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
The observations relating to the office of the speaker do not apply to the chairman of the Rajya Sabha that is the Vice President of India
805F G 87
Since the conferment of authority is on the Speaker and the provision being unworkable for the Lok sabha and the State Legislatures cannot be sustained even without para 7 the entire Tenth Schedule is rendered invalid in the absence of any valid authority for decision of the dispute notwithstanding the fact that this defect would not apply to the Rajya sabha alone whose Chairman is the Vice President of India
The statutory exception of doctrine of necessity has no application since designation of authority in the Tenth Schedule is made by choice while enacting the legislation instead of adopting the other available options
805H 806A B  ORIGINAL JURISDICTION Transfer Petition Civil No40 of 1991
Under Article 139 A1 of the Constitution of India
WITH Writ Petition Civil No 17 of 1991
Soli J Sorabjee Vijay Hansaria and Sunil Kr
Jain for the Petitioner Ejaz Maqbool and Markand D Adkar for the Respondents
The Judgment of the Court was delivered by 711 OPERATIVE CONCLUSIONS IN THE MAJORITY OPINION Per VENKATACHALIAH K JAYACHANDRA REDDY AND AGRAWAL JJ

The Writ Petitions Transfer Petitions Civil Appeals Special Leave Petitions and other connected matters raising common questions as to the constitutional validity of the constitution 52nd Amendment Act 1985 in so far as it seeks to introduce the Tenth Schedule in the Constitution of India were heard together
Some of these matters involve investigation and determination of factual controversies and of the extent of applicability to them of the conclusions reached on the various constitutional issues
That exercise shall have to be undertaken in the individual cases separately
The present judgment is pronounced in the Transfer Petition No 40 of 1991 seeking the transfer of the Writ Petition Rule No 242190 on the file of the High Court of Guwahati to this Court
The Transfer Petition is allowed and the aforesaid Writ Petition is withdrawn to this Court for the purpose of deciding the constitutional issues and of declaring the law on the matter
For the reasons to be set out in the detailed judgment to follow the following are the operative conclusions in the majority opinion on the various constitutional issues A That having regard to the background and evolution of the principles underlying the Constitution 52nd Amendment Act 1985 in so far as it seeks to introduce the Tenth Schedule in the Constitution of India the provisions of Paragraph 7 of the Tenth Schedule of the Constitution in terms and in effect bring about a change in the operation and effect of Articles 136 226 and 227 of the Constitution of India and therefore the amendment would require to be ratified in accordance with the proviso to sub Article 2 of Article 368 of the Constitution of India
B That there is nothing in the said proviso to Article 368 2 which detracts from the severability of a provision on account of the inclusion of which the Bill containing the Amendment requires ratification from the rest of the provisions of such Bill 712 Which do not attract and require such ratification
Having regard to the mandatory language of Article 368 2 that thereupon the constitution shall stand amended the operation of the proviso should not be extended to constitutional amendments in a Bill which can stand by themselves without such ratification
C That accordingly the Constitution 52nd Amendment Act 1985 in so far as it seeks to introduce the Tenth Schedule in the constitution of India to the extent of its provisions which are amenable to the legal sovereign of the amending process of the union Parliament cannot be overborne by the proviso which cannot operate in that area
There is no justification for the view that even the rest of the provisions of the constitution 52nd Amendment Act 1985 excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368 2 was not so ratified
D That Paragraph 7 of the Tenth Schedule contains a provision which is independent of and stands apart from the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and therefore is a severable part
The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7
E That the Paragraph 2 of the Tenth Schedule to the Constitution is valid
Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the Legislatures of the States
It does not violate their freedom of speech freedom of vote and conscience as contended
The provisions of Paragraph 2 do not violet any rights or freedom under Article 105 and 194 of the Constitution
The provisions are salutory and are intended to strengthen the 713 fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections
F The contention that the provisions of the Tenth Schedule even with the exclusion of Paragraph 7 violate the basic structure of the Constitution in that they affect the democratic rights of elected members and therefore of the principles of Parliamentary democracy is unsound and is rejected
G The Speakers Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjucating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review
However having regard to the Constitutional Scheme in the Tenth Schedule judicial review should not cover any stage prior to the making of a decision by the speakersChairmen
Having regard to the Constitutional intendment and the status of the repository of the adjudicatory power no quia timet actions are permissible the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave immediate and irreversible repercussions and consequence
H That Paragraph 61 of the Tenth Schedule to the extent it seeks to impart finality to the decision of the SpeakersChairmen is valid
But the concept of statutory finality embodied in Paragraph 6 1 does not detract from or abrogate judicial review under Articles 136226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates mala fides non compliance with Rules of Natural Justice and perversity are concerned
I That the deeming provision in Paragraph 6 2 of the Tenth Schedule attracts an immunity analogous to that in Articles 122 1 and 212 1 of the Constitution as understood and explained in Keshav singh s Case Spl
Ref No 1  to protect the validity of proceedings from mere irregularities of procedure
The deeming provision having regard to the words be deemed to be proceedings in Parliament or proceedings 714 in the Legislature of a State confines the scope of the fiction accordingly
J That contention that the investiture of adjudicatory functions in the SpeakersChairmen would by itself vitiate the provision on the ground of likelihood of political bias is unsound and is rejected
The SpeakersChairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House
They are expected to and do take far reaching decisions in the functioning of Parliamentary democracy
Vestiture of power to adjudicate questions under the Tenth Schedule in such a constitutional functionaries should not be considered exceptionable
K In the view we take of the validity of Paragraph 7 it is unnecessary to pronounce on the contention that judicial review is a basic structure of the Constitution and Paragraph 7 of the Tenth Schedule violates such basic structure 
The factual controversies raised in the Writ Petition will however have to be decided by the High Court applying the principles declared and laid down by this judgment
The Writ Petition is accordingly remitted to the High Court for such disposal in accordance with law
Operative conclusions in the minority opinion Per SHARMA AND VERMA JJ For the reasons to be given in our detailed judgment to follow our operative conclusions in the minority opinion on the various constitutional issues are as follows 1
Para 7 of the Tenth Schedulein clear terms and in effect excludes the jurisdiction of all courts including the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 to entertain any challenge to the decision under para 6 on any ground even of illegality or perveristy not only at an interim stage but also after the final decision on the question of disqualification on the ground of defection
Para 7 of the Tenth Schedule therefore in terms and in effect 715 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
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
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 unconstitutional since the constituent power was not exercised as prescribed in Article 368 and therefore the Constitution did not stand amended in accordance with the terms of the Bill providing for the amendment
Doctrine of Severability cannot be applied to a Bill making a constitutional amendment where any part thereof attracts the Proviso to clause 2 of Article 368
Doctrine of Severability is not applicable to permit striking down para 7 alone saving the remaining provisions of the Bill making the Constitutional Amendment on the ground that para 7 alone attracts the proviso to clause 2 of Article 368
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
8Democracy is a part of the basic structure of the Constitution and free and fair elections with provision for resolution of disputes relating to 716 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 adjudicatory machinery for resolving disputes relating to the competence of Member of the House is envisaged as an attribute of this basic feature
The tenure of the Speaker who is the authority in the Tenth Schedule to decide this dispute is dependent on the continuous support of the majority in the House and therefore he the Speaker does not satisfy the requirement of such an independent adjudicatory authority and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature
Consequently the entire constitution Fifty Second Amendment Act 1985 which inserted the Tenth Schedule together with clause 2 in Articles 102 and 191 must be declared unconstitutional or an abortive attempt to so amend the constitution
It follows that all decisions rendered by the several Speakers under the Tenth Schedule must also be declared nullity and liable to be ignored
On the above conclusions it does not appear necessary or appropriate to decide the remaining question urged
ORDER The Transfer Petition is allowed and the Writ Petition Rule No 2421 of 1990 on the file of the High Court of Guwahati is withdrawn to this Court for the purpose of deciding the constitutional issues and of declaring the law on the matter
In accordance with the majority opinion the factual controversies raised in the Writ Petition will however have to be decided by the High Court Applying the principles declared and laid down by the majority
The Writ Petition is accordingly remitted to the High Court for such disposal in accordance with law
VENKATACHALIAH J
In these petitions the constitutional validity of the Tenth Schedule of the Constitution introduced by the Constitution Fifty Second Amendment Act
1985 is assailed
These two cases were 717 amongst a batch of Writ Petitions Transfer Petitions civil Appeals Special Leave Petitions and other similar and connected matters raising common questions which were all heard together
On 12111991 we made an order pronouncing our findings and conclusions upholding the constitutional validity of the amendment and of the provisions of the Tenth Schedule except for Paragraph 7 which was declared invalid for want of ratification in terms of and as required by the proviso to Article 368 2 of the Constitution
In the order dated 12111991 our conclusions were set out and we indicated that the reasons for the conclusions would follow later
The reasons for the conclusions are now set out
This order is made in Transfer Petition No 40 of 1991 and in Writ Petition No 17 of 1991
We have not gone into the factual controversies raised in the Writ Petition before the Writ Petition before the Guwahati High Court in Rule No2421 of 1990 from which Transfer Petition No 40 of 1991 arises
Indeed in the order of 12th November 1991 itself the said Writ Petition was remitted to the High Court for its disposal in accordance with law
Shri FS Nariman Shri Shanti Bhushan Shri MC Bhandare Shri Kapil Sibal Shri Sharma and shri Bhim Singh learned counsel addressed arguments in support of the petitions
Learned Attorney General Shri Soli J SorabjeeShri RK GargShri Santhosh Hegde sought to support the constitutional validity of the amendment
Shri Ram Jethmalani has attacked the validity of the amendment for the same reasons as put forward by Shri Sharma
Before we proceed to record our reasons for the conclusions reached in our order dated 12th November 1991 on the contentions raised and argued it is necessary to have a brief look at the provisions of the Tenth Schedule
The Statement of Objects and Reasons appended to the Bill which was adopted as the Constitution Fifty Second Amendment Act 1985 says The evil of political defections has been a matter of national concern
If it is not combated it is likely to undermine the very foundation of our democracy and the principles which sustain it
With this object an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti defection 718 Bill
This Bill is meant for outlawing defection and fulfilling the above assurance
 On December 8 1967 the Lok sabha had passed an unanimous Resolution in terms following a high level Committee consisting of representatives of political parties and constitutional experts be set up immediately by Government to consider the problem of legislators changing their allegiance from one party to another and their frequent crossing of the floor in all its aspects and make recommendations in this regard
 The said Committee known as the Committee on Defections in its report dated January 7 1969 inter alia observed Following the Fourth General Election in the short period between March 1967 and February 1968 the Indian political scene was characterised by numerous instances of change of party allegiance by legislators in several States
Compared to roughly 542 cases in the entire period between the First and Fourth General Election at least 438 defections occurred in these 12 months alone
Among Independents 157 out of a total of 376 elected joined various parties in this period
That the lure of office played a dominant part in decisions of legislators to defect was obvious from the fact that out of 210 defecting legislators of the States of Bihar Haryana Madhya Pradesh Punjab Rajasthan Uttar Pradesh and West Bengal 116 were included in the Council of Ministers which they helped to bring into being by defections
The other disturbing features of this phenomenon were multiple acts of defections by the same persons or set of persons Haryana affording a conspicuous example few resignations of the membership of the legislature of explanations by individual defectors indifference on the part of defectors to political proprieties constituency preference or public opinion and the belief held by the people and expressed in the press that corruption and bribery were behind some of these defections
emphasis supplied 719 The Committee on Defections recommended that a defector should be debarred for a period of one year or till such time as he resigned his seat and got himself re elected from appointment to the office of a Minister including Deputy Minister or Speaker or Deputy Speaker or any post carrying salaries or allowances to be paid from the Consolidated Fund of India or of the State or from the funds of Government Undertakings in public sector in addition to those to which the defector might be entitled as legislator
The Committee on Defections could not however reach an agreed conclusion in the matter of disqualifying a defector from continuing to be a Member of ParliamentState Legislator
Keeping in view the recommendations of the committee on Defections the Constitution Thirty Second Amendment Bill 1973 was introduced in the Lok Sabha on May 16 1973
It provided for disqualifying a Member from continuing as a Member of either House of Parliament or the State Legislature on his voluntarily giving up his membership of the political party by which he was set up as a candidate at such election or of which he became a Member after such election or on his voting or abstaining from voting in such House contrary to any direction issued by such political party or by any person or authority authorised by it in this behalf without obtaining prior permission of such party person or authority
The said Bill however lapsed on account of dissolution of the House
Thereafter the Constitution Forty eight Amendment Bill 1979 was introduced in the Lok Sabha which also contained similar provisions for disqualification on the ground of defection
This Bill also lapsed and it was followed by the Bill which was enacted into the Constitution Fifty Second Amendment Act 1985
This brings to the fore the object underlying the provisions in the Tenth Schedule
The object is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy
The remedy proposed is to disqualify the Member of either House of Parliament or of the State Legislature who is found to have defected from continuing as a Member of the House
The grounds of disqualification are specified in Paragraph 2 of the Tenth Schedule
Paragraph 21 relates to a Member of the House belonging to a political party by which he was set up as a candidate at the election
Under 720 Paragraph 21 a such a Member would incur disqualification if he voluntarily gives up his membership of such political party
Under clause b he would incur the disqualification if he votes or abstains from voting in the House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf without obtaining in either case prior permission of such political party person or authourity and such voting or abstention has not been condoned by such political party person or authority within fifteen days from the date of such voting or abstention
This sub para would also apply to a nominated member who is a Member of a political party on the date of his nomination as such Member or who joins a political party within six months of his taking oath
Paragraph 22 deals with a Member who has been elected otherwise than as a candidate set up by any political party and would incur the disqualification if he joins any political party after such election
A nominated Member of the House would incur his disqualification under sub para 3 if he joins any political party after the expiry of six months from the date on which he takes his seat
Paragraphs 3 and 4 of the Tenth Schedule however exclude the applicability of the provisions for disqualification under para 2 in cases of split in the original political party or merger of the original political party with another political party
These provisions in the Tenth Schedule give recognition to the role of political parties in the political process
A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme
A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party
The provisions of Paragraph 21 a proceed on the premise that political propriety and morality demand that if such a person after the election changes his affiliation and leaves and political party which had set him up as a candidate at the election then he should give up his Membership of the legislature and go back before the electorate
The same yard stick is applied to a person who is elected as an Independent candidate and wishes to join a political party after the election
Paragraph 2 1 b deals with a slightly different situation ie a variant where dissent becomes defection
If a Member while remaining a 721 Member of the political party which had set him up as a candidate at the election votes or abstains from voting contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf he incurs the disqualification
In other words it deals with a Member who expresses his dissent from the stand of the political party to which he belongs by voting or abstaining from voting in the House contrary to the direction issued by the political party
Paragraph 6 of the Tenth Schedule reads 6 1 If any question arises as to whether a Member of a House has become subject to disqualification under this Schedule the question shall be referred for the decision of the Chairman or as the case may be the Speaker of such House and his decision shall be final Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification the question shall be referred for the decision of such Member of the House as the House may elect in this behalf and his decision shall be final
2 All proceedings under sub Paragraph 1 of this Paragraph in relation to any question as to disqualification of a Member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or as the case may be proceedings in the Legislature of a State within the meaning of Article 212
 Paragraph 7 says 7
Bar of jurisdiction of courts Notwithstanding anything in this Constitution no court shall have any jurisdiction in respect of any matter connected with the disqualification of a Member of a House under this Schedule
The challenge to the constitutional validity of the Amendment which introduces the Tenth Schedule is sought to be sustained of many grounds
It is urged that the constitutional Amendment introducing Paragraph 7 of the Tenth Schedule in terms and in effect seeks to make a change in Chapter IV of Part V of the Constitution in that it denudes the jurisdiction of the 722 Supreme Court under Article 136 of the Constitution of India and in Chapter V of part VI in that it takes away the jurisdiction of the High Courts under Article 226 and that therefore the legislative Bill before presentation to the President for assent would require to be ratified by the Legislature of not less than one half of the States by resolution to that effect
In view of the admitted position that no such ratification was obtained for the Bill it is contended the whole Amending Bill not merely Paragraph 7 fails and the amendment merely remains an abortive attempt to bring about an amendment
It is further contended that the very concept of disqualification for defection is violative of the fundamental values and principles underlying Parliamentary democracy and violates an elected representative s freedom of speech right to dissent and freedom of conscience and is therefore unconstitutional as destructive of a basic feature of the Indian Constitution
It is also urged that the investiture in the Speaker or the Chairman of the power to adjudicate disputed defections would violate an important incident of another basic feature of the Constitution viz Parliamentary democracy
It is contended that an independent fair and impartial machinery for resolution of electoral disputes is an essential and important incident of democracy and that the vesting of the power of adjudication in the Speaker or the Chairman who in the India Parliamentary system are nominees of political parties and are not obliged to resign their party affiliations after election is violative of this requirement
It is alternatively contended that if it is to be held that the amendment does not attract the proviso to Article 3682 then Paragraph 7 in so far as it takes away the power of judicial review which in itself is one of the basic features of the Constitution is liable to be struck down
There are certain other contentions which upon a closer examination raise issues more of construction than constitutionality
For instance some arguments were expanded on the exact connotations of a split as distinct from a defection within the meaning of Paragraph 3
Then again it was urged that under Paragraph 2b the expression any direction is so wide that even a direction which if given effect to and implemented might bring about a result which may itself be obnoxious to and violative of constitutional ideals and values would be a source of disqualification 
These are indeed matters of construction as to how in the context in which the occasion for the introduction of the Tenth Schedule arose and the high purpose it is intended to serve the expression any direction occurring in Paragraph 723 2b is to be understood
Indeed in one of the decisions cited before us Prakash Singh Badal  Ors
vs Union of India  Ors
 AIR 1987 Punjab and Haryana 263 this aspect has been considered by the High Court
The decision was relied upon before us
We shall examine it presently
Supporting the constitutionality of the Amendment respondents urge that the Tenth Schedule creates a non justiciable constitutional area dealing with certain complex political issues which have no strict adjudicatory disposition
New rights and obligations are created for the first time uno flatu by the Constitution and the Constitution itself has envisaged a distinct constitutional machinery for the resolution of those disputes
These rights obligations and remedies it is urged which are in their very nature and innate complexities are in political thickets and are not amenable to judicial processes and the Tenth Schedule has merely recognised this complex character of the issues and that the exclusion of this area is constitutionally preserved by imparting a finality to the decisions of the Speaker or the Chairman and by deeming the whole proceedings as proceedings within Parliament or within the House of Legislature of the States envisaged in Articles 122 and 212 respectively and further by expressly excluding the Courts  jurisdiction under Paragraph 7
Indeed in constitutional and legal theory it is urged there is really no ouster of jurisdiction of Courts or of Judicial Review as the subject matter itself by its inherent character and complexities is not amenable to but outside judicial power and that the ouster of jurisdiction under Paragraph 7 is merely a consequential constitutional recognition of the non amenability of the subject matter to the judicial power of the State the corollary of which is that the Speaker or the Chairman as the case may be exercising powers under Paragraph 61 of the Tenth Schedule function not as a statutory Tribunal but as a part of the State s Legislative Department
It is therefore urged that no question of the ouster of jurisdiction of Courts would at all arise inasmuch as in the first place having regard to the political nature of the issues the subject matter is itself not amenable to judicial power
It is urged that the question in the last analyses pertains to the constitution of the House and the Legislature is entitled to deal with it exclusively
It is further urged that Judicial Review apart from Judicial Review of the legislation as inherent under a written constitution is 724 merely a branch of administrative law remedies and is by no means a basic feature of the Constitution and that therefore Paragraph 7 being a constitutional provision cannot be invalidated on some general doctrine not found in the Constitution itself
On the contentions raised and urged at the hearing the questions that fall for consideration are the following A The Constitution Fifty Second Amendment Act 1985 in so far as it seeks to introduce the Tenth Schedule is destructive of the basic structure of the constitution as it is violative of the fundamental principles of Parliamentary democracy a basic feature of the Indian constitutionalism and is destructive of the freedom of speech right to dissent and freedom of conscience as the provisions of the Tenth Schedule seek to penalise and disqualify elected representatives for the exercise of these rights and freedoms which are essential to the sustenance of the system of Parliamentary democracy
B Having regard to the legislative history and evolution of the principles underlying the Tenth Schedule Paragraph 7 thereof in terms and in effect brings about a change in the operation and effect of Article 136 226 and 227 of the Constitution of India and therefore the Bill introducing the amendment attracts the proviso to Article 3682 of the constitution and would require to be ratified by the legislative of the States before the Bill is presented for Presidential assent
C In view of the admitted non compliance with proviso to Article 3682 not only Paragraph 7 of the Tenth Schedule but also the entire Bill resulting in the Constitution Fifty Second Amendment Act 1985 stands vitiated and the purported amendment is abortive and does not in law bring about a valid amendment
Or whether the effect of such non compliance invalidates Paragraph 7 alone and the other provisions which by themselves do not attract the proviso do not become invalid
D That even if the effect of non ratification by the legislature 725 of the States is to invalidate Paragraph 7 alone the whole of the Tenth Schedule fails for non severability
Doctrine of severability as applied to ordinary statutes to promote their constitutionality is inapplicable to constitutional Amendments
Even otherwise having regard to legislative intent and scheme of the Tenth Schedule the other provisions of the Tenth Schedule after the severance and excision of Paragraph 7 become truncated and unworkable and cannot stand and operate independently
The Legislature would not have enacted the Tenth Schedule without Paragraph 7 which forms its heart and core
E That the deeming provision in Paragraph 62 of the Tenth Schedule attracts the immunity under Articles 122 and 212
The Speaker and the Chairman in relation to the exercise of the powers under the Tenth Schedule shall not be subjected to the jurisdiction of any Court
The Tenth Schedule seeks to and does create a new and non justiciable area of rights obligations and remedies to be resolved in the exclusive manner envisaged by the Constitution and is not amenable to  but constitutionally immune from curial adjudicative processes
F That even if Paragraph 7 erecting a bar on the jurisdiction of Courts is held inoperative the Courts  jurisdiction is in any event barred as Paragraph 61 which imparts a constitutional finality to the decision of the Speaker or the Chairman as the case may be and that such concept of finality  bars examination of the matter by the Courts
G The concept of free and fair elections as a necessary concomitant and attribute of democracy which is a basic feature includes an independent impartial machinery for the adjudication of the electoral disputes
The Speaker and the Chairman do not satisfy these incidents of an independent adjudicatory machinery
The investiture of the determinative and adjudicative jurisdiction 726 in the Speaker or the Chairman as the case may be would by itself vitiate the provision on the ground of reasonable likelihood of bias and lack of impartiality and therefore denies the imperative of an independent adjudicatory machinery
The Speaker and Chairman are elected and hold office on the support of the majority party and are not required to resign their Membership of the political party after their election to the office of the Speaker or Chairman
H That even if Paragraph 7 of the Tenth Schedule is held not to bring about a change or affect Articles 136 226 and 227 of the Constitution the amendment is unconstitutional as it erodes and destroys judicial review which is one of the basic features of the constitution
Re ContentionA The Tenth Schedule is part of the constitution and attracts the same cannons of construction as are applicable to the expounding of the fundamental law
One constitutional power is necessarily conditioned by the others as the Constitution is one coherent document
Learned counsel for the petitioners accordingly say that Tenth Schedule should be read subject to the basic features of the Constitution
The Tenth Schedule and certain essential incidents of democracy it is urged cannot co exist
In expounding the processes of the fundamental law the Constitution must be treated as a logical whole
Westel Woodbury Willoughby in the Constitutional Law of the United States states The Constitution is a logical whole each provision of which is an integral part thereof and it is therefore logically proper and indeed imperative to construe one part in the light of the provisions of the other parts 2nd Edn
Vol1 page 65 A constitutional document outlines only broad and general principles meant to endure and be capable of flexible application to changing circumstances a distinction which differentiates a statue from a Charter under which all statutes are made
Cooley on Constitutional Limitations says 727 Upon the adoption of an amendment to a constitution the amendment becomes a part thereof as much so as if it had been originally incorporated in the Constitution and it is to be construed accordingly 8th Edn
1 page 129 13
In considering the validity of a constitutional amendment the changing and the changed circumstances that compelled the amendment are important criteria
The observations of the US Supreme Court in Maxwell vs Dow 44 lawyer s Edition 597 at page 605 are worthy of note  to read its language in connection with the known condition of affairs out of which the occasion for its adoption may have arisen and then to construe it if there be therein any doubtful expressions in a way so far as is reasonably possible to forward the known purpose or object for which the amendment was adopted  The report of the Committee on Defections took note of the unprincipled and unethical defections induced by considerations of personal gains said 
What was most heartening was the feeling of deep concern over these unhealthy developments in national life on the part of the leaders of political parties themselves
Parliament mirrored this widespread concern  page 1 14
It was strenuously contended by Shri Ram Jethmalani and Shri Sharma that the provisions of the Tenth Schedule constitute a flagrant violation of those fundamental principles and values which are basic to the sustenance of the very system of Parliamentary democracy
The Tenth Schedule it is urged negates those very foundational assumptions of Parliamentary democracy of freedom of speech of the right to dissent and of the freedom of conscience
It is urged that unprincipled political defections may be an evil but it will be the beginning of much greater evils if the remedies graver than the disease itself are adopted
The Tenth Schedule they say seeks to throw away the baby with the bath water
Learned counsel argue that crossing the floor as it has come to be called mirrors the meanderings of a troubled conscience on issues of political 728 morality and to punish an elected representative for what really amounts to an expression of conscience negates the very democratic principles which the Tenth Schedule is supposed to preserve and sustain
Learned counsel referred to the famous speech to the Electors of Bristol 1774 where Edmund Burke reportedly said It ought to be the happiness and glory of a representative to live in the strictest union the closest correspondence and the most unreserved communication with his constituents
Their wishes ought to have great weight with him their opinion high respect their business unremitted attention
It is his duty to sacrifice his repose his pleasures his satisfactions to theirs and above all ever and in all cases to prefer their interest to his own
But his unbiased opinion his mature judgment his enlightened conscience he ought not to sacrifice to you to any man or to any set of men living
Your representative owes you not his industry only but his judgment and he betrays instead of serving you if he sacrifices it to your opinion
 see Parliament Functions Practice  Procedures by JAG Griffith and Michael Ryle 1989 Edn page 70 15
Shri Jethmalani and Shri sharma also relied upon certain observations of Lord Shaw in Amalgamated Society or Railway Servants vs Osborne to contend that a provision which seeks to attach a liability of disqualification of an elected Member for freely expressing his views on matters of conscience faith and political belief are indeed restraints on the freedom of speech restraints opposed to public policy
In that case a registered trade union framed a rule enabling it to levy contributions on the Members to support its efforts to obtain Parliamentary representation by setting up candidates at elections
It also framed a rule requiring all such candidates to sign and accept the conditions of the Labour Party and be subject to its whip
The observations in the case relied upon by learned counsel are those of Lord Shaw of Dunfermline who observed Take the testing instance should his view as to right and wrong on a public issue as to the true line of service to the realm as to the real interests of the constituency which has elected him or even of the society which pays him differ from the decision of the parliamentary party and the maintenance by it of its 729 policy he has come under a contract to place his vote and action into subjection not to his own convictions but to their decisions
My Lords I do not think that such a subjection is compatible either with the spirit of our parliamentary constitution or with that independence and freedom which have hither to been held to lie at the basis of representative government in the United Kingdom page 111 For the people having reserved to themselves the choice of their representatives as the fence to their properties could do it for no other end but that they might always be freely chosen and so chosen freely act and advise as the necessity of the commonwealth and the public good should upon examination and mature debate be judged to require  page 113 Still further in regard to the Members of Parliament himself he too is to be free he is not to be the paid mandatory of any man or organization of men nor is he entitled to bind himself to subordinate his opinions on public questions to others for wages or at the peril of pecuniary loss and any contract of this character would not be recognized by a Court of law either for its enforcement or in respect of its breach  page 115 It is relevant to observe here that the rule impugned in that case was struck down by the Court of Appeal whose decision was upheld by the House of Lords on grounds of the Society s competence to make the rule
It was held that the rule was beyond its powers
Lord Shaw however was of the view that the impugned rule was opposed to those principles of public policy essential to the working of a representative government
The view expressed by Lord Shaw was not the decision of the House of Lords in the case
But the real question is whether under the Indian constitutional scheme is there any immunity from constitutional correctives against a 730 legislatively perceived political evil of unprincipled defections induced by the lure of office and monetary inducements 16
The points raised in the petitions are indeed far reaching and of no small importance invoking the sense of relevance of constitutionally stated principles to unfamiliar settings 
On the one hand there is the real and imminent threat to the very fabric of Indian democracy posed by certain levels of political behavior conspicuous by their utter and total disregard of well recognised political proprieties and morality
These trends tend to degrade the tone of political life and in their wider propensities are dangerous to and undermine the very survival of the cherished values of democracy
there is the legislative determination through experimental constitutional processes to combat that evil
On the other hand there are as in all political and economic experimentations certain side effects and fall out which might affect and hurt even honest dissenters and conscientious objectors
These are the usual plus and minus of all areas of experimental legislation
In these areas the distinction between what is constitutionally permissible and what is outside it is marked by a hazy gray line  and it is the Court s duty to identify  darken and deepen the demarcating line of constitutionality a task in which some element of Judges  own perceptions of the constitutional ideals inevitably participate
There is no single litmus test of constitutionality
Any suggested sure decisive test might after all furnish a transitory delusion of certitude where the complexities of the strands in the web of constitutionality which the Judge must alone disentangle do not lend themselves to easy and sure formulations one way or the other
It is here that it becomes difficult to refute the inevitable legislative element in all constitutional adjudications
All distinctions of law even Constitutional law are in the ultimate analyses matters of degree
At what line the white  fades into the black  is essentially a legislatively perceived demarcation
In his work Oliver Wendell Holmes Free Speech and the Living Constitution 1991 Edition New York University Publication Pohlman says All distinctions of law as Holmes never tired of saying were 731 therefore matters of degree Even in the case of constitutional adjudication in which the issue was whether a particular exercise of power was within or without the legislature s authority the judge s decision will depend on a judgment or intuition more subtle than any articulate major premise As the particular exertion of legislative power approached the hazy gray line separating individual rights from legislative powers the judge s assessment of constitutionality became a subtle value judgment
The judge s decision was therefore not deductive formal or conceptual in any sense
page 217 emphasis supplied Justice Holmes himself had said Two widely different cases suggest a general distinction which is a clear one when stated broadly
But as new cases cluster around the opposite poles and begin to approach each other the distinction becomes more difficult to trace the determinations are made one way or the other on a very slight preponderance of feeling rather than articulate reason and at last a mathematical line is arrived at by the contact of contrary decisions which is so far arbitrary that it might equally well have been drawn a little further to the one side or to the other Emphasis supplied See Theory of Torts American Law Review 7 1873 The argument that the constitutional remedies against the immorality and unprincipled chameleon like changes of political hues in pursuit of power and pelf suffer from something violative of some basic feature of the Constitution perhaps ignores the essential organic and evolutionary character of a Constitution and its flexibility as a living entity to provide for the demands and compulsions of the changing times and needs
The people of this country were not beguiled into believing that the menace of unethical and unprincipled changes of political affiliations is something which the law is helpless against and is to be endured as a necessary concomitant of freedom of conscience
The onslaughts on their sensibilities 732 by the incessant unethical political defections did not dull their perception of this phenomenon as a canker eating into the vitals of those values that make democracy a living and worth while faith
This is prominently an area where Judges should defer to legislative perception of and reaction to the pervasive dangers of unprincipled defections to protect the community
Legislation may begin where an evil begins
Referring to the judicial philosophy of Justice Holmes in such areas Pohlman again says A number of Holmes s famous aphorisms point in the direction that judges should defer when the legislature reflected the pervasive and predominant values and interests of the community
He had for example no practical criterion to go on except what the crowd wanted He suggested in a humorous vein that his epitaph   No judge ought to interpret a provision of the Constitution in a way that would prevent the American people from doing what it really wanted to do
If the general consensus was that a certain condition was an evil that ought to be corrected by certain means then the government had the power to do it Legislation may begin where an evil begins Constitutional law like other mortal contrivances has to take some chances Some play must be allowed to the joints if the machine is to work
 All of these rhetorical flourishes suggest that Holmes deferred to the legislature if and when he thought it accurately mirrored the abiding beliefs interests and values of the american public emphasis supplied See Justice Oliver Wendell Holmes Free Speech and the Living Constitution by HL Pohlman 1991 Edn page 233 18
Shri Sharma contends that the rights and immunities under Article 1052 of the Constitution which according to him are placed by judicial decisions even higher than the fundamental right in Article 191a have violated the Tenth Schedule
There are at least two objections to the acceptability of this contention
The first is that the Tenth Schedule does not impinge upon the rights or immunities under Article 1052
Article 1052 of the Constitution provides 105
Powers privileges etc of the Houses of Parliament and 733 of the Members and committees thereof 1  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 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 Member of a House liable in any Court  for anything said or any vote given by him in Parliament
It is difficult to conceive how Article 1052 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
vs Debi Ghosal  3 SCR 318 observed A right to elect fundamental though it is to a democracy is anomalously enough neither a fundamental right nor a Common 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 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 particular brand or system of Government by itself has this attribute of a basic feature as lone as the essential characteristics that entitle a system of government to be called democratic are otherwise satisfied is not necessary to be gone into
Election conducted at regular prescribed intervals 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 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 734 105 2 as urged by Shri Sharma
19Parliamentary democracy envisages that matters involving implementation of policies of the Government should be discussed by the elected representatives of the people
Debate discussion and persuasion 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 expression 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
But a political party functions on the strength of shared beliefs
Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles
Any freedom of its members to vote as they please independently of the political party s declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which in the ultimate analysis is its source of sustenance nay indeed its very 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 uponin political tradition as a desirable state of things
Griffith and Ryle on Parliament Functions Practice  Procedure 1989 Edn page 119 say Loyalty to party is the norm being based on shared beliefs
A divided party is looked on with suspicion by the electorate
It is natural for Members to accept the opinion of their Leaders and Spokesmen on the wide variety of matters on which those Members have no specialist knowledge
Generally Members will accept majority decisions in the party even when they disagree
It is understandable therefore that a Member who rejects the party whip even on a single occasion will attract attention and more criticism than sympathy
To abstain from voting when required by party to vote is to suggest a degree of unreliability
To vote against party is disloyalty
To join with others in abstention 735 or voting with the other side smacks of conspiracy emphasis supplied Clause b of sub para 1 of Paragraph 2 of the Tenth Schedule gives effect to this principle and sentiment by imposing a disqualification on a Member who votes or abstains from voting contrary to any directions Issued by the political party
The provision however recognises two exceptions one when the Member obtains from the political party prior permission to vote or abstain from voting and the other when the Member has voted without obtaining such permission but his action has been condoned by the political party
This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting contrary to the direction of the party to which he belongs
This in itself again may provide a clue to the proper understanding and construction of the expression Any Direction in clause b of Paragraph 21 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 with this aspect separately
The working of the modern Parliamentary democracy is complex
The area of the inter se relationship between the electoral constituencies and their elected representatives has many complex features and overtones
The citizen as the electorate is said to be the political sovereign
As long as regular general elections occur the electorate remains the arbiter of the ultimate composition of the representative legislative body to which the Government of the day is responsible
There are of course larger issues of theoretical and philosophical objections to the legitimacy of a representative Government which might achieve a majority of the seats but obtains only minority of the electoral votes
It is said that even in England this has been the phenomenon in every general elections in this century except the four in the years 1900 1918 1931 and 1935
But in the area of the inter relationship between the constituency and its elected representative it is the avowed endeavour of the latter to requite the expectations of his voters
Occasionally this might conflict with his political obligations to the political party sponsoring him which expects 736 and exacts in its own way loyalty to it
This duality of capacity and functions are referred to by a learned author thus The functions of Members are of two kinds and flow from the working of representative government
When a voter at a general election in that hiatus between parliaments puts his cross against the name of the candidate he is most often consciously performing two functions seeking to return a particular person to the house of commons as Member for that constituency and seeking to return to power as the government of the country a group of individuals of the same party as that particular person
The voter votes for a representative and for a government
He may know that the candidate he votes has little chance of being elected   When a candidate is elected as a Member of the House of Commons he reflects those two functions of the voter
Whatever other part he may play he will be a constituency MP
As such his job will be to help his constituents as individuals in their dealings with the departments of State
He must listen to their grievances and often seek to persuade those in authority to provide remedies
He must have no regard to the political leanings of his constituents for the represents those who voted against him or who did not vote at all as much as those who voted for him
Even if he strongly disagrees with their complaint he may still seek to represent it though the degree of enthusiasm with which he does so is likely to be less great See Parliament Function
Practice and Procedures by JAG Griffith and Ryle 1989 Edn page 69 So far as his own personal views on freedom of conscience are concerned there may be exceptional occasions when the elected representative finds himself compelled to consider more closely how he should act
Referring to these dilemmas the authors say 
The first is that he may feel that the policy of his party whether it is in office or in opposition on a particular matter is not one of which he approves
He may think this because of his personal opinions or because of its special consequences 737 for his constituents or outside interests or because it reflects a general position within the party with which he cannot agree
On many occasions he may support the party despite his disapproval
But occasionally the strength of his feeling will be such that he is obliged to express his 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 which have as we shall see gained new prominence since 1979
No doubt it is superficially paradoxical to see Members on the Government side of the House joining in detailed criticism of the administration and yet voting to maintain that Government in office
But as one prominent critic of government has said there is nothing inherently contradictory in a Member sustaining the Executive in its power or helping it to overcome opposition at the same time as scrutinising the work of the executive in order both to improve it and to see that power is being exercised in a proper and legitimate fashion page 69 and 70 Speaking of the claims of the political party on its elected Member Rodney Brazier says Once returned to the House of Commons the Member s party expects him to be loyal
This is not entirely unfair or improper for it is the price of the party s label which secured his election
But the question is whether the balance of a Member s obligations has tilted too far in favour of the requirements of party
The nonsense that a Whip even a three line whip is no more than a summons to attend the House and that once there the Member is completely free to speak and vote as he thinks fit was 738 still being put about by the Parliamentary Private Secretary to the Prime Minister as recently as 1986
No one can honestly believe that
Failure to vote with his party on a three line whip without permission invites a party reaction
This will range depending on the circumstances and whether the offence is repeated from a quiet word from a Whip and appeals to future loyalty to a ticking off or a formal reprimand perhaps from the Chief Whip himself 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 speech be free in the face of such party threats The answer to the inquiring citizen is that the whip system is part of the conventionally established machinery of political organisation in the house and has been ruled not to infringe a Member s parliamentary privilege in any way
The political parties are only too aware of utility of such a system and would fight in the last ditch to keep it See Constitutional Reform Reshaping the British Political System by Rodney Brazier 1991 Edn
pages 48 and 49 The learned author referring to cases in which an elected Member is seriously unrepresentative of the general constituency opinion or whose personal behaviour falls below standards acceptable to his constituents commends that what is needed is some additional device to ensure that a Member pays heed to constituents  views
Brazier speaks of the efficacy of device where the constituency can recall its representative
Brazier says What sort of conduct might attract the operation of the recall power First a Member might have misused his Membership of the House for example to further his personal financial interests in a manner offensive to his constituents
They might consider that the action taken against him by the house or indeed lack 739 of action was inadequate Thirdly the use of a recall power might be particularly apt when a member changed his party but declined to resign his seats and fight an immediate by election
It is not unreasonable to expect a Member who crosses the floor of the House or who joins a new party to resubmit himself quickly to the electors who had returned him in different colours
Of course in all those three areas of controversial conduct the ordinary process of reselection might well result in the Member being dropped as his party s candidate and obviously would definitely have that result in the third case
But that could only occur when the time for reselection came and in any event the constituency would still have the Member representing them until the next general election
A cleaner and more timely parting of the ways would be preferable
Sometimes a suspended sentence does not meet the case page 52 and 53 Indeed in a sense an anti defection law is a statutory variant of its moral principle and justification underlying the power of recall
What might justify a provision for recall would justify a provision for disqualification for defection
Unprincipled defection is a political and social evil
It is perceived as such by the legislature
People apparently have grown distrustful of the emotive political exultations that such floor crossings belong to the sacred area of freedom of conscience or of the right to dissent or of intellectual freedom
The anti defection law seeks to recognise the practical need to place the proprieties of political and personal conduct whose awkward erosion and grotesque manifestations have been the base of the times above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation
We should we think defer to this legislative wisdom and perception
The choices in constitutional adjudications quite clearly indicate the need for such deference
Let the end be legitimate let it be within the scope of the Constitution and all means which are appropriate which are adopted to that end  are constitutional
See Kazurbach vs Morgan  21
It was then urged 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 740 an outrageous defiance of logic
Shri Jethmalani urged that if floor crossing by one Member is an evil then a collective perpetration of it by 13rd 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 consequences
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 13rd Members of that political party that 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 forensic skill
But we are afraid what was so attractively articulated on closer examination is perhaps 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 perception and assessment of the extant standards of political proprieties and morality
At the same time legislature evisaged 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 credence and reassurance to a presumption of bonafide
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 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
Accordingly we hold that the Paragraph 2 of the Tenth Schedule to the Constitution is valid
Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the Legislatures of the States
It does not violate their freedom of 741 speech freedom of vote and conscience as contended
The Provisions of Paragraph 2 do not violate any rights or freedom under Articles 105 and 194 of the Constitution
The provisions are salutory and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections
The contention that the provisions of the Tenth Schedule even with the exclusion of Paragraph 7 violate the basic structure of the Constitution in they affect the democratic rights of elected Members and therefore of the principles of Parliamentary democracy is unsound and is rejected
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 chapter V of Part VI of the Constitution and that therefore the amending Bill falls within proviso to Article 368 2
We might at the outset notice Shri Sibal s submission on a point of construction of Paragraph 7
Shri Sibal urged that Paragraph 7 properly construed does not seek to oust the jurisdiction of courts under Articles 136 226 and 227 but merely prevents an interlocutory intervention 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 matter 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  jurisdiction shall be strictly construed
Any construction which results in denying the Courts  it it is urged not favoured
Shri Sibhal relied upon the following observations of this Court in HH Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur  Ors vs Union of India  
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 fitted to perform that task
A provision which purports to exclude the jurisdiction of the Courts in certain matters and to deprive the aggrieved party 742 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 Courts for determination of his rights  
The Court will avoid imputing to the Legislature an intention to enact a provision which flouts notions of justice and norms of fairplay unless a contrary intention is manifest from words plain and unambiguous
A provision in a statute will not be construed to defeat its manifest purpose and general values which animate its structure
In an avowedly democratic polity statutory provisions ensuring the security of fundamental human rights including the right to property will unless the contrary mandate be precise and unqualified be construed liberally so as to uphold the right
These rules apply to the interpretation of constitutional and statutory provisions alike page 94 95 It is true that the provision which seeks to exclude the jurisdiction of Courts is strictly construed
See also Mask  Co vs Secretary of State AIR 1940 PC 105
But the rules of construction are attracted where two or more reasonably possible constructions are open on the language of the statute
But 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 of 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 Amendment Bill 1978 both of which had lapsed on the one hand and the Constitution 52nd Amendment Bill 1985 would bring out the avowed and deliberate intent of Paragraph 7 in the Tenth Schedule
The previous constitution 32th and 48th Amendment Bills contained similar provisions for 743 disqualification on grounds of defections but these Bills did not contain any clause ousting the jurisdiction of the court
Determination of disputed disqualifications was left to the Election Commission as in the case of other disqualifications under Article 102 and 103 in the case of members of Parliament and Articles 191 and 192 in the case of Members of Legislature of the States
The Constitution Fifty second Amendment 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 House indicate was to bar the jurisdiction of the Courts under Articles 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
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 3682 arises at all in view of the fact that the area of these rights and obligations being constitutionally rendered non justiciable there is no judicial review under Articles 136226 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 Court in Sri Sankari Prasad Singh Deo vs Union of India and State of Bihar  and Sajjan Singh vs State of Rajasthan  24
In Sankari Prasad s case the question was whether the Amendment 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 not either in terms or in effect seek to make any change in article 226 or in articles 132 and 136
Article 31A aims at saving laws providing for the compulsory acquisition by the State of certain kind of property from the operation of articles 13 read with other relevant articles in Part III while article 31B purports to validate certain specified Acts and Regulations already passed which but for such a provision would be liable to be impugned under Article 13
It is not correct to say that the powers of the High Court under Article 226 to issue writs for the enforcement of any of the rights conferred by Part III or of this Court under Articles 132 and 136 to entertain appeals from orders issuing or refusing such writs are in any way affected
They remain just the same 744 as they were before only a certain class of case has been excluded from the purview of Part III and the courts could no longer interfere no because their powers were curtailed in any manner or to any extent but because there would be no occasion hereafter for the exercise of their power in such cases at 108 In Sajjan Singh s case a similar contention was raised against the validity of the Constitution 17th Amendment Act 1964 by which Article 31 A was again amended and 44 statutes was whether the amendment required ratification under the proviso the Article 368
This Court noticed the question thus  The question which calls for our decision is what would be the requirement about making an amendment in a constitutional provision contained in Part III if as a result of the said amendment the powers conferred on the High Courts under Article 226 are likely to be affected P 940 Negativing the challenge to the amendment on the ground of nonratification 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 the object of removing any possible obstacle in the fulfillment of the socio economic policy in which the party in power believes
If that be 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 purport to change the provisions of Article 226 and it cannot 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  P944 745 The propositions that fell for consideration is Sankari Prasad Singh s and Sajjan 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 adjudicated 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 support 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 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 or would but for Paragraph 7 have operated there is in effect  a change in those provisions attracting the proviso
Indeed this position was recognised in Sajjan Singh s case where it was observed 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 P944 In the present cases though the amendment does not bring in any change directly in the language of Article 136 226 and 227 of the Constitution however in effect paragraph 7 curtails the operation of those Articles respecting matters falling under the Tenth Schedule
There is a change in the effect in Article 136 226 and 227 within the meaning of clause b of the proviso to Article 3682
Paragraph 7 therefore attracts the proviso and ratification was necessary
Accordingly on Point B we hold That having regard to the background and evolution of the principles underlying the Constitution 52nd Amendment Act 1985 in so far as it seeks to introduce the Tenth Schedule in the Constitution of India the provisions of Paragraph 7 of the Tenth Schedule of the constitution in terms and in effect bring 746 about a change in the operation and effect to Articles 136 226 and 227 of the Constitution of India and therefore the amendment would require to be ratified in accordance with the proviso to sub Article 2 of Article 368 of the Constitution of India
Re Contentions C  and D   The criterion for determining the validity of a law is the competence of 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 constituent power and differs in content from the Legislative power the limitations imposed on the constituent power my be substantive as well as procedural
Substantive limitations are those which restrict the field of exercise of the amending power and exclude some areas fro its ambit
Procedural limitations are those which impose restrictions with regard to the mode of the exercise of the amending power
Both these limitations however touch and affect the constituent power itself disregard of which invalidates its exercise
The Constitution provides for amendment in Articles 4 169 368 paragraph 7 of Fifth Schedule and paragraph 21 of Sixth Schedule
Article 4 makes provisions for amendment of the First and the Fourth Schedules Article 169 provides for amendment in the provision of the Constitution which may be necessary for abolition or creation of Legislative Councils in States paragraph 7 of the Fifth Schedule provides for amendment of the Fifth Schedule and paragraph 21 of Sixth Schedule provides for amendment of the Sixth Schedule
All these provisions prescribe that the said amendments can be made by a law made by Parliament which can be passed like any other law by a simple majority in the House of Parliament
Article 368 confers the power to amend the rest of the provisions of the 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 e of the proviso is intended it would then be necessary that the amendment 747 be ratified by the legislature of not less than one half of the States
Although there is no specific enumerated substantive limitation on the power in Article 368 but as arising from very limitation in the word amend  a substantive limitation is inherent on the amending power so that the amendment does not alter the basic structure or destroy the basic features of the Constitution
The amending power under Article 368 is subject to the substantive limitation in that the basic structure cannot be altered or the basic features of the Constitution destroyed
The limitation requiring a special majority is a procedural one
Both these limitations impose a fetter on the competence of Parliament to amend the Constitution and any amendment made in disregard of these limitations would go beyond the amending power
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 valid 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 of this doctrine has been explained by Cooley in the following words It will sometimes be found that an act of 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 conflicts with the constitution or inregard 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 constitution or to accomplish some lawful and even laudable object by means repugnant to the Constitution of the United States 748 or of the State
A statute may contain some such provisions and yet the same act having received the sanction of all branches of the legislature and being in the form of law may contain other useful and salutary provisions not obnoxious to any just constitutional exception
It would be inconsistent with all just principles of constitutional law to adjudge these enactments void because they are associated in the same act but not connected with or dependent on others which are unconstitutional Cooley s Constitutional Limitations 8th Edn
Vol 1 p 359 360 In RMD Chamarbaugwalla vs Union of India   this Court has observed The question whether a statute which is void in part is to be treated as void in toto or whether it is capable of enforcement as to that part which is valid is one which can arise only with reference to laws enacted by bodies which do not possess unlimited powers of legislation as for example the legislatures in a Federal Union
The limitation on their powers may be of two kinds It 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 Constitution sections 91 and 92 of the Canadian Constitution and section 51 of the Australian Constitution or it may be with reference to the character of the legislation which they could enact in respect of subjects assigned to them as for example in relation to the fundamental rights guaranteed in Part III of the Constitution and similar constitutionally protected rights in the American and other Constitutions
When a legislature whose authority is subject to limitations aforesaid enacts a law which is wholly in excess of its powers it is entirely void and must be completely ignored
But where the legislation falls in part within the area allotted to it and in part outside it it is undoubtedly void as to the latter but does it on that account become necessarily void in its entirety The answer to this question must depend on whether what is valid could be separated from what 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
 P940 The doctrine of severability has been applied by this Court in cases of challenge to the validity of an amendment on the ground of disregard of the substantive limitations on the amending power namely alteration of the basic structure
But only 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  Shri Kesavananda Bharti Sripadagalavaru vs State of Kerala 1973 Supp
SCR 1 Minerva Mills Ltd Ors
vs Union of India  Ors
   P Sambhamurthy  Ors etc
vs State of Andhra Pradesh  Anr
  28Is 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 3682 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 proviso to Article 3682 but in respect of the amendments introduced in provisions referred to in clauses a to e of proviso to Article 3682 Parliament alone is not competent to make such amendments on account of some constitutionally recognised federal principle 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
Is there anything compelling in the proviso to Article 3682 requiring it to be construed as excluding the doctrine of severability to such an amendment It is settled rule of statutory construction that the proper function of a proviso is to except and deal with a case which could 750 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  Southern Mahratta railway company vs Bezwada Municipality 1944 71 IA 133 at P 122 Commissioner of Income Tax Mysore vs Indo Mercantile Bank Ltd 1959 Supp 2 SCR 256 at p 266
The proviso to Article 3682 appears to have been introduced with a view to giving effect to the federal principle
In the matter of amendment 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 provisions before the Bill is presented for 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 of Article 368 2
An amendment which otherwise fulfills the requirements of Article 3682 and is outside the specified cases which require ratification cannot be denied legitimacy on the ground alone of the company it keeps
The main part of Article 3682 directs that when a Bill which has been passed by the requisite special majority by both the Houses has received the assent of the President the Constitution shall stand amended in accordance with the terms of the Bill
The proviso cannot have the effect of interdicting this constitutional declaration and mandate to mean that in a case where the proviso has not been complied even the amendments which do not fall within the ambit of the proviso also become abortive
The words the amendment shall also require to be ratified by the legislature indicate that what is required to be ratified by the legislatures of the States is the amendment seeking to make the change in the provisions referred to in clauses a to e of the proviso
The need for and the requirement of the ratification is confined to that particular amendment alone and not in respect of amendments outside the ambit of the proviso
The proviso can have therefore no bearing on the validity of the amendments which do not fall within its ambit
Indeed the following observations of this Court in Sajjan Singh case supra are apposite 751 In our opinion the two parts of Art368 must on a reasonable construction be harmonised with each other in the sense that the scope and effect of either of them should not be allowed to be unduly reduced or enlarged P940 30
During the arguments reliance was placed on the words before the Bill making provision for such amendment is presented to the President for assent to sustain the argument that these words imply that the ratification of the Bill by not less than one half of the States is a condition precedent for the presentation of the Bill for the assent of the President
It is further argued that a Bill which seeks to make a change in the provisions referred to in clauses a to e of the proviso 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 ineffective in its entirety
A similar situation can arise in the context of the main part of Article 3682 which provides when the bill is passed in each House by a majority of 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 passed in each House by the prescribed special majority
An amendment in the First and Fourth Schedule referable to Article 4 can be introduced by Parliament by an ordinary law passed by simple majority
There may be a Bill which may contain amendments made in the First and Fourth Schedules as well as amendments in other provisions of the constitution excluding those referred to in the proviso which can be amended only by a special majority under Article 3682 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 made in view of Article 4 but the amendments in other provisions were in disregard to Article 3682 which requires a special majority
Is not the doctrine of severability applicable to such an amendment so that amendments made in the First and Fourth Schedules may be upheld while declaring the amendments in the other provisions as ineffective A contrary 752 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
In Bribery Commissioner vs Pedrick Ranasinghe   the Judicial Committee has had to deal with a somewhat similar situation
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 4In the exercise of its powers under this section Parliament may amend or repeal any of the provisions of this Order or of any other Order of Her Majesty in council in its application to the Island Provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under the hand of the speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two thirds of the whole number of members of the House including those not present
Every certificate of the Speaker under this sub section shall be conclusive for all purposes and shall not be questioned in any court of law
 In that case it was found that section 41 of the Bribery Amendment 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 appointment 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 Order in Council must be treated if it is to be valid as an implied alteration of the Constitutional provisions about the appointment of judicial officers and could only be made by laws which comply with the special legislative procedure laid down in section 294
Since there was nothing to show that the Bribery Amendment Act 1951 was passed by the necessary two thirds majority it was held that any Bill which does not comply 753 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 ie 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 3682 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 3682 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 3682 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 amendment which contains amendments in provisions which do not require ratification by States as well as amendment in provisions which require such ratification and by application of the doctrine of severability 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
The test of severability requires the Court 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 workable
If the provisions of the Tenth Schedule are considered in the background of the legislative history namely the report of the Committee on Defections  as well as the earlier Bills which were 754 moved to curb the evil of defection it would be evident that the main purpose underlying the constitutional amendment and introduction of the Tenth Schedule is to curb the evil of defection which was causing immense mischief in our body politic
The ouster of jurisdiction of Courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection
It cannot be said that the constituent body would not have enacted the other provisions in the Tenth 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 Bill which do not attract and require such ratification
Having regard to the mandatory language of Article 3682 that  thereupon the Constitution shall stand amended the operation of the proviso should not be extended to constitutional amendments in Bill which can stand by themselves without such ratification
That accordingly the Constitution 52nd Amendment Act 1985 in so far as it seeks to introduce the Tenth Schedule in the Constitution of India to the extent of its provisions which are amenable to the legal sovereign of the amending process of the Union Parliament cannot be overborne by the proviso which cannot operate in that area
There is no justification for the view that even the rest of the provisions of the constitution 52nd Amendment Act 1985 excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 3682 was not so ratified
That Paragraph 7 of the Tenth Schedule contains a provision 755 which is independent of and stands apart from the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and therefore is a severable part
The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7
Re Contentions E  and F  These two contentions have certain over lapping areas between them and admit of being dealt with together
Paragraph 61 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 Speaker immune from Judicial Review It is now well accepted that a finality clause is not a legislative magical incantation which has that effect 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 that some decision shall be final
That provision is a bar to any appeal
But the courts refuse to allow it to hamper the operation of judicial review
As will be seen in this and the following section there is a firm judicial policy against allowing the rule of law to be undermined by weakening the powers of the court
Statutory restrictions on judicial remedies are given the narrowest possible construction sometimes 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 violate the law at will
Finality  is a good thing but justice is a 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 that there is no appeal judicial control of legality is unimpaired
Parliament only gives the impress of finality to 756 the decisions of the tribunal on condition that they are reached in accordance with the law
This has been the consistent doctrine for three hundred years
 Learned Professor further says The normal effect of a finality clause is therefore to prevent any appeal
There is no right of appeal in any case unless it is given by statute
But where there is general provision for appeals for example from quarter session to the High Court by case stated a subsequent Act making the decision of quarter session final on some specific matter will prevent an appeal
But in one case the Court of Appeal has deprived a finality clause of part even of this modest content holding that a question which can be resolved by certiorari or declaration can equally 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 ie matter 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 reopened before another or whether an interlocutory 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 Lord removed the lid and threw it away See Constitutional Fundamentals the Hamlyn Lectures 1989 Edn
p88 In Durga Shankar Mehta vs Raghuraj Singh  the order of the Election Tribunal was made final and conclusive by section 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  but once it is held that it is a judicial tribunal empowered 757 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 legislation
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 are exercisable outside the purview of ordinary 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 give finality to the decision of the Election Tribunal so far as that Act is concerned and does not provide for any further appeal but that cannot in any way cut down or effect the overriding powers which this court can exercise in the matter of granting special leave under article 136 of the Constitution
 p522 34
Again in Union of India vs Jyoti Prakash Mitter  a similar finality clause in Articles 2173 of the Constitution camp up for consideration
This Court said 
The President acting under Article 2173 performs a judicial function of grave importance under the scheme of our Constitution
He cannot act on the advice of his Ministers
Notwithstanding the declared finality of the order of the president the Court has jurisdiction in appropriate cases to set aside the order if it appears that it was passed on collateral considerations or the rules of natural justice were not observed or that the President s judgment was coloured by the advice or representation made by the executive or it was founded on no evidence  p 505
758 Referring to the expression finaloccurring in Article 3113 of the Constitution this Court in Union of India  Anr
vs Tulsiram Patel  Ors
1985 Supp
2 SCR 131 at page 274 held 
The finality given by clause 3 of Article 311 to the disciplinary authority s decision that it was not reasonably practicable to hold the inquiry is not binding upon the court
The court will also examine the charge of mala fides if any made in the writ petition
In examining the relevance of the reasons the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry
If the court finds that the reasons are irrelevant then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause b  35
If the intendment is to exclude the jurisdiction of the superior Courts the language 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 of the Constitution would arise
But comparison of the language in Article 3631 would bring out in contrast the kind of language that may be necessary to achieve any such purpose
In Brundaban Nayak vs Election Commission of India  Anr   in spite of finality attached by Article 192 to the decision of the Governor in respect of disqualification incurred by a member of a State Legislature subsequent to the election the matter was examined by this Court on an appeal by special leave under Article 136 of the Constitution against the decision of the High Court dismissing the writ petition filed under Article 226 of the Constitution
Similarly in Union of India vs Jyoti Prakash Mitter 19713 SCR 483 in spite of finality attached to the order of the President with regard to the determination of age of a Judge of the High Court under Article 217 3 of the Constitution this Court examined the legality of the order passed by the President during the pendency of an appeal filed under Article 136 of the Constitution
There is authority against the acceptability of the argument that the word final occurring in Paragraph 61 has the effect of excluding the 759 jurisdiction of the Courts in Articles 136 226 and 227 36
The cognate questions are whether a dispute of the kind envisaged by Paragraph 6 of the Tenth Schedule is in a non justiciable area and that at all events the fiction in Paragraph 62 that all proceedings under Paragraph 61 of the Tenth Schedule be deemed to be proceedings in Parliament of Proceedings in the Legislature of a State attracts immunity from the scrutiny by Courts as under Article 122 or 212 as the case may be
Implicit in the first of these postulates is the premise that questions of disqualification of members of the House are essentially matters pertaining to the Constitution of the House and therefore the Legislature is entitled to exert its exclusive power to the exclusion of the judicial power
This assumption is based on certain British legislature practices of the past in an area which is an impalpable congeries of legal rules and conventions peculiar to and characteristic of British Parliamentary traditions
Indeed the idea appears to have started with the proposition that the Constitution of the House was itself a matter of privilege of the House
Halsbury contains this statement 1493 Privilege of the House of Commons in relation to its constitution In addition to possessing a complete control over the regulation of its own proceedings and the conduct of its members the House of Commons claims the exclusive right of providing as it may deem fit for its own proper constitution emphasis supplied See Halsbury s Laws of England 4th Edn
34 Pages 603  604 But in the Indian constitutional dispensation the power to decide a disputed disqualification of an elected member of the House is not treated as a matter of privilege and the power to resolve such electoral disputes is clearly judicial and not legislative in nature
The fact that election disputes were at some stage decided by the House of Commons itself was not conclusive that even their power was legislative
The controversy if any in this area is put at rest by the authoritative earlier pronouncements of this Court
760 37In Indira Nehru Gandhi vs Raj Narain Beg J referring to the historical background relating to the resolution of electoral disputes by the House of Common said I do not think that it is possible to contend by resorting to some concept of a succession to the powers of the medieval High Court of Parliament in England that a judicial power also devolved upon our Parliament through the constituent Assembly mentioned in Sec 8 of the Indian Independence Act of 1947
As already indicated by me the Constituent assembly was invested with law making and not judicial powers
Whatever judicial power may have been possessed once by English kings sitting in Parliament constituting the highest Court of the realm in medieval England have devolved solely on the House of Lords as the final court of appeal in England
King in Parliament had ceased to exercise judicial powers in any other way long before 1950
And the House of Commons had certainly not exercised a judicial power as a successor to the one time jurisdiction of the King in Parliament with the possible exception of the power to punish for its contempts  p627  628 In the same case Justice Mathew made these observations as to the imperative judicial nature of the power to resolve disputes
The concept of democracy as visualised by the Constitution presupposes the representation of the people in Parliament and State Legislatures by the method of election
And before an election machinery can be brought into operation there are three requisites which require to be attended to  namely 1 there should be a set of laws and rules making provisions with respect to all matters relating to or in connection with elections and it should be decided as to how these laws and rules are to be made 2 there should be an executive charged with the duty of securing the due conduct of elections and 3 there should be a judicial tribunal to deal with disputes arising out of or in connection with elections  p504 In whichever body or authority the jurisdiction is vested the 761 exercise of the jurisdiction must be judicial in character
This court has held that in adjudicating an election dispute an authority is performing a judicial function and a petition for leave to appeal under Article 136 of the Constitution would lie to this Court against the decision nothwithstanding the provisions of Article 329b emphasis supplied p506 It is also useful to recall the following observations of Gajendragadkar J on the scope of Article 1943 of the Constitution which is analogous to Article 1053 in Special Reference No1 of 1964  This clause requires that the powers privileges and immunities which are claimed by the House must be shown to have subsisted at the commencement of the Constitution ie 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 so in every case where a power is claimed it is necessary to enquire whether it was an existing power at the relevant time
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 other words the inquiry which is prescribed by this clause is is the power in question shown or proved to have subsisted in the House of Commons at the relevant time See page 442 This question is answered by Beg J in Indira Nehru Gandhi s case I think at the time our Constitution was framed the decision 762 of an election dispute had ceased to be a privilege of the House of Commons in England and therefore under Article 1053 it could not be a privilege of Parliament in this country p505 38Indeed in dealing with the disqualifications and the resolution of disputes relating to them under Articles 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 Nehru Gandhi s case said Not much argument is needed to show that unless there be a machinery for 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 candidate should not resort to malpractices would be in the nature of a mere pious wish without any legal sanction
It is further plain that if the validity of the election declared to be valid only if we provide a forum for going into those grounds and prescribe a law for adjudicating upon those grounds  See page 468 It is therefore inappropriate to claim that the determinative jurisdiction of the Speaker or the Chairman in the Tenth Schedule is not a judicial power and is within the non justiciable legislative area
The classic exposition of Justice Issacs J in Australian Boot Trade Employees Federation vs Whybrow  Co 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 vs Union of India at 611
Issacs J stated If the dispute is as to the relative rights of parties as they rest on past or present circumstances the award is in the nature of a judgment which might have been the decree of an ordinary judicial 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 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 61 is preeminently of a judicial complexion
The fiction in Paragraph 62 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 62 have their corresponding expression in Articles 1221 and 2121 respectively
This attracts an immunity from mere irregularities of procedures
That apart even after 1986 when the Tenth Schedule was introduced the Constitution did not evince any intention to invoke Article 122 or 212 in the conduct of resolution of disputes as to the disqualification of members under Articles 1911 and 1021
The very deeming provision implies that the proceedings of disqualification are in fact not before the House but only before the Speaker as a specially designated authority
The decision under paragraph 61 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 judicial scrutiny of the decision of the Speaker or Chairman exercising power under Paragraph 61 of the Tenth Schedule
But then is the Speaker or the Chairman acting under Paragraph 61 is a Tribunal All tribunals are not courts though all Courts are Tribunals
The word Courts is used to designate those Tribunals which are set up in an organised State for the Administration of Justice
By Administration of justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish wrongs
Whenever there is an infringement of a right or an injury the Courts are there to restore the vinculum juris which is disturbed
See Harinagar Sugar Mills 764 Ltd vs Shyam Sunder Jhunjhunwala  Ors  In that case Hidayatullah J said 
By courts is meant courts of civil judicature and by tribunals those bodies of men who are appointed to decide controversies arising under certain special laws
Among the powers of the State is included the power to decide such controversies
This is undoubtedly one of the attributes of the State and is aptly called the judicial power of the State
In the exercise of this power a clear division is thus noticeable
Broadly speaking certain special matters go before tribunals and the residue goes before the ordinary courts of civil judicature
Their procedures may differ but the functions are not essentially different
What distinguishes them has never been successfully established
Lord Stamp said that the real distinction is that the courts have an air of detachment
But this is more a matter of age and tradition and is not of the essence
Many tribunals in recent years have acquitted themselves so well and with such detachment as to make this test insufficient
 p362 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 Companies Ltd vs PN Sharma and Anr 19652 SCR 366 this Court said  
The main and the basic test however is whether the adjudicating power which a particular authority is empowered to exercise has been conferred on it by a statute and can be described as a part of the State s inherent power exercised in discharging its judicial function
Applying this test there can be no doubt that the power which the State Government exercises under R65 and R66 is a part of the State s judicial power There is in that sense a lis there is affirmation by one party and denial by another and the dispute necessarily involves the rights and obligations of the parties to it
The order which the State Government ultimately passes is 765 described as its decision and it is made final and binding  p386 and 387 By these well known and accepted tests of what constitute a Tribunal the Speaker or the Chairman acting under paragraph 61 of the Tenth Schedule is a Tribunal
In the operative conclusions we pronounced on 12th November 1991 we indicated in clauses G and H therein that Judicial review in the area is limited in the manner indicated
If the adjudicatory authority is a tribunal as indeed we have held it to be why then should its scope be so limited The finality clause in paragraph 6 does not completely exclude the jurisdiction of the courts under Articles 136 226 and 227 of the Constitution
But it does have the effect of limiting the scope of the jurisdiction
The principle that is applied by the courts is that in spite of a finality clause it is open to the court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority
Such an action can be ultra vires for the reason that it is in contravention of a mandatory provision of the law conferring on the authority the power to take such an action
It will also be ultra vires the powers conferred on the authority if it is vitiated by mala fides or is colourable exercise of power based on extraneous and irrelevant considerations
While exercising their certiorari jurisdiction the courts have applied the test whether the impugned action falls within the jurisdiction of the authority taking the action or it falls outside such jurisdiction
An ouster clause confines judicial review in respect of actions falling outside the jurisdiction of the authority taking such action but precludes challenge to such action on the ground of an error committed in the exercise of jurisdiction vested in the authority because such an action cannot be said to be an action without jurisdiction
An ouster clause attaching finality to a determination therefore does oust certiorari to some extent and it will be effective in ousting the power of the court to review the decision of an inferior tribunal by certiorari if the inferior tribunal has not acted without jurisdiction and has merely made an error of law which does not affect its jurisdiction and if its decision is not a nullity for some reason such as breach of rule of natural justice
See  Administrative Law by HWR Wade 6th Edn pp 724 726 Anisminic Ltd vs Foreign Compensation commission   SE Asia Fire Bricks vs Non Metallic Products 766 In Makhan Singh vs State of Punjab 1964 4 SCR 797 while considering the scope of judicial review during the operation of an order passed by the President under Article 3591 suspending the fundamental right guaranteed under Article 21 of the Constitution it has been held that the said order did not preclude the High Court entertaining a petition under Article 226 of the Constitution where a detenu had been detained in violation of the mandatory provisions of the detention law or where the detention has been ordered mala fide
It was emphasised that the exercise of a power mala fide was wholly outside the scope of the Act conferring the power and can always be successfully challenged
p 825 Similarly in State of Rajasthan vs Union of India   decided by a seven judge Bench high Court was considering the challenge to the validity of a proclamation issued by the President of India under Article 356 of the constitution
At the relevant time under clause 5 of Article 356 the satisfaction of the President mentioned in clause 1 was final and conclusive and it could not be questioned in any court on any ground
All the learned judges have expressed the view that the proclamation could be open to challenge if it is vitiated by mala fides
While taking this view some of the learned judges have made express reference to the provisions of clause5
In this context Bhagwati J as the learned Chief Justice then was speaking for himself and AC Gupta J has stated Of course by reason of cl
5 of article 356 the satisfaction of the President is final and conclusive and cannot be assailed on any ground but this immunity from attack cannot apply where the challenge is not that the satisfaction is improper or unjustified but that there is no satisfaction at all
In such a case it is not the satisfaction arrived at by the President which is challenged but the existence of the satisfaction itself
Take for example a case where the President gives the reason for taking action under article 356 cl
1 and says that he is doing so because the Chief Minister of the State is below five feet in height and therefore in his opinion a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution
Can the so called satisfaction of the President in such a case not be challenged 767 on the ground that it is absurd or perverse or mala fide or based on a wholly extraneous and irrelevant ground and is therefore no satisfaction at all
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 notwithstanding the provision contained in clause 5 of the said Article introduced by the Constitution38th Amendment Act 1975p
94 But then what did I mean by saying that 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 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 mala fide in such a situation it will be tantamount 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  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 e exercise of the executive power
Such a judicial scrutiny is one which comes into operation when the exercise of the executive power is colourable or mala fide and based on extraneous 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 Art356 but this does not mean that the Court possesses no jurisdiction 768 in the matter at all
Even in respect of cl
5 of article 356 the Courts have a limited sphere of operation in that on the reasons given by the President in his order if the Courts find that they are absolutely extraneous and irrelevant and based on personal and illegal consideration the Courts are not powerless to strike down the order on the ground of mala fide if proved p120 In Union of India vs Jyoti Prakash Mitter supra dealing with the decision of the President under Article 217 3 on the question as to the age of a judge of the High Court requiring a judicial approach it was held that the field of judicial review was enlarged to cover violation of rules of natural justice as well as an order based on no evidence because such errors are errors of jurisdiction
c In Union of India  Anr
vs Tulsiram Patel  Ors
supra this Court was 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 inquiry
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 SpeakerChairman 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 SpeakerChairman under paragraph 6 would be confined to jurisdictional errors only viz infirmities based on violation of constitutional mandate mala fides non compliance with rules of natural justice and perversity
In view of the limited scope of judicial review that is available on account of the finality clause in paragraph 6 and also having regard to the constitutional intendment and the status of the repository of the adjudicatory power ie SpeakerChairman judicial review cannot be available at a stage prior to the making of a decision by the SpeakerChairman and a quia 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 irreversible repercussions and consequence
769 42
In the result we hold on contentions E and F  That the Tenth Schedule does not in providing for an additional grant for disqualification and for adjudication of disputed disqualifications seek to create a nonjusticiable constitutional area
The power to resolve such disputes vested in the Speaker or chairman is a judicial power
That Paragraph 61 of the Tenth Schedule to the extent it seeks to impart finality to the decision of the SpeakersChairmen is valid
But the concept of statutory finality embodied in Paragraph 61 does not detract from or abrogate judicial review under Articles 136 226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates mala fides non compliance with Rules of Natural Justice and perversity are concerned
That the deeming provision in Paragraph 62 of the Tenth Schedule attracts an immunity analogous to that in Articles 1221 and 2121 of the Constitution as understood and explained in Keshav Singh s Case Spl
No 1   to protect the validity of proceedings from mere irregularities of procedure
The deeming provision having regard to the words be deemed to be proceedings in Parliament or proceedings in the Legislature of a State confines the scope of the fiction accordingly
The SpeakerChairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating 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 SpeakersChairman
Having regard to the constitutional intendment and the status of the repository of the adjudicatory power no quia timet actions are permissible the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave immediate and irreversible 770 repurcussions and consequence
Re  ContentionG The argument is that an independant adjudicatory machinery for resolution of electrol disputes is an essential incident of democracy which is a basic feature of Indian consitutionalism
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 61 of the Tenth Schedule is violative of a basic feature
It is also urged that a Speaker under the Indian Parliamentary tradition is not required to resign his membership of the political party on whose strength he gets elected and that inevitably the decision of the Speaker is not free tugs and pulls of political polarisations
It is urged that the Speaker who has not resigned his membership of the political party cannot be impartial and at all events his functioning will not be free from reasonable likelihood of bias
The Tenth Schedule breaks away from the constitutional pattern for resolution of disqualifications envisaged in Articles 103 and 192 of the Constitution which vest jurisdiction in this behalf in the President or the Governor acting according to the opinion of Election Commission
The disqualifications for defection could very well have been included in Article 1021 or 1911 as a ground additional to the already existing grounds under clauses a to e in which event the same dispute resolution machinery would have dealt with the disqualifications for defections also
But the Tenth Schedule apparently
attempted a different experiment in respect of this particular ground of disqualification
45The question is whether the investiture of the determinative jurisdiction in the Speaker would by itself stand vitiated as denying the idea of an independent adjudicatory authority
We are afraid the criticism that the provision incurs the vice of unconstitutionality ignores the high status and importance of the office of the Speaker in a Parliamentary democracy
The office of the speaker is held in the highest respect and esteem in Parliamentary traditions
The evolution of the institution of Parliamentary democracy has as its pivot the institution of the Speaker
The Speaker holds a high important and ceremonial office
All questions of the well being of the House 771 are matters of Speaker s concern 
The Speaker is said to be the very embodiment of propriety and impartiality
He performs wide ranging functions including the performance of important functions of a judicial character
Mavalankar who was himself a distinguished occupant of that high office says  In parliamentary democracy the office of the Speaker is held in very high esteem and respect
There are many reasons for this
Some of them are purely historical and some are inherent in the concept of parliamentary democracy and the powers and duties of the Speaker
Once a person is elected Speaker he is expected to be above parties above politics
In other words he belongs to all the members or belongs to none
He holds the scales of justice evenly irrespective of party or person though no one expects that he will do absolute justice in all matters because as a human being he has his human drawbacks and shortcomings
However everybody knows that he will intentionally do no injustice or show partiality
Such a person is naturally held in respect by all See  G V Mavalankar  The Office of Speaker Journal of Parliamentary Information April 1956 Vol
2 No 1 p33 Pundit 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
Therefore it is right that that should be an honoured position a free position and should be occupied always by men of outstanding ability and impartiality
See  HOP
IX 1954 CC 3447 48 Referring to the Speaker Erskine may says  The Chief characteristics attaching to the office of Speaker in the House of Commons are authority and impartiality
As a symbol of his authority he is accompanied by the Royal Mace 772 which is borne before him when entering and leaving the chamber and upon state occasions by the Sergeant at Arms attending the House of commons and is placed upon the table when he is in the chair
In debate all speeches are addressed to him and he calls upon Members to speak a choice which is not open to dispute
When he rises to preserve order or to give a ruling on a doubtful point he must always be heard in silence and no Member may stand when the Speaker is on his feet
Reflections upon the character or actions of the Speaker may be punished as breaches of privilege
His action cannot be criticized incidentally in debate or upon any form of proceeding except a substantive motion
His authority in the chair is fortified by many special powers which are referred to below
Confidence in the impartiality of the Speaker is an indispensable condition of the successful working of procedure and many conventions exist which have as their object not only to ensure the impartiality of the Speaker but also to ensure that his impartiality is generally recognised  See  Erskine May Parliamentary Practice 20th edition p 234 and 235 MN Kaul and SL Shakdher in Practice and procedure of Parliament  4th Edition say  The all important conventional and ceremonial head of Lok Sabha is the Speaker
Within the walls of the House his authority is supreme
This authority is based on the Speaker s absolute and unvarying impartiality the main feature of the office the law of its life
The obligation of impartiality appears in the constitutional provision which ordains that the Speaker is entitled to vote only in the case of equality of votes
Moreover his impartiality within the House is secured by the fact that he remains above all considerations of party or political career and to that effect he may also resign from the party to which he belonged p 104 46
It would indeed be unfair to the high traditions of that great 773 office to say that the investiture in it of this Jurisdiction would be vitiated for violation of a basic feature of democracy
It is inappropriate to express distrust in the High 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 to change and elevate the man inside
Accordingly the contention that the vesting of adjudicatory functions in the SpeakersChairmen would by itself vitiate the provision on the ground of likelihood of political bias is unsound and is rejected
The SpeakersChairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House
They are expected to and to take far reaching decisions in the functioning of Parliamentary democracy
Vestiture of power of adjudicate questions under the Tenth Schedule in such a constitutional functionaries should not be considered exceptionable
48Re  Contention H  In the 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
We may now notice one other contention as to the construction of the expression any direction  occurring in paragraph 21b
It is argued that if the expression really attracts within its sweep every direction or whip of any kind whatsoever it might be unduly restrictive of the freedom of speech and the right of dissent and that therefore should be given a meaning limited to the objects and purposes of the Tenth Schedule
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 Parkash Singh Badal  Ors
vs Union of India  Ors
 AIR 1987 Punjab and Haryana 263 where such a restricted sense was approved
Tewatia J said  If the expression  any direction is to be literally construed then it would make the people s representative a wholly political party s representative which decidedly he is not
The Member would virtually lose his identity and would become a rubber 774 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 democracyparliamentary democracy which is the basic feature of the Constitution
Where giving of narrow meaning and reading down of the provision can save it from the vice of unconstitutionality the Court should read it down particularly when it brings the provision in line with the avowed legislative intent    the purpose of enacting paragraph 2 could be no other than to insure stability of the democratic system which in the context of CabinetParliamentary 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 Member contrary to any direction issued by his party would by necessary implication envisage voting or abstaining from voting in regard to a motion or proposal which if failed as a result of lack or requisite support in the House would result in voting the Government out of power which consequence necessarily follows due to well established constitutional convention only when either a motion of no confidence is passed by the House or it approves a cut motion in budgetary grants
Former because of the implications of Article 753 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 p313  314 The reasoning of the learned judge that a wider meaning of the words any direction would cost it its constitutionality  does not commend to us
775 But we approve the conclusion that these words require to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Tenth Schedule
Those objects and purposes define and limit the contours of its meaning
The assignment of a limited meaning is not to read it down to promote its constitutionality but because such a construction is a harmonious construction in the context
There is no justification to give the words the wider meaning
While construing Paragraph 21b 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 regulating the Procedure of the House Art 1051 and art1941
The disqualification imposed by Paragraph 21 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 21b is confined in its scope by keeping in view the object underlying the amendments contained in the Tenth Schedule namely to curb the evil or mischief of political defections 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 abstinence or when such voting or abstinence 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 disqualification under paragraph 21b would have to be limited to a vote on motion of confidence or no confidence in the Government or where the motion under consideration relates to a matter which was an integral policy and programme of the political party on the basis of which it approached the elaborate
The voting or abstinence from voting by a member against the direction by the political party on such a motion would amount to disapproval of the programme of the basis of which he went before the electorate and got himself elected and such voting or abstinence would amount to a breach of the trust reposed in him by the electorate
Keeping in view the consequences of the disqualification ie termination of the membership of a House it would be appropriate that the 776 direction or whip which results in such disqualification under Paragraph 21b is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the disqualification under Paragraph 21b of the Tenth Schedule so that the member concerned has fore knowledge of the consequences flowing from his conduct in voting or abstaining from voting contrary to such a direction
There are 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 more members joined the spliter group a couple of days later would the latter also be a part of the split group
This question of construction cannot be in vaccuo
In the present cases we have dealt principally with constitutional issues
The meaning to be given to split must necessarily be examined in a case in which the question arises in the context of its particular facts
No hypothetical predications can or need be made
We accordingly leave this question open to be decided in an appropriate case
Before parting with the case we should advert to one other circumstance
During the interlocutory stage the constitution bench was persuaded to make certain interlocutory orders which addressed as they were to the Speaker of the House though in a different capacity as an adjudicatory forum under the Tenth Schedule engendered complaints of disobedience culminating in the filing of petitions for initiation of proceedings of contempt against the Speaker
It was submitted that when the very question of jurisdiction of the Court to deal with the matter was raised and even before the constitutionality of Paragraph 7 had been pronounced upon self restraint required that no interlocutory orders in a sensitive area of the relationship between the legislature and the Courts should been made
The purpose of interlocutory orders is to preserve in status quo the rights of the parties so that the proceedings 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 3682 of the Constitution
It has now been unanimously held that Paragraph 7 attracted the proviso to article 3682
The interlocutory orders in this case were necessarily 777 justified so that no land slide changes were allowed to occur rendering proceedings ineffective and infructuous
With the finding and observations as aforesaid WPNo 17 of 1991 is dismissed
Writ petition in Rule No 2421 of 1990 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 some members of the Negaland legislative Assembly under the Tenth Schedule inserted by the Constitution Fifty Second Amendment Act 1985 was heard along with some other similar matters relating to several Legislative Assemblies including those of Manipur Meghalaya Madhya Pradesh Gujarat and Goa since all of them involved the decision of certain constitutional questions relating to the constitutional validity of para 7 of the Tenth Schedule and consequently the validity of the Constitution 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 status quo in some cases resulting in irreversible consequences which could not be corrected in the event of para 7 of the Tenth Schedule being held invalid or the impugned orders of the Speakers being found justiciable and on merits illegal and therefore the urgency increased of deciding the questions debated before us at the earliest
For this reason we indicated during the course of the hearing that we would pronounce our operative conclusions soon after conclusion of the hearing with reasons therefor to follow
Accordingly on conclusion of the hearing on November 1 1991 we indicated that the operative conclusions would be pronounced by us at the next sitting of the Bench when it assembled on November 12 1991 after the Diwali Vacation
The operative conclusions of the majority Venkatachaliah Reddy and Agrawal JJ as well as of the miority Lalit Mohan Sharma and JSVermaJJwere thus pronounced on November 12 1991
We are now indicating herein our reasons for the operative conclusions of the minority view
The unanimous opinion according to the majority as well as the minority is that para 7 of the tenth Schedule enacts a provision for complete exclusion of judicial review including the jurisdiction of the 778 Supreme Court under Article 136 and of the High Courts under Articles 226 and 227 of the Constitution and therefore it makes in terms and in effect a change in Articles 136 226 and 227 of the Constitution which attracts the proviso to clause 2 of Article 368 of the Constitution and therefore ratification by the specified number of State Legislatures before the Bill was presented to the President for his assent was necessary in accordance therewith
The majority view is that in the absence of such ratification by the State legislatures it is para 7 alone of the Tenth Schedule which is unconstitutional and it being severable from the remaining part of the Tenth Schedule para 7 alone is liable to be struck down rendering the speakers decision under para 6 that of a judicial tribunal amenable to judicial review by the Supreme court and the High courts under Article 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 minority opinion we have held that the entire constitution Fifty Second Amendment Act 1985 is unconstitutional and an abortive attempt to make the constitutional Amendment indicated therein
Before proceeding to give our detailed reasons we reproduce the operative conclusions pronounced by us on November 12 1991 in the minority opinion Lalit Mohan Sharma and JS 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  1Pare 7 of the Tenth Schedule in clear terms and in effect excludes the jurisdiction of all courts including the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 to entertain any challenge to the decision under para 6 on any ground even of illegality or perversity not only 779 at an interim stage but also after the final decision on the question of disqualification on the ground of defection
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
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
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 unconstitutional since the constituent power was not exercised as prescribed in Article 368 and therefore the Constitution did not stand amended in accordance with the terms of the Bill providing for the amendment
5Doctrine of Severability cannot be applied to a Bill making a constitutional amendment where any part thereof attracts the proviso to clause 2 of Article 368
Doctrine of Severability is not applicable to permit striking down para 7 alone saving the remaining provisions of the Bill making the Constitutional Amendment on the ground that para 7 alone attracts the proviso to clause 2 of Article 368
780 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
Democracy is a part of the basic structure of the Constitution and free and fair elections with provision for resolution of disputes relating to 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 adjudicatory machinery for resolving disputes relating to the competence 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 dependent on the continuous support of the majority in the House and therefore he the Speaker does not satisfy the requirement of such an independent adjudicatory authority and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature
9Consequently the entire Constitution Fifty Second Amendment Act 1985 which inserted the Tenth Schedule together with clause 2 in Articles 102 and 191 must be declared unconstitutional or an abortive attempt to so amend the Constitution
10It follows that all decisions rendered by the several Speakers under the Tenth Schedule must also be declared nullity and liable to be ignored
On the above conclusions it does not appear necessary or appropriate to decide the remaining questions urged
 it 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 Assemblies under the Tenth Schedule
Arguments on these questions were 781 addressed to us by several learned counsel namely the learned Attorney General SShri AK Sen Shanti Bhushan MC Bhandare FS Nariman Soli J Sorabjee RK Garg Kapil Sibal MR Sharma Ram Jethmalani NS Hegde OP Sharma Bhim Singh and RF Nariman
It may be mentioned that some learned counsel modified their initial stand to some extent as the hearing progressed by advancing alternative arguments as well
Accordingly the several facets of each constitutional issue debated before us were fully focused during the hearing
The main debate however was on the construction of paras 6 and 7 of the Tenth Schedule and the validity of the Constitutional Amendment
Arguments were also addressed on the question of violation if anyof any basic feature of the Constitution by the provisions of the Tenth Schedule
The points involved in the decision of the constitutional issues for the purpose of our opinion may be summarised broadly as under  A Construction of para 6 of the Tenth Schedule
Its effect and the extent of exclusion of judicial review thereby
B Construction of para 7 of the Tenth Schedule
Its effect and the extent of exclusion of judicial review thereby
C In case of total exclusion of judicial review including the jurisdiction of Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution by the Tenth Schedule does para 7 make a change in these Articles attracting the proviso to clause 2 of Article 368 of the Constitution  D The effect of absence of prior ratification by the State Legislatures before the Bill making provisions for such amendment was presented to the President for assent on the constitutional validity of the Tenth Schedule
E Severability of para 7 from the remaining part of the Tenth Schedule and its effect on the 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 constitutionality for this reason
782 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 that the entire Tenth Schedule and consequently the Constitution Fifty Second Amendment Act 1985 is unconstitutional on the view we have taken on the other points
We are therefore giving our reasons only in respect of the points decided by us leading to the conclusion we have reached
At this stage it would be appropriate to mention the specific stand of the Speakers taken at the hearing
The learned counsel who appeared for the several Speakers clearly stated that they were instructed to apprise us that the Speakers did not accept the jurisdiction of this Court to 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
Accordingly 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
No doubt this Court s jurisdiction to decide the constitutional 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 details of any particular case since the merits of each case are dealt separately in the order of that case
Suffice it to say that the unanimous view 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 nullity liable to be so declared and ignored
We consider it apposite in this context to recall the duty of the Court in such delicate situations
This is best done by quoting Chief Justice Marshall in Cohens vs Virginia   404 5 LEd257 291 1821 wherein he said  783 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 constitution
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 constitution
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 
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 court the cause should depend on the validity of such a law that would be a case arising under the 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 US Supreme Court pointed out in the State of Madras vs VG Row  that the duty of this Court flows from express provisions in our Constitution while such power in the US Supreme Court has been assumed by the interpretative process giving a wide meaning to the due process clause
Sastri CJ at p605 spoke thus Before proceeding to consider this question we think it right to point out what is sometimes overlooked that our constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution unlike as in America where the Supreme Court has assumed extensive powers of 784 reviewing legislative acts under cover of the widely interpreted due process  clause in the Fifth and Fourteenth Amendments
Ifthen 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 crusader s spirit but in discharge of a duty plainly laid upon them by the Constitution
This is especially true as regards the fundamental rights  as to which this court has been assigned the role of a sentinel on the qui vive
While the Court naturally attaches great weight to the legislative judgment it cannot desert its own duty to determine finally the constitutionality of an impugned statute
We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the courts in the new set up are out to seek clashes with legislatures in the country emphasis supplied We are in respectful agreement with the above statement of Sastri CJ and wish to add that even though such an obvious statement may have been necessary soon after the Constitution came into force and may not be a necessary reminder four decades later at this juncture yet it appears apposite in the present context to clear the lingering doubts in some minds
We have no hesitation in adding further that while we have no desire to clutch at jurisdiction at the same time we would not be deterred in the performance of this constitutional duty whenever the need arises
We would also like to observe the unlike England where there is no written Constitution and Parliament is supreme in our country there is a written Constitution delineating the spheres of jurisdiction of the legislature and the judiciary whereunder the power to construe the meaning of the provisions in the Constitution and the laws is entrusted to the judiciary with finality attached to the decision of this Court inter alia by Article 141 about the true meaning of any enacted provision and Article 144 obliges all authorities in the country to act in aid of this Court
It is therefore not permissible in our constitutional scheme for any other authority to claim that power in exclusivity or in supersession of this Court s verdict
Whatever be the controversy prior to this Court entertaining such a matter it must end when the court is seized of the matter for pronouncing its verdict and it is the constitutional obligation of every person and authority to accept its binding effect when the decision is rendered by this Court
It is also to be remembered that in our constitutional scheme based on 785 democratic principles which include governance by rule of law every one has to act and perform his obligations according to the law of the land and it is the 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 jurisdiction as it is of this Court and also conscious that the power given 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 with effect from 131985 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 principles which sustained it
This amendment is therefore for outlawing defection to sustain our democratic principles
The Tenth Schedule contains eight paras
Para 1 is the interpretation clause defining House  to mean either House of Parliament or the legislative Assembly or as the case may be 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 State the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of a State from the applicability of the provisions of the Tenth Schedule
Para 8 contains the rule making power of the Chairman or the Speaker
For the purpose of deciding the jurisdiction of this Court and the justiciability of the cause it is paras 6 and 7 which are material and they read as under 6
Decision on questions as to disqualification of ground of defection
786 1
If any question arises as to whether a member of a House has become subject to disqualification under this Schedule the question shall be referred for the decision of the Chairman or as the case may be the Speaker of such House and his decision shall be final  Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final
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 proceedings 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
Bar of Jurisdiction on courts
Notwithstanding anything in this Constitution no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule
 We shall now deal with the points involved enumerated earlier
Points A   B  Paras 6  7 of Tenth Schedule In support of the objection raised to the jurisdiction of this Court and the justiciability of the Speaker s decision relating to disqualification of a member it has been urged that sub paragraph 1 of para 6 clearly lays down that the decision of the Chairman or as the case may be the Speaker of such House shall be final and sub paragraph 2 proceeds to say that all proceedings under sub paragraph 1 shall be deemed to the proceedings in Parliament  or   proceedings in the Legislature of a State  within the meaning of Article 122 or Article 212 as the case may be
It was urged that the clear provision in para 6 that the decision of the 787 ChairmanSpeaker on the subject of disqualification under this Schedule 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 decision on this question is not justiciable
Further argument is that para 7 in clear words thereafter reiterates that position by saying that 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
In other words the argument is that para 6 by itself provides for ouster of the jurisdiction of all courts 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
In reply it was urged that 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 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 clause 1 of Articles 122 and 212 but not in clause 2 of either of these 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 ordinary jurisdiction but not the extra ordinary jurisdiction of the High Courts under Article 226  227 and the Plenary jurisdiction of Supreme Court under Article 136
It was also argued that the SpeakerChairman while deciding the question of disqualification of member under para 6 exercises a judicial function of the State which otherwise would be vested in the courts and 788 therefore in this capacity he acts as Tribunal amenable to the jurisdiction under Articles 136 226 and 227 of the Constitution
Shri Sibal also contended 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 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 to exclude the jurisdiction of the High Courts under Articles 226 and 227 and the Supreme Court under Article 136 of the Constitution the finality being for the statute alone
This is apart from the decision being vulnerable on the ground of nullity
Accordingly sub paragraph 1 alone is insufficient to exclude the extra ordinary jurisdiction 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 122 or clause 1 212 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 proceedings in the Legislature 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 function must be confined to the limitation implicit in the words used for creating the fiction and it cannot be given an extended meaning to include therein something in addition
It is also settled that a matter falling within the ambit of clause 1 of either of these two Article 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 procedures 
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 SpeakerChairman 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 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 of sub paragraph 2 of para 6 that it relates to clause 1 of both Articles 122 and 212 and the legal fiction cannot therefore be extended beyond the limits 789 of the express words used in the fiction
In construing the fiction it is not to be extended beyond the language of the Section by which it is created and its meaning must be restricted by the plain words used
It cannot also be extended by importing another fiction
The fiction in para 62 is a limited one 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 scope by reading into it words which are not there and extending it also to clause 2 of these Articles
See Commissioner of Income tax vs Ajax Products Ltd  Moreover it does appear to us that the decision relating to disqualification 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 which is not permissible
That being so the matter falls within the ambit of Clause 1 only of Articles 122 and 212 as a result of which it would be vulnerable on the ground of 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  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 obstinate clause notwithstanding anything in this Constitution  as the opening words of para 7
The non obstinate 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 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 therefore 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 disqualification of a member of a House under this Schedule 
790 One of the constructions suggested at the hearing was that this expression covers only the intermediate stage of the proceedings relating to disqualification under para 6 and not the end stage when the final order is made under para 6 on the question of disqualification
It was suggested that this construction would be in line with the construction made by this Court in its several decisions relating to exclusion of Courts  jurisdiction in election disputes at the intermediate state under Article 329 of the Constitution
This construction suggested of para 7 does not commend to us since it is contrary to the clear and unambiguous language of the provision
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 not merely the intermediate stage of the proceedings relating to disqualification but also the final order on the question of disqualification made under para 6 which is undoubtedly such a matter
There is thus express exclusion of all courts  jurisdiction even in respect of the final order
As earlier indicated by virtue of the finality clause and the deeming provision in para 6 there is exclusion of all courts  jurisdiction to a considerable extent leaving out only the area of justiciability on the ground of illegality or perversity which obviously is relatable only to the final order under para 6
This being so enactment of para 7 was necessarily made to bar the jurisdiction of courts also in respect of matters falling outside the purview of the exclusion made by para 6
para 7 by itself and more so when read along with para 6 of the Tenth Schedule leaves no doubt that exclusion of all courts  jurisdiction by para 7 is total leaving no area within the purview even of the Supreme Court or the High Courts under Articles 136  226 and 227
The language of para 7 being explicit no other aid to construction is needed
Moreover the speech of the Law Minister who piloted the Bill in the Lok Sabha and that of the Prime Minister 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 disqualification including the Speakers  final decision under para 6 on the question of disqualification wholly outside the purview of 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 clearly to provide for total ouster of all courts  jurisdiction
791 In the face of this clear language there is no rule of construction 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 disqualification of a member of a House under the Tenth Schedule including the final decision rendered by the SpeakerChairman 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 Article 368 of the Constitution
Point C  Applicability of Article 3682 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 Chapter IV of part V and Articles 226 and 227 which are 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 further question which arises is of the effect on the Tenth Schedule of the absence of ratification by the specified number of 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 PresidentGovernor 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 vs Union of India and State of Bihar  and Sajjan Singh vs State of Rajasthan  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 792 of supporting this contention they do infact negative it
In Sankari Prasad the challenge was to Articles 31A and 31B inserted in the Constitution by the Constitution First Amendment Act 1951
One of the objections was based on absence of ratification under Article 368
While rejecting this argument the Constitution Bench held as under It will be seen that these Articles do not either in terms or in effect seek to make any change in article 226 or in articles 132 and 136
Article 31A aims at saving laws providing for the compulsory acquisition by the State of a certain kind of property from the operation of article 13 read with other relevant articles in Part III while article 31B purports to validate certain specified Acts and Regulations already passed which but for such a provision would be liable to be impugned under article 13
It is not correct to say that the powers of the High Court under article 226 to issue writs for the enforcement of any of the rights conferred by Part III or of this Court under articles 132 and 136 to entertain appeals from orders issuing or refusing such writs are in any way affected
They remain just the same as they were before  only a certain class of case has been excluded from the purview of Part III and the courts could no longer interfere not because their powers were curtailed in any manner or to any extend but because there would be no occasion hereafter for the exercise of their powers in such cases
 emphasis supplied The test applied was whether the impugned provisions inserted by the Constitutional Amendment did either in terms or in effect seek to make any change in Article 226 or in Articles 132 and 136 
Thus the change may be either in terms ie explicit or in effect in these Articles to require ratification
The ground for rejection of the argument therein was 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 Singh wherein Sankari Prasad was followed stating clearly that there was 793 no justification for reconsidering Sankari Prasad
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 Sajjan Singh 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 Sankari Prasad and Sajjan Singh have no application
This is clear from the above quoted passage in Sankari Prasad which clearly brings out this distinction between a change in the right and a change in the remedy
The present case in unequivocal terms is that of destroying the remedy by enacting para 7 in the Tenth Schedule making a total exclusion of judicial review including that by the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution
But 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 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
Point D  Effect of absence of ratification 794 The material part of Article 368 is as under  368
Power of Parliament to amend the Constitution and Procedure therefore
1 Notwithstanding anything in this Constitution Parliament may in exercise of its constituent Power amend by way of addition variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article
2 An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of parliament and when the Bill is passed in each House by a majority of 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 who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill  Provided that if such amendment seeks to make any change in a Article 54 Article 55 Article 73 Article 162 or Article 241 or 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 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 President 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 by the introduction of a Bill for the purpose and when the Bill is passed 795 by each House by a majority of the total membership of that House and by a majority of not less than tow 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 Bill
In short the Bill not being passed by the required majority is presented to the President for his assent to the Bill and on giving of the assent the Constitution stands amended accordingly
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 President for assent
In other words the 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 terms of the Bill
Thus the Bills governed by the proviso cannot be presented to the President 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 substantive part of Article 368 results only when the Bill has been presented to the President for his assent in conformity with the special procedure after performance of the conditions precedent namely passing of the Bill by each House by the requisite majority in the case of all Bills and in the case of Bills governed by the proviso after the Bill has been passed by the requisite majority in each House and it has also been ratified by the legislature of not less than one half of the States
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 procedure 796 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 compliance 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 Bhartim1973 Supp
SCR 1 at pp
561 563  565  
Under Article 368 However a different and special procedure 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 23rds 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
The procedure is special in the sense that it is different and more exacting or restrictive than the one by which ordinary laws are made by Parliament
Secondly in certain matters the State Legislatures are involved in the process of making the amendment
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 the 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 797 constitution or in other words it writes itself into the constitution XXX XXX XXX 
But when it comes to the amendment of the Constitution a special procedure has been prescribed in Article 368 Since the result of following the special procedure under the Article is the amendment of the constitution the process which brings about the result is known as the exercise of constituent power by the bodies associated in the task of the amending the constitution
It is therefore obvious that when the Parliament and the State 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 entirely procedural
Undoubtedly part of it is procedural
But there is a clear mandate that on the procedure being followed the proposed amendment shall become part of the constitution which is the substantive part of Article 368
Therefore the peculiar or special power to amend the constitution is to be sought in Article 368 only and not elsewhere XXX XXX XXX 
The true position is that the alchemy of the special procedure prescribed in Article 368 produces the constituent power which transport the proposed amendment into the constitution and gives it equal status with the other parts of the constitution emphasis supplied Apart from the unequivocal language of clause 2 including the proviso therein indicating the above result of prior ratification being a part of the special procedure or condition precedent for valid assent of the President the same result is reached even by another route
The ordinary 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 accordance 798 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 in 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 Bill falling within the ambit of the proviso is carved out of the main enactment in clause 2 as an exception on account of which it cannot result in amendment of the Constitution on the President s assent without prior ratification by the specified number of State Legislatures
The proviso in clause 2 is enacted for and performs the function of a true proviso by qualifying the generality of the main enactment in clause 2 in providing an exception and taking out of the main enactment in clause 2 such Bills which but for the proviso would fall within the main part
Not only the language of the main enactment in clause 2 and the proviso thereunder is unequivocal to give this clear indication but the true role of a proviso the form in which the requirement of prior ratification if such a Bill by the State Legislatures is enacted in Article 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 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 Legislatures
This is the situation in the present case
Thus the requirement of prior ratification by the State Legislatures is not only a condition precedent forming part of the special mandatory procedure for exercise of the constituent power and a constitutional limitation 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
In other words clause 2 with the proviso therein itself lays down that President s assent does not result in automatic amendment of the Constitution in case of such a Bill it was not duly ratified before presentation to the President for his assent
Nothing more is needed to show that not only para 7 of the Tenth Schedule but the entire Constitution Fifty 799 Second Amendment Act 1985 is still born or an abortive attempt to amend the Constitution for want of prior ratification by the State Legislatures 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 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 the 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 therein of Article 368
Para 7 of the Tenth 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 of the Tenth Schedule and consequently the Constitution Fifty Second Amendment Act 1985 itself
Point E  Severability of para 7 of Tenth Schedule The effect of absence of ratification indicated above suggests inapplicability of the Doctrine of Severability
In our opinion it is not para 7 alone but the entire Tenth Schedule may the Constitution Fifty Second Amendment Act 1985 itself which is rendered unconstitutional being an abortive attempt to so amend the Constitution
It is the entire Bill and not merely rely para 7 of the Tenth Schedule therein which required prior ratification 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 800 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 validate para 7 in the absence of prior ratification the same assent cannot be accepted to bring about a difference result with regard to the remaining part of the Bill
On this view the question of applying the Doctrine of Severability to strike down para 7 alone retaining the remaining part of Tenth Schedule does not arise since it presupposes that the Constitution stood so amended on the President s assent
The Doctrine does not apply to a still born legislation
The Doctrine of Severability applies in a case where an otherwise validly enacted legislation contains a provision suffering from a defect of lack of legislative competence and the invalid provision is severable leaving the remaining valid provisions a valid provisions a viable whole
This doctrine has no application where the legislation is not validly enacted due to non compliance of the mandatory legislative procedure such as the mandatory special procedure 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 ratification 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 to 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 Commissioner V Pedrick Ranasinghe  as an authority to 801 support applicability of the Doctrine of Severability in the Present case
In Kesavananda Bharati the substance of that decision was indicated by Mathew J at p 778 of SCR thus  that though Ceylon Parliament has plenary power of ordinary legislation in the exercise of its constitution power it was subject to the special procedure laid down in s 29 4  While section 294 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
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 by exercise of constituent power in accordance with section 294 of the Ceylon Constitution Order
Supreme Court of Ceylon quashed the conviction 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
Ranasinghe was not a case of a Bill passed in exercise of the constituent power without following the special procedure of section 294 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 294 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 294 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 LC said  A Bill within the scope of sub section 6 of section 7A which received the Royal Assent without having been approved by 802 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 Amendment Act 1958 in Ranasinghe was enacted in exercise of the ordinary legislative power and therein was inserted section 41 which could be made only in exercise of the constituent power according to the special procedure prescribed in section 294 of the Ceylon Constitutions Order
In this situation only section 41 of the Amending Act was held to be invalid and severed because the special procedure for the constituent power was required only for that provision and not the rest
In the instant case the entire Tenth Schedule is enacted in exercise of the Constituent power under Article 368 not merely para 7 therein and this has been done without following the mandatory special procedure prescribed
It is therefore not a case of severing the invalid constituent part from the remaining ordinary legislation
Ranasinghe could have application 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
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 adopted instead of resorting to the mode of ordinary legislation in accordance 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 applicable for applying the Doctrine of Severability to ordinary legislation as summarised in RMD Chamarbaughwalla vs The Union of India   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 intent was to make the enactment only with para 7 therein and not without it
This intention is manifest throughout and 803 evident from the fact that but for para 7 the enactment did not require the 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 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
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 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
SCR 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 accordance with the proviso to clause 2 of Article 368 results in invalidation of para 7 alone
Democracy is a part of the basic structure of our Constitution and rule of law and free and fair elections are basic features of democracy
One of the Postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority
It is only by a fair adjudication 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 disqualification of members under Articles 103 and 192 is by the PresidentGovernor in accordance with the opinion of the Election Commission
The constitutional scheme therefore for decision on questions as to disqualification of members after being duly elected contemplates adjudication of such disputes by an independent authority out 804 side the House namely PresidentGovernor in accordance with the opinion of the Election Commission all of whom are high constitutional functionaries with security of tenure independent of the will of the House
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 including 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 have been prescribed by an ordinary law made by the Parliament under Articles 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 constitutional scheme were meant to be decided by an independent authority outside the House such as the PresidentGovernor in accordance with the opinion of another similar independent constitutional functionary the Election Commission of India who enjoys the security of tenure of tenure of a Supreme Court judge with the same terms and conditions of office
Thus for the 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 may 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 farmers of the Constitution did not choose to vest the authority of adjudicating disputes as to disqualification of members to the Speaker and provision was made in Articles 103 and 192 for decision of such disputes by the PresidentGovernor 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 on the will of the majority therein likelihood of suspicion of bias could not be ruled out
The question as to disqualification of a member has adjudicatory disposition and therefore requires the decision 805 to be rendered in consonance with the scheme for adjudication of disputes
Rule of law has in it firmly entrenched natural justice of which rule against Bias is a necessary concomitant and basic postulates of Rule against Bias are Nemo judex in causa sua A Judge is disqualified from 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 appears to be the underlying principle adopted by the framers of the Constitution in not designating the Speaker as the authority to decide election disputes and questions as to disqualification of members under Articles 103 192 and 329 and opting for an independent authority outside the House
The framers of the Constitution had in this manner kept the office of the Speaker away from this controversy
There is nothing 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 1244
On the same principle the authority to decide the question of disqualification of a member of legislature is outside the House as envisaged by Articles 103 and 192
In the Tenth Schedule the Speaker is made not only the sole but the final arbiter of such dispute with no provision for any appeal or revision against the Speaker s decision to any independent outside authority
This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution since 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
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 Assemblies is the Speaker of the House and entrustment of this adjudicatory function fouls with the constitutional scheme and therefore violates a basic feature of the Constitution
Remaining 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 becomes 806 unworkable for the Lok Sabha and the State Legislatures
The Statutory 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 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 unconstitutional 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 unconstitutionally
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 of Article 368 that the Doctrine of Severability does not apply in the present case of a constitutional amendment which suffers from the defect of absence of ratification as required by the proviso to clause 2 of Article 368 that the remaining part of the Tenth Schedule minus para 7 is also unconstitutional for violation of a basic feature of the Constitution and that the entire Tenth 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 the constitutional validity of the entire Tenth Schedule urged at the hearing on the basis of alleged violation of certain other basic features of the Constitution including the right of members based on Article 105 of the Constitution
These are our detailed reasons for the operative conclusions pronounced by us earlier on November 12 1991


Summary:
CANo869 of 1987 On 1531951 the appellant was appointed as a Pharmacist which was then designated as compounder
On 1321976 he was retired compulsorily by the Government under the first proviso to Sub rule of Rule 71 of the Orissa Service Code
The appellant challenged the order by way of a writ petition in the High Court contending that the order was the result of ill will and malice the Chief District Medical Officer bore towards him that his entire service was spot less and that at no time were any adverse entries in his confidential character rolls communicated to him
The respondent Government submitted that the decision to retire 837 the petitioner compulsorily was taken by the Review Committee and not by the Chief Medical Officer that besides the remarks made in the confidential character rolls other material was also taken into consideration by the Review Committee that it arrived at its decision bonafide and in public interest which decision was accepted and approved by the Government
The allegation of malafides was denied
The High Court looked into the proceedings of the Review Committee and the confidential character rolls of the appellant and dismissed the writ petition on the reasoning that an order of compulsory retirement after putting in the prescribed qualifying period of service did not amount to punishment that the order was passed by the state Government and not by the Chief Medical Officer and that the petitioner has failed to establish that remarks in the confidential character rolls were not duly and properly recorded
It held that the adverse remarks though not communicated can yet be relied upon
Accordingly it held that the decision to retire was taken by the Review Committee on proper material and there were no grounds to interfere with its decision
The present appeal by special leave was filed by the government servant against the decision of the High Court on the question whether acting upon undisclosed material was a ground for quashing the order of compulsory retirement CA No 870 of 1987 was also filed on similar facts
It was contended by the appellant that since an order of compulsory retirement had adverse effects upon the career and prospects of the government servant the order should be passed in accordance with principles of natural justice that before passing the order a notice to show cause against the order proposed should be given to the government servant that the order of compulsory retirement was based upon uncommunicated adverse remarks and that the appellant was also not afforded an opportunity to make a representation against the same and that as per the new concept of Article 14 adumbrated Maneka Gandhi case AIR 1978 SC 579 any and every arbitrary action was open to judicial scrutiny
Dismissing the appeals this Court HELD 101
What is normally required to be communicated is adverse remarks not every remark comment or observation made in the confidential rolls
There may be any number of remarks observations and 838 comments which do not constitute adverse remarks but are yet relevant for the purpose of FR 56j or a Rule corresponding to it
855B C 102
The adverse remarks ought to be communicated in the normal course as required by the Rules orders in that behalf
Any representations made against them would and should also be dealt with in the normal course with reasonable promptitude
854D E 103
The action under FR56j or the Rule corresponding to it need not await the disposal or final disposal of such representation or representations as the case may be
In some cases it may happen that some adverse remarks of the recent years are not communicated or if communicated the representation received in that behalf are pending consideration
On this account alone the action under FR56j need not be held back
854E F 104
There is no reason to presume that the Review Committee or the government if it chooses to take into consideration such uncommunicated remarks would not be conscious or cognizant of the fact that they are not communicated to the government servant and that he was not given an opportunity to explain or rebut the same
Similarly if any representation made by the government servant is there it shall also be taken into consideration
854F G 105
Not only the Review Committee is generally composed of high and responsible officers the power is vested in government alone and not in a minor official
It is unlikely that adverse remarks over a number of years remain uncommunicated and yet they are made the primary basis of action
Such an unlikely situation if indeed present may be indicative of malice in law
854G H 201
An order of compulsory retirement is not a punishment
It implies no stigma nor any suggestion of misbehaviour
855D 202
The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily
The order is passed on the subjective satisfaction of the government
855D E 203
Principles of natural justice have no place in the context of an order of compulsory retirement
This does not mean that judicial scrutiny 839 is excluded altogether
While the High Court or this Court would not examine the matter as an appellate court they may interfere if they are satisfied that the order is passed a mala fide or b that it is based on no evidence or c that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material in short if it is found to be a perverse order
855E F 204
The remedy provided by Article 226 of the Constitution is no less an important safeguard
Even with its well known constraints the remedy is an effective check against mala fide perverse or arbitrary action
855A 205
An order of compulsory retirement is not liable to be quashed by a court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration
That circumstance by itself cannot be a basis for interference
856B 206
The government or the Review Committee as the case may be shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to the record of and performance during the later years
The record to be so considered would naturally include the entries in the confidential recordscharacter rolls both favourable and adverse
If a government servant is promoted to a higher post notwithstanding the adverse remarks such remarks lose their sting more so if the promotion is based upon merit selection and not upon seniority
855G 856A 207
The nature of the function is not quasi judicial in nature and because the action has to be taken on the subjective satisfaction of the Government there is no room for importing any facet of natural justice particularly because an order of compulsory retirement is not a punishment nor does it involve any stigma
856E Union Of India vs MEReddy   Union of India vs JNSinha 1971 1 SCR 791 Applied
Shyam Lal vs State of Uttar Pradesh   Shivacharana vs State of Mysore AIR 1965 SC 280 State of Orissa vs Dr Binapani Devi   AK kraipak vs Union of India AIR 1970 SC 150 RL Butail vs Union of India  Dr NV Puttabhatta vs State of Mysore   Gian Singh Mann vs Punjab and Haryana 840 High Court   ONGC vs Iskandar Ali Brij Bihari Lal Agarwal vs High Court Of Madhya Pradesh  Baldev Raj Chaddha vs Union Of India   JD Srivastava vs State of Madhya Pradesh   Brij Mohan Singh Chopra vs State of Punjab  Gurdyal Singh Fiji vs State of Punjab m Amarkant Chaudhary vs State of Bihar   Baidyanath Mahapatra vs State of Orissa   Barium Chemicals vs Company Law Board   Vallukunnel vs Reserve Bank of India   Maneka Gandhi s case AIR 1978 SC 579 Referred to