to seek clashes with the legislatures in the country." (emphasis supplied) We are in respectful agreement with the above statement of Sastri, D CJ, and wish to add that even though such an obvious statement may have been necessary soon after the Constitution came into force and may not be a necessary reminder four decades later at this juncture, yet it appears ..,,. apposite in the present context to clear the lingering doubts in some minds. We have no hesitation in adding further that while we have no desire to clutch at jurisdiction, at the same time we would not be deterred in the E performance of this constitutional duty whenever the need arises.

We would also like to observe the unlike England, where there is no written Constitution and Parliament is supreme, in our country there is a written Constitution delineating the spheres of jurisdiction of the legisla- F tore and the judiciary whereundcr the power to construe the meaning of the provisions in the Constitution and the la\vs is entrusted to tne judiciary -~ with finality attached to the decision of this Court illfer alia by Article 141 about the true meaning of any enacted provision and Article 144 obliges all authorities in the country to act in aid of this Court. It is, therefore, not permissible in our constitutional scheme for any other authority to claim G that power in exclusivity. or in supersession of this Court's verdict. Whatever be the controversy prior to this Court entertaining such a matter, it must end when the court is seized of the matter for pronouncing its verdict and it is the constitutional obligation of every person and authority to accept its binding effect when the decision is rendered b~ this Court. It y

H is also to be remembered that in our constitutional scheme based on

- "" KIHQTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 785

democratic principles which include governance by rule of law, every one A has to act and perform, his obligations according to the law of the land and it is ihe constitutional obligation of this Court to finally say what the law is. We have no doubt that the Speakers and all others sharing their views are alive to this constitutional scheme, which is as much the source of their jurisdictton as it is of this Court and also conscious that the power given B .to each wing is for the performance of a public duty as a constitutional obligation and not for self-aggrandisement. Once this perception is clear to all, there can be no room for any conflict.

The Tenth Schedule was inserted in the Constitution of India by the Constitution (Fifty-Second Amendment) Act. 1985 which came into force C with effect from l.3.1985 and is popularly known as the Anti-Defection Law. The Statement of Objects and Reasons says that this amendment in the Constitution was made to combat the evil of political defections which has become a matter of national concern and unless combated, is likely to undermine the very foundations of our democratic system and the prin- D ciplcs which sustained it. This amendment is, therefore, for outlawing defection to sustain our democratic principles. The Tenth Schedule con- tains eight paras. Para J is the interpretation clause defining 'House' to mean either House of Parliament or the Legislative Assembly or, as the case may he, either House of the Legislature of a State. The expressions 'legislature party' and 'original political party' which are used in the remaining paras are also defined. Para 2 provides for disqualification on ground of defection. Para 3 provides that disqualification on ground of defection is not to apply in case of split indicating therein the meaning of 'split'. Para 4 provides that disqualification on ground of defection is not to apply in case of merger. Para 5 provides exemption for the Speaker or the Deputy Speaker of the House of the People or of the Legislative Assembly of the Stale, the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of a State from the applicability of the provisions of the Tenth Schedule. Para 8 contains the rule making power of the Chairman or the Speaker. G For the purpose of deciding the jurisdiction of this Court and the

- justiciability of the cause, it is paras 6 and 7 which arc material and they read as und1:r:

... "6. Decision on questions as to disqualification of ground of defec- H

A tion.- SUPREME COURT REPORTS (1992] 1 S.C.R. . - i. If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of sucb House and his decision B shall be final :

Provided that where the question which has arisen is as to whether the Chairman. or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House c may elect in this behalf and his decision shall be final.

2. All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceed- D ings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature, of a State within the meaning of Article 212.

7. Bar of Jurisdiction on courts. -

E Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule."

We shall now deal with the points involved enumerated earlier. F Points '.A' & 'B' - Paras 6 & 7 of Tellth Schedule

In support of the objection raised to the jurisdiction of this Court and the justiciability of the Speaker's decision relating to disqualification G of .a member, it has been urged that sub-paragraph (1) of para 6 clearly lays down that the decision of the· Chairman or, as the case may be, the Speaker of such House shall be final and sub-paragraph (2) proceeds to

H say that all proceedings under sub-paragraph (1) 'shall be deemed to the proceedings in Parliament ...... or, ...... proceedings in the Legislature of a State' within the meaning of Article 122 or Article 212, as the case may be. It was urged that the clear provision in para 6 that the decision of the ,.. -

..; KIHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 787

Chairman/Speaker on the subject of disqualification under this Schedule A shall be final and the further provision that all such proceedings 'shall be deemed to be proceedings in Parliament .... or, .... proceedings in the Legislature of as State', within the meaning of Article 122 or Article 212,. as the case may be, clearly manifests the intention that the jurisdiction of all courts including the Supreme Court is ousted in such matters and the B decision on this question is not justiciable. Further argument is that para 7 in clear words thereafter reiterates that position by saying that 'not- withstanding anything in this Constitution, no court shall have any jurisdic- tion in respect of any matter connected with the disqualification of a member of a House under this Schedule'. In other words, the argument is tqat P,ara 6 by itself provides for ouster of the jurisdiction of all courts c including the Supreme Court and para 7 is a remanifestation of that clear intent in case of any doubt arising from para 6 alone. On this basis it was urged that the issue raised before us is not justiciable and the Speaker or the Chairman, as the case may be, not being 'Tribunal' within the meaning of that expression used in Article 136 of the Constitution, their decision is not open to judicial review. D

In reply, it was urged that the finality Clause in sub-paragraph (1) of para 6 does not exclude the jurisdiction of the High Courts under Articles 226 and 227 and of this Court under Article 136; Deeming provision in sub-paragraph (2) of Para 6, it was urged, has the only effect of making it E a 'proceedings in Parliament' or 'proceedings in the Legislature of a State' to bring it within the ambit of clause (1) of Articles 122 or 212 but not within clause (2) of these Articles. The expression 'proceedings in Parliament' and 'proceedings in the Legislature of a State' are used only

-~' in cluase .(1) of Articles 122 and 212 but not in clause (2) of either of these F Articles, on account of which the scope of the fiction cannot be extended beyond the limitation implicit in the specific words used in the legal fiction. This being so, it was argued that immunity extended only to 'irregularity of procedure' but not to illegality as held in Keshav Singh - [1965] 1 SCR 413. · In respect of para 7, the reply is that the expression 'no court' therein must be similarly construed to refer only to the courts of ordiqary jurisdiction a _, but not the extra-ordinary jurisdiction of the High Courts under Article 226 & 227 and the Plenary jurisdiction of Supreme Court under Article

136. It was also argued that the Speaker/Chairman while deciding the '\ questidn of disqualification of member under para 6 exercises a judicial function of the State which otherwise would be vested in the courts and, H

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

A therefore, in this capacity he acts as 'Tribunal' amenable to the jurisdiction under Articles 136, 226 and 227 of the Constitution. Shri Sibal also con- tended that the bar in para 7 operates only at the interim stage, like other election disputes, and not after the final decision under para 6.

The finality clause in sub-paragraph (1) of para 6 which says that the B decision of the Chairman or, as the case may be, the Speaker of such House shall be final is not decisive. It is settled that such a finality clause in a statute by itself is not sufficient lo exclude the jurisdiction of the High Courts under Articles 226 and 227 and the Supreme Court under Article 136 of the Constitution, the finality being for the statute alone. This is apart c from the decision being vulnerable on the ground uf nullity. Accordingly, sub-paragraph (1) alone is insufficient to exclude the extra-ordinary juris- diction of the High Courts and the plenary jurisdiction of this Court. The legal fiction in sub-paragraph (2) of para 6 can only bring the proceedings under sub-paragraph (1) thereof within the ambit of clause (1) of Article D 122 or clause (1) of Article 212, as the case may be, since the expressions used in sub-paragraph (2) of para 6 of the Tenth Schedule are 'shall be deemed to be proceedings in Parliament' or 'proceeedings in tile legislanire of a State'. and such expressions find place both in Articles 122 and 212 only in clause (1) and not clause (2) thereof. The ambit of the legal fiction must be confined to the !imitation implicit in the words used for creating E the fiction and it cannot be given an extended meaning lo include therein something in addition. It is also settled that a matter falling within the ambit of clause (1) of either of these two Articles is justiciable on the ground of illegality or perversity in spite of the immunity it enjoys to a challenge on the ground of 'irregularity of procedure'. ~ F ' \. To overcome this result, it was argued that such matter would fall within the ambit of Clause (2) of both Articles 122 and 212 because the consequence of the order of disqualification by the Speaker/Chairman would relate to the conduct of business of the House. In the first place, the two separate clauses in Articles 122 and 212 clearly imply that the meaning G and scope of the two cannot be identical even assuming there be some overlapping area between them. What is to be seen is the direct impact of ' the action and its true nature and not the further consequences flowing therefrom. It cannot be doubted in view of the clear language or sub- pargraph (2) of para 6 that it relates to clause (1) of hnth Articles 122 and H 212 and the legal fiction cannot, therefore. he extendcJ hl'wnd the limits

KIHOTO HOLLORAN v. ZACHILLHU [VERMA, J.] 789

of the express words used in the fiction. In construing the fiction it is not A to be extended beyond the language of the Section by which it is created and its meaning must be restricted by the plain words used. It cannot also be extended by importing another fiction. The fiction in para 6(2) is a limited 0ne which serves its purpose by confining it to clause (1) alone of. Articles 122 and 212 and, therefore, there is no occasion to enlarge ·its ·B scope by reading into it words which are not there and extending it also to cl:;tuse (2) of these Articles. See Commissioner of Income-tax v. Ajax Products Ltd., [1%5] 1 SCR 700.

Moreover, it does appear to us that the decision relating to dis- qualification of a member does not relate to regulating procedure or the conduct of business of the House provided for in clause (2) of Articles 122 and 212 and taking that view would amount to extending the fiction beyond its language and importing another fiction for this purpose w'1ich is not permissible. That being so, the matter falls within the ambit o.f Clause (1) only of Articles 122 and 212 as a result of which it would be vulnerable on the ground of illegality and perversity and, therefore, justiciable to that extent.

It is, therefore, not possible to uphold the objection of jurisdiction on the finality clause or the legal fiction created in para 6 of the Tenth Schedule when justiciability of. the clause is based on a ground of illegality or perversity (see Keshav Singh - [1965] 1 SCR 413). This in our view is the true construction and effect of para 6 of Tenth Schedule.

We shall now deal with para 7 of the Tenth Schedule.

The words in para 7 of the Tenth Schedule are undoubtedly very wide and ordinarily mean that this provision supersedes any other provision in the Constitution. This is clear from the use of the non obstante clause 'not- withstanding anything in this Constitution' as the opening words of para 7. The non obstante clause followed by the expression 'no court shall have any jurisdiction' leave no doubt that the bar of jurisdiction of courts contained in para 7 is complete excluding also the jurisdiction of the Supreme Court G under Article 136 and that of the High Courts under Articles 226 and 227 of the Constitution relating to matters covered by para 7. The question, there- fore, is of the scope of para 7. The scope of para 7 for this purpose is to be determined by the expression 'in respect of any matter connected with the disqualification of a member of a House under this Schedule'. H

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

A One of the constructions suggested at the hearing was that this expression covers only the intermediate stage of the proceedings .relating to disqualification under para 6 and not the end stage when the final order is made under para 6 on the question of disqualification. It was suggested that this construction would be in line with the construction made by this Court in its several decisions relating to exclusion of Courts' jurisdiction in B election disputes at the intermediate stage under Article 329 of the Con- ~ stitution. This construction suggested of para 7 does not commend to us 1

sinq: it is contrary to the clear and unambiguous language of the provision. ~ 1 ' The expression 'in respect of any matter connected with the disqualification -.... of a member of a House under this Schedule' is wide enough to include c not merely the intermediate stage of the proceedings relating to dis- qualification but also the final order on the question of disqualification ~ j:. made under para 6 which is undoubtedly such a matter. There is thus express exclusion of all courts' jurisdiction even in respect of the final ..ii order. D As earlier indicated by virtue of the finality clause and the deeming provision in para 6, there is exclusion of all courts' jurisdiction to a considerable extent leaving out only the area of justiciability on the ground bf illegality or perversity which obviously is relatable only to the final order under para 6. This being so, enactment of para 7 was necessarily made to E bar the jurisdiction of courts also in respect of matters falling outside the, purview of the exclusion made by para 6. Para 7 by itself and more so when !-

read along with para 6 of the Tenth Schedule, leaves no doubt that · exclusion of all courts' jurisdiction by para 7 is total leaving no area within the purview, even of the Supreme Court or the·High Courts under Articles F 136, 226 and 227. The language of para 7 being explicit, no other aid to. construction is needed. Moreover, the speech of the Law Minister who piloted the Bill in the Lok Sabha and that of the Prime Minist~r in the Rajya Sabha as well as the debate on this subject clearly show that these provisions were enacted to keep the entire ·matter relating to disqualifica- G tion including the Speakers' final decision under para 6 on the question of djsqualification, wholly outside the purview of all courts including the Supreme Court and the High Courts. The legislative history of the absence of such a provision excluding the courts' jurisdiction in the two earlier Bills which lapsed also re-inforces the conclusion that enactment of para 7 was >- H clearly to provide for total ouster of all courts' jurisdiction.

KJHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 791

In the face of this clear language, there is no rule of construction A which permits the reading of para 7 in any different manner since there is no ambiguity in the language which is capable of only one construction, namely, total exclusion of the jurisdiction of all courts including that of the Supreme Court and the High Courts under Articles 136, 226 and 227 of the Constitution in respect of every matter connected with the disqualifica- B tion of a member of a House under the Tenth Schedule including the final decision rendered by the Speaker/Chairman, as the case may be. Para 7 must, therefore, be read in this manner alone.

The question now is of the effect of enacting such a provision in the Tenth Schedule and the applicability of the proviso to clause (2) of Art~e C 368 of the Constitution.

Point 'C' - Applicability of Article 368(2) Proviso

The above construction of para 7 of the Tenth Schedule gives rise to the question whether it thereby .makes a change in Article 136 which is in D Chapter IV of Part V and Articles 226 and 227 which arc in Chapter V of Part VI of the Constitution. If the effect of para 7 is to make such a change in these provisions so that the proviso to clause (2) of Article 368 is attracted, then the frurther question which arises is of the effect on the Tenth Schedule of the absence of ratification by the specified number of E State Legislatures, it being admitted that no such ratification of the Bill was made by any of the State Legislatures.

Prima facie it would appear that para 7 does seek to make a change in Articles 136, 226 and 227 of the Constitution inasmuch as without para 7 in the Tenth Schedule a•decision of the Speaker/Chairman would be amenable to the jurisdiction of the Supreme Court under Article 136 and of the High Courts under Articles 226 and 227 as in the case of decisions as to other disqualifications provided in clauses (1) of Article 102 or 191 by the President/Governor under Article 103 or 192 in accordance with the opinion of the Election Commission which was the Scheme under the two earlier Bills which lapsed. However, some learned counsel contended placing reliance on Sri Sankari Prasad Singh Deo v. Union of ll!dia and State of Bihar, (1952] SCR 89 anJ Sajjan Singh v. Siate of Rajastlian, (1965] 1 SCR 933 that the effect of such total exclusion of the jurisdiction of the Supreme Court and the High Courts does not make a change in Articles 136, 226 and 227. A close reading of these decisions indicates that instead H

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

A of supporting this contention, they do in fact negative it.

In Sankari Prasad, the challenge was to Articles 31A and 31B in- serted in the Constitution by the Constitution (First Amendment) Act,

1951. One of the objections was based on absence of ratification under Article 368. While rejecting this argument, the Constitution Bench held as B under:-

"It will be seen that these Articles do not ei,ther in tem1s or i'l effect seek to make any change in article 226 or in articles 132 and 136. Article 31A aims at saving laws providing for the c compulsory acquisition by the State of a certain kind of proper- ty from the operation of article 13 read with other relevant articles in Part 111, while article 31B purports to validate certain specified Acts and Regulations already passed, which, but for such a provision, would be liable to be impugned under article

13. It is not correct to say that the powers of the High Court D under article 226 to issue writs "for the enforcement of any of the rights conferred by Part III" or of this Court under articles 132 and 136 to entertain appeals from orders issuing or refusing such writs are in any way affected ..They remain just the same as they were before : only a certain class of case has been E excluded from the purview cif Part III and ti1e courts could no longer interfere, not because their powers were Curtailed in any n1anner or to any extend, but because there would be no occasion hereafter for the exercise of their powers in such cases."

[emphasis supplied] F The test applied was whether the impugned provisions inserted by the Constitutional Amendment did 'either in terms or in effect seek to make any change in Article 226 or in Articles 132 and 136'. Thus the change may be either in terms i.e. explicit or in effect in these Articles to require ratification. The ground for rejection of the argument therein was G that the remedy in the courts remained unimpaired and unaffected by the change and the change was really by extinction of the right to seek the remedy. In other words, the change was in the right and not the remedy of approaching the court since there was no occasion to invoke the remedy, the right itself being taken away. To the same effect is the decision in Sajjan H Singh, wherein Sankari Prasad was followed stating clearly that there was

KIHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 793

no justification for reconsidering Sankari Prasad. A Distinction has to be drawn between the abridgement or extinction of a right and restriction of the remedy for enforcement of the right. If there is an abridgement or extinction of· the right which results in the disappearance of the cause of action which enables invoking the remedy and· in the absence of which there is no occasion to make a grievance and invoke the subsisting remedy, then the change brought about is in the right and not the remedy. To this situation, Sankari Prasad and Sajja11 Si11g/J .X apply. On the other hand, if the right remains untouched so that a grievance based thereon can arise and, therefore, the cause of action subsists, but the remedy is curtailed or extinguished so that the cause of action cannot be enforced for want of that remedy, then the change made • is in the remedy and not in the subsisting right. To this latter category, Sa11kari Prasad and Sajja11 Si11g/I have no application. This is clear from the above-quoted passage in Sa11kari Prasad which clearly brings out this distinction between a change in the right and a change in the remedy. D The present case, in unequivocal terms, is that of destroying the remedy by enacting para 7 in the Tenth Schedule making a total exclusion of judicial review including that by the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution. But for para 7 which deals with the remedy and not the right, the jurisdiction of the Supreme Court under Article 136 and that of the High Courts under Articles 226 and 227 would remain unimpaired to challenge the decision under para 6, as in the case of decisions relating to other disqualifications specified· in clause (1) of Articles 102 and 191, which remedy continues to subsist. Thus, this extinction· of the remedy alone without curtailing the right, since the question of disqualification of a member on the ground of defection under the Tenth Schedule does required adjudication on enacted principles, results in making a change in Article 136 in Chapter IV in Part V and Articles 226 and 227 in Chapter V in Part VI of the Constitution.

On this conclusion, it is undisputed that the proviso to clause (2) of G Article 368 is attracted requiring ratification by the specified number of State Legislatures before presentation of the Bill seeking to make the constitutional amendment to the President for his assent.

Poini 'D' - Effect of absence of ratification H

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

A The material part of Article 368 is as under :

"368. Power of Parliament to ament the Constitution and Pro- . cedure therefore. - (1) Notwithstanding anything in this Con- stitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of B this Constitution in accordance with the procedure laid dow11 in this article.

(2) An amendment of this Constitution may be initiated only by the introduction of a Bil~ for the purpose in either Hou~e of Parliament, and when the Bill is passed in each House by a c majority of the total membership of that 1,-louse and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Con- stitution shall stand amended in accordance with the terms of () the Bill :

Prodded that if such amendment seeks to make a!•Y change in -

(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or

E (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

(c) any of the Lists in the Seventh Schedule, or

F (d) the representation of States in Parliament, or ' •\ (e) the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the Presi- G dent for assent."

(emphasis supplied)

It is clause (2) with its proviso which is material. The main part of , clause (2) prescribes that a constitutional amendment can be initiated only - H by the introduction of a Bill for the purpose and when the Bill is passed

KJHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 795

by each House by a majority of the total membership of that House and A by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the ,/!!ill. Jn short, the Bill not being passed by the required majority is presented'to the President for his assent to the B Bill and on giving of the assent, the Constitution stands amended accord- ingly. Then comes, the proviso which says that 'if such an amendment seeks to make any change' in the specified provisions of the Constitution, the amendment shall also require to be ratified by the Legislature of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the Preseident for assent. In other words, th_e proviso contains a constitutional limitation on the amending power; and prescribes as a part of the special procedure, prior assent of the State Legislatures before presentation of the Bill to the President for his assent in the case of such Bills. This is a condition interposed by the proviso in between the passing of the Bill by the requisite majority in each House and presentation of the Bill to the President for his assent, which assent results in the Constitution automatically standing amended in accordance with the terms of the Bill. Thus, the Bills governed by the proviso cannot be presented to the Presi- dent for his assent without the prior ratification by the specified number of State Legislatures or in other words, such ratification is a part of the special procedure or a condition precedent to presentation of the ·Bill governed by the proviso to the President for his assent. It logically follows that the consequence of the Constitution standing amended in accordance with the terms of the Bill on assent by the President, which is the substan- tive part of Article 368, results only when the Bill has been presented to the President for his assent in confoniiity with the special procedure after performance of the conditions precedent, namely, passing of the Bill by each House by the requisite majority in the case of_ all Bills; and in the case of Bills governed by the proviso, after the Bill has been passed by the requisite majority in each ijouse and it has also been ratified by the Legislature of not less than one-half of the States. G

The constituent power for amending the Constitution conferred by Article 368 also prescribes the mandatory procedure in clause (2)_ including its proviso, for its exercise. The constituent power cannot, therefore, be exercised in any other manner and non-compliance of the special proce- H

796 SUPREME COURT REPORTS (1992] 1 S_.C.R.

A dure so prescribed in Article 368 (2) cannot bring about the result of the Constitution standing amended in accordance with the terms of the Bill since that result ensues only at the end of the prescribed mandatory procedure and not otherwise. The substantive part of Article 368 which provides for the resultant amendment' is the consequence of strict com- pliance of the mandatory special procedure prescribed for exercise of the constituent power and that result does not ensue except in the manner prescribed.

The true nature and import of the amending power and procedure under Article 368 as distinguished from the ordinary legislative procedure was indicated in Kesavananda Bharati [1973] Supp. SCR 1 at pp. 561, 563 & 565:

"....... Under Article 368 However, a different and special proce- dure is provided for amending the constitution. A Bill has to be introduced in either House of Parliament and must be passed by each House separately by a special majority. It should be passed not only by 2/3rds majority of the members present and voting but also by a majority of the total strength of the House. No joint sitting of the two Houses is permissible. In the case of certain provisions of the Constitution which directly or indirectly affect interstate relations, the proposed amendment is required to be ratified by the Legislatures which is not a legislative process of not less than one half of the States before the Bill proposing the amendment is presented to the President for his assent. Tlte procedure is special in the sense that it is different and more exacting or restrictive than the one by which ordinal)' laws are niade by Parlianient. Secondly in certain 1nat- ters the State Legislatures are ·involved in the process of making the amendn!el!t. Such partnership between the Parliament and the State Legislatures in making their own laws by the ordinary procedure is not recognised by the Constitution. It follows from the special provision made in Article 368 for the amendment of the Constitution that our Constitution is a 'rigid' or 'controlled' constitution because tlie Constituent Assembly has "left a special direction as to how the constitution is to. be changed. In view of Article 368, when the special procedure is successfully followed, the proposed amendment automatically becomes a part of the

KIHOTO HOLLORAN v. ZACHILLHU [VERMA, J.] 797

constitution or, in other words, it writes itself i11to the co11stitu- A • tion."

xxx xxx xxx

" ...... But when it comes to the. amendment of the constitutio11, a special procedure has been prescribed in Article 368. Since the B result of following the special procedure under the Article is the amendment of the co11stitution the process which brings about _X the result is known as the exercise of co11stituent power by the bodies associated in the task of the ame11di11g the constitution. It is, therefore, obvious, that when the Parliament and the State C Legislatures function in accordance with Article 368 with a view to amend the constitution, they exercise constituent power as distinct from their ordinary legislative power under Articles 245 to 248. Article 368 is not e11tirely proced!lral. Undo!lbtedly part of it is proced!lral. But there is a clear ma11date that on the procedure bei11gfol/owed the 'proposed amendment shall become D part of the co11stitutio11, which is the s!lbstalltive part of Article

368. Therefore, the peculiar or spe~ial powe1 to gn1end the con- stitution- is to be sought in Article 368 only and not elsewhere. "

xxx xxx xxx E " ...... 17ie tnte position is that the alchemy of the.special proced!lre prescribed i11 Article 368 produces the constituent power which transport the proposed dn1end111ent into the constitution and gives it equal status with the other parts of the constitution." F (emphasis supplied)

Apart from the unequivocal language of clause (2) including the proviso therein indicating the above result of prior ratification being a part of the special procedure or condition precedent for valid assent of the President, the same result is reached even by another route. The ordinary G role of a proviso is to carve out an exception from the general rule in the main enacting part. The main enacting part of clause (2) lays down that on a Bill for a constitutional amendment being passed in each House by a requisite majority, it shall be presented to the President for his assent and on the assent being given, the Constitution shall stand amended in accord- H

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

A ance with the terms of the Bill. The proviso then carves out the exception in case of Bills seeking to make any change in the .specified Articles of the Constitution prescribing that iii the case of those Bills, prior ratification by the Legislatures of not less than one-half of the States is also required before the Bill is presented to the President for assent. This means that a Elill falling within the ambit of the proviso is carved out of the main B enactment in clause (2) as an exception on account of which it cannot result in amendment of the Constitution on the President's assent without prior ratification by the specified number of State Legislatures. The proviso in clause (2) is enacted for and performs the function of a true proviso by qualifying the generality of the main enactment in clause (2) in providing c an exception and taking out of the main enactment in clause (2) such Bills which but for the proviso would fall within the main part. Not only the language of the main enactment in clause (2) and the proviso thereunder is unequivocal to give this clear indication but the true role of a proviso, the form in which the requirement of prior ratification if such a Bill by the D State Legislatures'is enacted in ArtlCle 368 lend further assurance that this is the_ only construction of clause (2) with its proviso which can be legitimately made. If this be the correct constructions of Article 368 (2) with the proviso as we think it is, then there is no escape from the logical conclusion that a Bill to -which the proviso applies does not result in amending the Constitution in accordance with its. terms on assent of the E President if it was presented to the President for his assent and the President gave his assent to the Bill without prior ratification by the specified number of the State Legislaiures. This is the situation in the present case.

Th,us the requirement of prior ratification by the State Legislatures F is not only a condition precedent forming part of the special mandatory procedure for" exercise of the constituent power and a constitutional limita- tion thereon but also a requirement carving out an exception to the general rule of automatic amendment of the Constitution on the President's assent to the Bill. G Iii other words, clause (2) with the proviso therein itself lays down that the President's assent does not result in automatic amendment of the Constitution in case of such a Bill it was not duly ratified before presenta- tion to the President for his assent. Nothing more is needed to show that· H not only para 7 of the Tenth Schedule but the entire Constitution (Fifty-

KIHOTO HOLLORAN v. ZACHILLHU [VERMA, J,] 799

Second Amendment) Act, 1985 is still born or an abortive attempt to A amend the 'constitution for w~t of prior ratification by the State Legisla- tures of the Bill before its presentation to the President for his assent.

The result achieved in each case is the same irrespective of the ·route taken. If the route chosen is for construing the language of clause (2) with the proviso merely a part of it, the requirement or prior ratification is a B condition precedent forming part of the special mandatory procedure· providing that the constituent power in case of such a Bill can be exercised in this manner alone, the mode prescribed for other Bills being-forbidden. If the route taken is of treating the proviso•as carving out an exception from the general rule which is the normal role of a proviso, then the result is that the consequence of the Constitution standing amended in terms of the provisions of the Bill on the President's assent as laid down in the main part of clause (2) does not ensue without prior ratification in case of a Bill to which the proviso applies.

There can thus be no doubt that para 7 of the Tenth Schedule which seeks to· make a change in Article ·136 which is a part of Chapter IV of Part V and Articles 226 and 227 which form part of Chapter V of Part VI of t\le Constitution, has not been enacted by incorporation in a Bill seeking to make the Constitutional Amendment in the manner prescribed by clause (2) read with the proviso threin of Article 368. Para 7 of the Tenth E Schedule is, .therefore, unconstitutional and to that extent at least the Constitution does not stand amended in accordance with the Bill seeking to make the Constitutional Amendment. The further question now is: its effect on the validity of the remaining part ·or the Tenth Schedule and consequently the Constitution (Fifty-Second Amendment) Act, 1985 itself. F Point 'E' - Severability of para 7 of Tenth Schedule

The effect of absence of ratification indicated above suggests inap- plicability of the Doctrine of Severability. In our opinion, it is not para 7 alone but the entire Tenth Schedule may the Constitution (Fifty-Second . G Amendment) Act, 1985 itself which is rendered unconstitutional being an abortive attempt to so amend the Constitution. It is ihe entire Bill and not merely para 7 of the Tenth Schedule therein which required prior ratifica- tion by the State Legislatures before its presentation to the President for his assent, it being a joint exercise by the Parliament and State Legislatures. The stage for presentation of Bill to the President for his assent not having H

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

A reached, the President's assent was non est and it could· not be result in amendment of the Constitution in accordance with the terms of the Bill for the reasons given earlier. Severance of para 7 of the Tenth Schedule could · not be made for the purpose of ratification or the President's assent and, therefore, no such severance can· be made even for the ensuing result. If the President's assent cannot validaie para 7 in the absence of prior B ratification, the same assent cannot be accepted to bring about a difference result with regard to the remaining part of the Bill.

On this view, the question of applying the Doctrine of Severability to strike down para 7 alone retaining the remaining part of Tenth Schedule c does not arise since it presupposes that the Constitution stood so amended on the President's assent. The Doctrine does not apply to a still born legislation.

The Doctrine of Severability applies in a case where an otherwise vali~ly enacted legislation contains a provision suffering from a defect of .D lack of legislative competence and the invalid provision is severable leaving the remaining valid provisions a viable whole. This doctrine has no applica- tion where the legislation is not validly enacted due to non-compliance of the mandatory legislative procedure such as the mandatory special proce- dure prescribed for exercise of the constituent power. It is not possible to infuse life in a still born by any miracle of deft surgery even though it may be possible to continue life by removing a congenitally defective part by surgical skill. Even the highest degree of surgical skill can help only to continue life but it cannot infuse life in the case of still birth.

With respect, the contrary ·view does not give due weight to the effect of a condition precedent forming part of the special procedure and the role of a proviso and results in rewriting the proviso to mean that ratifica- tion is not a condition precedent but merely an additional requirement of such a Bill to make that part. effective. This also fouls with the expression 'Constitution shall stand amended ... .' on the assent of President which is after the stage when the amendment has been made and ratified by the State Legislatures as provided. The historical background of drafting the proviso also indicates the significance attached lo prior ratification as a condition precedent for valid exercise of the constituent power.

We are unable to read the Privy Council decision in The Bribery H Commissioner v. Pedrick Ranasinghe [1965] AC 172 as an authority to

KIHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 801

support applica]:>ility of the Doctrine of Severability in the present case. In A Kesavanada Bharati, the substance of that decision was indicated by Math- ew, J., at p. 778 of S.C.R., thus:

" .... that though Ceylon Parliament has plenary power of ordi- nary .legislation, in the exercise of its constitution power it was subject to the special procedure laid down in s, 29 (4) ..... " B

While section 29(4) of Ceylon (Constitution) Order was entirely procedural with no substantive part therein, Article 368 of the Indian Constitution has also a substantive part as pointed out in Kesavananda Bharati. This distinction also has to be borne in mind. C

The challenge in Ranasinghe was only to the legality of a conviction made under the Bribery Act, 1954 as amended by the Bribery Amendment Act, 1958 on the ground that the Tribunal which had made the conviction was constituted under section 41 of the Amending Act which was invalid being in conflict with section 55 of the Constitution and not being enacted D by exercise of constituent power in accordance with section 29( 4) of the Ceylon (Constitution) Order. Supreme Court of Ceylon quashed the con- viction holding section 41 of the Amending Act to be invalid for this reason. The Privy Council affirmed that view and in this context held that section 41 could be severed from rest of the Amending Act. Ranu~·ingfie was not E a case of a Bill passed in exercise of the c.onstituent power without following the special procedure of section 29(4) but of a Bill passed in exercise of the ordinary legislative power containing other provisions which could be so enacted, and including therein section 41 which could be made only in accordance with the special procedure of section 29(4) of the Constitution. The Privy Council made a clear distinction between legislative and constituent powers and reiterated the principles thus:

" ....The effect of section 5 of the Colonial Laws Validity Act, which is framed in a manner somewhat similar to section 29( 4.) of the Ceylon Constitution was that where a legislative power is given subject to certain manner and form, that power does not exist unless and until the manner and form is complied with. Lord Sankey L.C. said:

"A Bill, within the scope of sub-section (6) of section 7A, which received lhe Royal Assent without having been approved by H

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

A the electors in accordance with that section, would not be a valid act of the legislature. It would be ultra vires section 5 of the Act of .1865."

The Bribery Afnenclment Act, 1958, in Ranasinghe, was enacted in exercise of the ordinary legislative power and therein was inserted section B 41 which could be made only in pxercise of the constituent power according to the special procedure prescribed in section 29(4) of the Ceylon (Con- stitutions) Order. In this situation, only section 41 of the Amending Act was held io be invalid and severed because the special procedure for the constituent power was· required only for that provision and not the rest. In c the instant case the entire Tenth Schedule is enacted in exercise of the Constituent power under Article 368, · not merely para 7 therein, and this has been done without following the mandatory special procedure prescribed. It is, therefore, not a case of severing the invalid constituent part from the remaining ordinary legislation. Ranasinghe could have ap- D plication if in an ordinary legislation outside the ambit of Article 368, a provision which could be made only in exercise of the constituent power according to Article .368 had been inserted without following the special procedure, and severance of the invalid constituent part alone was the . question. Ranasinghe is, therefore, distinguishable.

E Apart from inapplicability of the Doctrine of Severability to a Bill to which the proviso to clause (2) of Article 368 applies, for the reasons given, it does not apply in the present case to strike down para 7 alone retaining the remaining part of the Tenth Schedule. In the first place, the discipline for exercise of the constituent power was consciously and deliberately p. adopted instead of resorting to the mode of ordinary legislation in accord- ance with sub-clause (e) of clause (1) of Articles 102 and 191, which would render the decision on the question of disqualification on the ground of defection also amenable to judicial review as in the case of decision on questions relating to other disqualifications. Moreover, even the test ap- plicable for applying the Doctrine of Severability to ordinary legislation as G summarised 'in R.M.D. Chamarbaughwalla v. nie Union of India, (1957) S.C.R. 930, indicates that para 7 alone is not severable to permit retention of the remaining part of the Tenth Schedule as valid legislation. The settled . test whether the enactment would have been made without para 7 indicates that the legislative intenf was to make the enactment only with para 7 H therein and not without it. This intention is manifest throughout and

KIHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 803

evident from the fact that but for para 7 the enactment did not require the A discipline of _Article 368 and exercise of the constituent power. Para 7 follows para 6 the contents of which indicate the importance given to para 7 while enacting the Tenth Schedule. The entire exercise, as reiterated time and again in the debates, particularly the Speech of the Law Minister while piloting the Bill in the Lok Sabha and that of the Prime Minister in the B Rajya Sabha, was to emphasise that total exclusion of judicial review of the Speaker's decision by all courts including the Supreme Court, was the prime object of enacting the Tenth Schedule. The entire legislative history shows this. How can the Doctrine of Severability be applied in such a situation to retain the Tenth Schedule striking down para 7 alone ? This is further reason for inapplicability of this doctrine. C

Point 'F' - Violation of basic features

The provisions in the Tenth Schedule minus para 7, assuming para 7 to be severable as held in the majority opinion, can be sustained only if D they do not violate the basic structure of the Constitution or damage any of its basic features. This is settled by Kesavananda Bharti (1973] Supp. S.C.R. 1. The question, therefore, is whether there is violation of any of the basic features of the Constitution by the remaining part of the Tenth Schedule, even assuming the absence of ratification in accordanee with the proviso to clasue (2) of Article 368 results in invalidation of para 7 alone. E

Democracy is a part of the basic structure of our Constitutioin; and rule of law, and free and fair elections are basic features of democracy. One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualificationsby an independent authority. It is only by a fair adjudica- tion of such disputes relating to validity of electrons and subsequent disqualifications of members that true reflection of the electoral mandate and governance by rule of law essential for democracy can be ensured. In the democratic pattern adopted in our Constitution, not only the resolution of election dispute is entrusted to a judicial tribunal, but even the decision on questions as to disqualifcation of members under Articles 103 and 192 is by the President/Governor in accordance with the ouinion of the Elec- tion Commission. The constitutional scheme, therefore, for decision on questions as to disqualification of members after being duly elected, con- templates adjudication of such disputes by an· indepel!dent authority out- H

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

A side the House, namely, President/Governor in accordance with the opinion of the Election Commission, a11 ·of whom are high constitutional . functionaries with security of tenure independent of the will of the House. Sub-clause (e) of clause (1) in Articles 102 and 191 which provides for enactment of any law by the Parliament to prescribe any disqualification other than those prescribed in the earlier sub-clauses of clause (1), clearly indicates that all disqualifications of members were contemplated within the scope of Articles 102 and 191. Accordingly, all disqualifications includ- ing disqualification on the ground of defection, in our constitutional scheme, are different species of the same genus, namely, disqualification, and the constitutional scheme does not contemplate any difference in their basic traits and treatment. It is undisputed that the disqualification on the ground of defection could as well hav~ been prescribed by an ordinary law made by the Parliament under A;ticles 102 (1) (e) and 191 (1) (e) instead of by resort to the constituent power of enacting the Tenth Schedule. This itself indicates that all disqualifications of members according to the con- D situtional scheme were meant to be decided by an independent authority outside the House such as the President/Governor, in accordance with the opinion of another similar independent constitutional functionary, the .,., -" Election Commission of India, who enjoys the security of tenure of a Supreme Court judge with the same terms and conditions of office. Thus, for ihe purpose of entrusting the decision of the question of disqualification of a member, the constitutional scheme envisages an independent authority outside the House and not within it, which m'ay be dependent on the pleasure of the majority in the House for its tenure.

The Speaker's office is undoubtedly high and has considerable aura with the attribute of impartiality. This aura of the office was even greater when the Constitution was framed and yet the framers of the Constitution •.. did not choose to vest the authority of adjudicating disputes as to dis- qualification of members to the Speaker; and provision was made in Articles 103 and 192 for decision of such disputes by the President/Gover- nor in accordance with the opinion of the Election Commission. To reason is not far to seek.

The Speaker being an authority within the House and his tenure being dependent o~ the will of the majority therein, likelihood of suspicion of bias could not be ruled out. The question as to disqualification of a H member has adjudicatory disposition and, therefore, requires the decision

KIHOTO HOLLORAN v. ZACHILLHU [VERMA, J.] 805

... to be rendered in consonance with the scheme for adjudication of disputes. A Rule of law has in it firmly entrenched, natural justice, of which, rule against Bias is a necessary concomitant; and basic .postulates of Rule against B_ias are; Nemo judex in causa sua - 'A Judge is disqualified from determining any case in which he may be, or may fairly be suspected to be, biased'; and 'it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.' This B appears to be the underlying principle adopted by the framers of the Constitution in not designating the Speaker as the authority to decide _x election "disputes and questions -as to disqualification of members under Artides 103, 192 and 329 and opting for an independent authority outside the House. The framers of the Constitution had in this manner kept the c office of the Speaker away from this controversy. There is nothig unusual in this scheme if we bear in mind that the final authority for removal of a Judge of the Supreme Court and High Court its outside the judiciary in the Parliament under Article 124(4). On the same principle the authority rt to decide the question of disqualification of a member of legislature is outside the House as envisaged by Articles 103 and 192. -._., .Jn the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such dispute with no provision for any appeal or revision against the Speaker's decision to any independent outside authority. This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution sine~ the Speaker cannot be treated as an authority contemplated for being entrusted with this function by the basic postulates of the Constitution, notwithstanding the great dignity attaching to that office with the attribute of impartiality. ..... ,. F It is the Vice-President of India who is ex-officio Chairman of the Rajya Sabha and his position, being akin to that of the President of India, is different from that of the Speaker. Nothing said herein relating to the office of the Speaker applies to the Chairman of the Rajya Sabha, that is, the Vice-President of India. However, the only authority named for the Lok Sabha and the Legislative Assell)blies is the Speaker of the House and G . -, entrustment of this adjudicatory function fouls with the constitutional scheme and, therefore, violates a basic feature of the Constitution. Remain- ing part of the Tenth Schedule also is rendered invalid notwithstanding the ... fact that this defect would not ,apply to the Rajya Sabha alone whose Chairman is the Vice- President of India, since the Tenth Schedule be- H

806 SUPREME COURT REPORTS (1992] 1 S.C.R. ,.. A comes unworkable for the Lok Sabha and the State Legislatlires. The staturory exception of Doctrine of Necessity has no application since designation of authority in the Tenth Schedule is made ·by choice while enacting the legislation instead of adopting the other available options.

Since the conferment of authority is on the Speaker and that B provision cannot be sustained for the reason given, even without para 7, the entire Tenth Schedule is rendered invalid in the absence of any valid authority for decision of the dispute.

)'.. Thus, even .if the entire Tenth Schedule cannot be held unconstitu- c tional merely on the ground of absence of ratification of the Bill, assuming it is permissible to strike down para 7 alone, the remaining part of the Tenth Schedule is rendered unconstitutional also on account of violation of the aforesaid basic feature. Irrespective of the view on the question of effect of absence of ratification, the entire Tenth Schedule .must be struck down as unconstitutional. 'tc~~ •) D Point 'G' - Other contentions < We have reached the conclusion that para 7 of the Tenth Schedule is ~ ,\- unconstitutional; that the entire Tenth.Schedule is constitutionally invalid in the absence of prior ratification in accordance with the proviso to clause (2) E of Article 368; that the Doctrine of Severability does not apply in the present case of a constitutional amendment which suffers from the defect of absence of ratification as required by the proviso to clause (2) of Article 368; that the remaining part of the Tenth Schedule minus para 7 is also unconstitutional

F for violation of a basic feature of the Constitution; and that the entire Tenth Schedule is, therefore, constitutionally invalid rendering the Constitution .... ~

(Fifty-Second Amendment) Act, 1985 still born and an abortive attempt to amend the constitution. In view of this conclusion, it is not necessary for us to express our concluded opinion on the other grounds of·challenge to ihe

• constitutional validity of the entire Tenth Schedule urged at the hearing on the basis of alleged violation of certain other basic features of the Constitu- G ' tion including the right of members based on Article 105 of the Constitution. ; These are our detailed reasons for the operative conclusions pro- nounced by us earlier on November 12, 1991. ..,., R.P.