Civil Appeal No 916 of 1992
From the Judgment and Order dated 1861991 of the Bombay High Court in WPN 1914 of 1991
Harish N Salve Rajiv K Garg and ND Garg for the Appellant
KTS Tulsi Addl
Solicitor General A Subba Rao P Parmeswaran and ADN Rao for the Respondents
The Judgment of the Court was delivered by 999 KASLIWAL J
Special leave granted
This appeal has been filed against the judgment of the Bombay High Court dated 1861991
The short controversy raised in the present case is whether the cloves imported by the appellant fall within Item 169 in List 8 of appendix 6 or fall within Paragraph 167 of Chapter XIII of the Import and Export Policy April 1990 March 1993
Brief facts of the case are that the appellant obtained by transfer an Import Lincence No 3412179 dated 29th November 1990 for Rs 1610700 for the import of admissible Items as per Para 220 2 3 4  6 of the Import Policy 1990 93 Vol
After acquisition of the aforesaid additional licence the appellant placed an order for the supply of about 200 bags of Madagascar cloves No 1 quality to a firm of Singapore
The appellant opened a letter of credit dated 651991 in favour of the foreign supplier
On receipt of the letter of credit the foreign supplier shipped the above mentioned goods in favour of the appellant
On arrival of the goods at Bombay Port e appellant filed Bill of Entry for the clearance of the goods for home consumption on 30th May 1991
The appellant claimed clearance of the goods against the additional licence on the ground that the cloves were covered under Item 169 of Appendix 6 List 8 Part I of the Import and Export Policy being DrugsDrug intermediate not elsewhere specified
 The Department relied on Para 167 which dealt with the import of spices and took the stand that the cloves could be imported only against specific licence relating to cloves
The appellant in the above circumstances filed a Writ Petition in the High Court of Bombay seeking a mandamus against the respondent to clear the goods against the Bill of Entry filed by the appellant
The High Court held that th cloves cannot fall within the expression DrugsDrug intermediate not elsewhere specified and the import of the cloves without specific licence was not permissible
It was thus held that the action of the Customs Authorities in not permitting clearance cannot be faulted and the licence relied upon by the appellant was not valid for the import of cloves
It was contended by Mr Harish Salve Learned Counsel for the appellant that though the use of clove as a spice is not in much dispute but at the same time it cannot be disputed that clove is a DrugDrug intermediate
It was submitted that in popular sense and trade parlance clove is also used as drug intermediate and that being so the appellant was 1000 entitled to import the cloves against the additional licence under para 220 of the Policy
It was also submitted that in the Import Policies of 1982 83 to 1985 86 cloves were specified as crude drugs
It was thus submitted that when clove was considered as crude drugs there was no justification now to hold that it did not fall within Item 169 which provided for DrugDrug intermediates
It was further argued that cloves are used for treatment of dyspepsia and flatulence
It is also used to relieve nausea and vomiting
Clove oil is famous for medicinal use and specially for tooth problems
It was also argued that in the Indian Materia Medica by AK Nadkarni the use of the cloves has been stated as follows  Uses Clovesunopened flower buds are generally used as spice in curry foods and condiments
Medicinally they are used to correct griping caused by purgatives relieve flatulence various forms of gastric irritability colic dyspepsia and to increase the flow of saliva
Combined with other spices and rock salt clove is given to relieve colic indigestion and vomiting and to many other uses
 It was submitted that in the Indian Pharmaceutical Codex issued by the Counsel of Scientific  Industrial Research New Delhi the Action and Uses of cloves have been stated as under  Action and Uses Clove is one of the most stimulant of aromatics
It is carminative and is used in treatment of flatulence and dyspepsia
It is sometimes administered in the form of powder or an infusion to relieve nausea and vomiting correct flatulence and excite languid digestion
 It was thus argued that the High Court committed an error in holding that clove was not a DrugDrug intermediate
On the other hand it was submitted by Mr Tulsi Learned Additional Solicitor General that Para 167 of the Policy clearly provided that import of cloves could be allowed only against licences and there was no question of applying Item 169 of List 8 Appendix 6 which provided for DrugsDrug intermediate not elsewhere specified
It was also submitted that in the common parlance as well as in trade and commerce the cloves are always considered as spice and not as a drug or drug intermediate
It was submitted that the cloves are sold as spice in a Kirana  shop and not as drug in a chemist shop
1001 In order to appreciate the controversy raised before us it would be necessary to reproduce Para 167 contained in Chapter XIII and Item 169 appearing in Part I of List 8 Appendix 6 of the Import  Export Policy 1991 93 Vol
I Import of Spices 167
1 Import of 1 Cloves 2 CinnamonCassia 3 Nutmeg and 4 Mace will be allowed against licences
Such licences may be granted to those who imported these items during any of the financial years from 1983 84 to the preceding licensing year
Import licences will be issued on the basis of the best year s imports of an item from 1983 84 to the proceding licensing year
The percentage entitlement as well as minimum value of licence will be as notified by the Chief Controller of Imports  Exports
From the licensing year 1991 92 applicants will be required to furnish evidence of exports of Indian spices during the preceding licensing year for a value equal to the value of the import licence granted during the preceding licensing year
Only exports of 1 Cardamom small 2 all Spicesspice products in approved consumer packs of 450 gms
or less except spice oils and oleoresins and saffron 3 Herbal spices such as rosemary thyme terragon sage etc
4 Vanila 5 Black cumin 6 Star anise 7 Kokum 8 Garlic 9 Cardamom large 10 Bishopsweed 11 Caraway and 12 Cumin seed will be taken into account for the above purpose
Items may be added or deleted by the Chief Controller of Imports  Exports as and when considered necessary in public interest
2 Exports referred to in sub paragraph 1 above should be direct exports by the applicant in his own name with the export proceeds ie the foreign exchange realisation in his own name or exports through the Consortium of Spices Exporters membership of which is to be confined only to dealers of spices who want to avail of the facility for exports through the Consortium
Documents required to be furnished alongwith the application for grant of licences for spices shall be as provided in sub paragraph 1666 above
3 Actual users who have no past imports will also be eligible 1002 for licence on the recommendation of the sponsoring authority and approval by the Headquarters Supplementary Licensing Committee
4 Applications for import of spices are to be made to the licensing authority concerned
 Item 169 in Part I of List 8 Appendix 6  DrugsDrug intermediates not elsewhere specified
 In the present case we are concerned with the Import Policy of 1990 93 and not any earlier Policy
The appellant had obtained the licence on 29th November 1990 and has imported the cloves in May 1991 and as such the import of cloves in question shall be governed by the provisions contained in the Import Policy of April 1990 93 and not by any meaning given to cloves in any earlier Policy
It cannot be disputed that the Government has power to modify or change its Import and Export Policy
Para 167 under Chapter XIII of the present Policy clearly provides the heading Import of Spices and under this heading of spices it further makes a mention that import of cloves CinnamonCassia Nutmeg and Mace will be allowed against licences
Thus it is clear beyond any doubt that cloves have been included under the heading spices and the import of cloves is only permissible against specific licences obtained in the manner provided in Para 167
In face of the above provision dealing with the import of spices which specifically includes cloves the general provision of Item 169 mentioning DrugsDrug intermediates cannot be applied
When Para 167 provides for obtaining specific licence for cloves there is no necessity of finding its meaning from Policies or its use as medicine
As regards import of spices there is a clear provision under Para 167 and it would govern the import of cloves
That part we are in agreement with the view taken by the High Court that in the common parlance as well as in trade and commerce clove is treated as spice and not drug
It is a matter of common knowledge that the cloves are sold in a Kirana  shop and not in the shop of a chemist or druggist
Thus we find no error in the view taken by the High Court and this appeal having no force is dismissed with no order as to costs
NPV Appeal dismissed


Summary:
By the Constitution Fifty Second Amendment Act 1985 popularly known as the Anti defection law the Tenth Schedule was inserted in the constitution of India providing for disqualification of a Member of either House of Parliament or of a State Legislature found to have defected from continuing as a Member of the House
Paragraph 2 of the Tenth Schedule states that a Member of a House would incur disqualification if he voluntarily gives up his membership of the party by which he was set up as a candidate at the election or if he without obtaining prior permission of the political party to which he belongs votes or abstains from voting in the House contrary to any direction issued by such political party and such voting or abstention has not been condoned by such political party within 15 days from the date of such voting or abstention or if a Member elected otherwise than as a candidate set up by any political party joins a political party after the 688 election or if a nominated Member joins any political party after expiry of six months from the date he took his seat
Paragraph 61 states that the question of disqualification shall be referred for decision of the chairmenSpeaker of the House and his decision shall be final
It further provides that such question in respect of ChairmanSpeaker shall be referred for decision of such Member of the House as the House may elect in this behalf
according to Paragraph 62 all proceedings under para 61 shall be deemed to be proceedings in ParliamentLegislature of a House within the meaning of Article 122212
Paragraph 7 states that no court shall have jurisdiction in respect of any matter connected with the disqualification of a Member of a House
A large number of petitions were filed before various High Courts as well as this Court challenging the constitutionality of the Amendment
This Court transferred to itself the petitions pending before the High Courts and heard all the matters together
The challenge was mainly on the grounds that Paragraph 7 of the Tenth Schedule in terms and ineffect sought to make a change in chapter IV of Part V and Chapter V of Part VI of the Constitution as it takes away the jurisdiction of the Supreme court under Article 136 and that of the High Courts under Articles 226 and 227 of the constitution andthereforethe Bill before presentation to the President for assent would require to be ratified by the legislatures of not less than one half of the States by resolution to that effect as envisaged by the proviso to Article 3682 that in the absence of such a ratification the whole Amendment Bill was an abortive attempt to bring about the amendment indicated therein that even assuming that the amendment does not attract the proviso to Article 3682 Paragraph 7 of the Schedule is liable to be struck down as it takes away the power of judicial review that the very concept of disqualification for defection is violative of the fundamental values and principles under lying parliamentary democracy and violates an elective representative s freedom of speech right to dissent and freedom of conscience and is destructive of a basic feature of the Constitution that the investiture of power to adjudicate disputed defections in the ChairmenSpeakers who being nominees of political parties are not obliged to resign their party affiliations does not stand the test of an independent and impartial adjudicatory machinery and is therefore violative of the basic feature of 689 the constitution
It was also contended that the expression any direction in Paragraph 21b of the Schedule might be unduly restrictive of the freedom of speech and the right of dissent which may itself be obnoxious to and violative of constitutional ideals and values
The respondents contended that the Tenth Schedule created a nonjusticiable constitutional area dealing with certain complex political issues which have no strict adjudicatory disposition and the exclusion of this area is constitutionally preserved by imparting a finality to the decision of the SpeakersChairmen by deeming whole proceedings as those within ParliamentHouse of legislature envisaged in Articles 122 and 212 and further excluding the Court s Jurisdiction under Paragraph 7 that no question of ouster of judicial review would at all arise inasmuch as the Speakerchairman exercising power under Paragraph 61 of the Tenth Schedule function not as a statutory tribunal but as a part of state s Legislative department and that having regard to the political issues the subject matter is itself not amenable to judicial power but pertains to the constitution of the House and the legislature is entitled to deal with it exclusively
The Court on 12111991 gave its operative conclusions indicating reasons to follow and by its judgment dated 1821992 gave the reasons
On the questions whether 1 the Tenth Schedule to the constitution inserted by the constitution Fifty Second Amendment Act 1985 seeking to penalise and disqualify elected representatives is violative of the fundamental principles of Parliamentary democracy and is therefor destructive of the basic feature of the Constitution 2 Paragraph 7 of the Tenth Schedule in terms and in effect brings about a change in operation and effect of Articles 136226 and 227 of the Constitution and therefore the Bill introducing the amendment would require ratification as envisaged by the proviso to Article 3682 3 the non compliance with the proviso to Article 3682 would render the entire Bill vitiated and an abortive attempt to bring about a valid amendment or would Paragraph 7 alone be invalidated with the application of the doctrine of severability 4 the Tenth Schedule created a new and non justiciable constitutional area not amenable to curial adjudicative process and whether Paragraph 61 in imparting a constitutional finality to the decisions of ChairmenSpeakers and paragraph 62 in the event of attracting immunity under Articles 122 690 and 212 bar judicial review 5 the ChairmenSpeakers satisfy the requirements of an independent adjudicatory machinery or whether the investiture of the determinative and adjudicative jurisdiction in them under the Tenth Schedule would vitiate the provision on the ground of reasonable likelihood of bias
Dismissing Writ Petition No17 of 1991 and remitting Writ Petition Rule No2421 of 1990 subject matter of TP No 4091 to the High Court of Guwahati this Court HELD By the Court i Paragraph 7 of the Tenth Schedule to the Constitution in terms and in effect excludes the jurisdiction of all Courts including the Supreme Court and High courts and brings 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 ratification in accordance with the proviso to Articles 3682 of the constitution of India
pp 711F G714G ii The finality clause in Para 61 of the Tenth Schedule to the Constitution is not decisive
Such finalitybeing for the statute alone does not exclude extraordinary jurisdiction of the Supreme Court under Article 136 and of the High Courts under Articles 226 and 227 of the Constitution
713E F 788B C iii The legal fiction in para 62 of the Tenth Schedule brings a proceeding under para 61 within the ambit of clause 1 of Article 122212 of the Constitution and therefore makes it justiciable on the ground of illegality or perversity inspite of the immunity it enjoys to a challenge on the ground of irregularity of procedure 713G 788E F Per Majority MN Venkatachaliah
K Jayachandra Reddy i Paragraph 7 of the Tenth Schedule contains a provision which is independent of and stands apart from the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defection 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
p712E F 691 ii There is nothing in the proviso to Article 3682 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 a bill which can stand by themselves without such ratification
711G H 712 A B iii The Constitution Fifty Second Amendment Act 1985 in so far as it seeks to introduce the Tenth Schedule in the Constitution of India to the extent of its provision which are amenable to the legal sovereign of the amending process of the Union Parliament cannot be over borne by the proviso to Article 3682 which cannot operate in that area
712B C iv 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 nor does it violate any rights or freedom under Article 105 and 194 of the Constitution
712F H The provisions are salutory and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections
712H 713A v The Tenth Schedule does not in providing for an additional ground for disqualification and for adjudication of disputed disqualifications seek to create a non justiciable constitutional area
p 769A B vi The SpeakersChairmen while functioning under the Tenth Schedule exercise judicial power and act as Tribunal adjudicating rights and obligations under the Tenth schedule and their decisions in that capacity are amenable to judicial review
713C vii Paragraph 61 of the Tenth Schedule to the extent it seeks to impart finality to the decision of the SpeakersChairman is valid
But the concept of statutory finality embodied therein 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 692 male fides non compliance with Rules of Natural Justice and perversity are concerned
713E F viii The deeming provision in Paragraph 62 of the Tenth Schedule attracts an immunity analogous to that in Article 1221 and 2121 of the constitution to protect the validity of proceedings from mere irregularities of procedure and confines the scope of the fiction accordingly
713G H 714A Spl
No1 of 1964 Keshav Singh s case  referred to
ix Having regard to the constitutional scheme in the Tenth Schedulejudicial review should not cover any stage prior to the making of a decision by the SpeakersChairmen and 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
713D E x 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 Parliamentary democracy
Vestiture of power to adjudicate questions under the Tenth Schedule in them should not be considered exceptionable
714B C Per Lalit Mohan Sharma and JS Verma JJ contra i Without ratification as required by the mandatory special provision prescribed in the proviso to Article 3682 of the Constitution the stage of presenting the Constitution Fifty Second Amendment Bill for assent of the President did not reach and therefore the so called assent of the President was non est715B C ii In the absence of ratification it is not merely paragraph 7 but the entire Constitution Fifty Second Amendment Act 1985 which is rendered unconstitutional since the constitutional 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 amendment
715D E 693 iii 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
715F iv 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 the Article 3682
715G v The Speaker s decision disqualifying a Member of a House under paragraph 61 of the Tenth Schedule is not immune from judicial scrutiny
It is a nullity liable to be so declared and ignored
782G vi An independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House is envisaged as an attribute of the democratic system which is a basic feature of our Constitution
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 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
716B C vii 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
716C D viii Accordingly all decisions rendered by several Speakers under the Tenth Schedule must also be declared nullity and liable to be ignored
p716D Per Venkatachaliah  J11A constitutional document outlines only broad and general principles meant to endure and be capable of flexible application to changing circumstances a distinction which differentiates a statute from a Charter under which all statutes are made
726G H Cooley on Constitutional Limitation 8th Edn
I p129 referred to 12
In considering the validity of a constitutional amendment the changing and the changed circumstances that compelled the amendment 694 are important criteria
727B USSupreme Court in Maxwell vs Dow 44 Lawyer s Edition 597 at p 605 referred to
The Tenth Schedule is a part of the Constitution and attracts the same canons of construction as are applicable to the expounding of the fundamental law
One constitutional power is necessarily conditioned by the other as the Constitution is one coherent document
In expounding the process of the fundamental law the Constitution must be treated as a logical whole
726D E 14
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
730D F Theory of Torts American Law Review 71873 Justice Oliver Wendel Holmes Free Speech and the Living Constitution by HL Pohlman 1991 Edn p223 referred to
Amalgamated Society of Railway Servants vs Osborne  referred to
A political party functions on the strength of shared beliefs
Any freedom of its Members to vote as they please independently of the political party s declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which in the ultimate analysis is its source of sustenance nay indeed its very survival
Paragraph 21b 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 695 party
The provision however recognising 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 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 belongs734D E 735B C Griffith and Ryle on Parliament Functions Practice  Procedure 1989 Edn page 119 referred to
In a sense 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
The anti defection law seeks to recognise the practical need to place the proprieties of political and personal conduct whose awkward erosion and grotesque manifestations have been the bane of the times above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation
This legislative wisdom and perception should be deferred to
The choices in constitutional adjudications quite clearly indicate the need for such deference739D G Constitutional Reform Reshaping the British Political System by Rodney Brazier
1991 Ednpp48 53 referred to
17The Tenth Schedule does not impinge upon the rights or immunities under Article 1052 of the Constitution
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 Parliament732H 733C Jyoti Basu  Ors
Debi Ghosal  Ors   referred to
A provision which seeks to exclude the jurisdiction of Courts is strictly construed
742E HH
Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur  Ors
vs Union of India 1971 1 SSC 85 referred to
696 Mask  Cov
Secretary of State AIR 1940 PC 105 referred to
22 The rules of construction are attracted where two or more reasonably possible constructions are open on the language of the statute
742F 23
As regards Paragraph 7 to the Tenth Schedule both on its language and having regard to the legislative evolution of the provision the legislative intent is plain and manifest
The words no Courts 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 Constitution Fifty Second Amendment Bill for the first time envisaged the investitute of the power to decide disputes on the Speakers or the Chairmen whereas the two similar Constitution 32nd and 48th amendment Bills which had lapsed did not contain any clause ousting the jurisdiction of the Courts
The purpose of the enactment of Paragraph 7 as the debates in the House indicate was to bar the jurisdiction of the Courts under Articles 136 226 and 227 of the Constitution
742F G H 743B 24
The changes in Chapter IV of Part V and Chapter V of the Part VI of the constitution envisaged by the proviso to Article 3682 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
p 745C D 25
Though the Amendment does not bring in any change directly in the language of Articles 136226 and 227 of the constitution however in effect Paragraph 7 curtails the operation of those Articles respecting matter falling under the Tenth Schedule
There is a change in the effect in Articles 136 226 and 227 within the meaning of clause b of the proviso to Article 368 2
Paragraph 7 therefore attracts the proviso and ratification was necessary
745F Sri Sankari Prasad Singh Deo vs Union of India  State of Bihar  Sajjan Singh vs State of Rajasthan   referred to
697 31 The criterion for determining the constitutional validity of a law is the competence of the law making authority which would depend on the ambit of the Legislative power and the limitations imposed thereon as also on mode of exercise of the power
While examining the constitutional validity of laws the doctrine of severability is applied which envisages that if it is possible to construe a statute so that its validity can be sustained against a constitutional attack it should be so construed and that when part of a statute is valid and part is void the valid part must be separated from the invalid part
746C 747D Cooley s constitutional Limitations 8th Edn
Vol 1 p 359 360 referred to
RMD Chamarbaughwalla vs Union of India   Shri Kesavananda Bharti Sripadagalavaru vs State of Kerala 1973 Supp
1 SCR Minerva Mills Ltd  Ors
vs Union of India  Ors
  and Sambhamurthy  Ors
etcv
State of Andhra Pradesh  Anr   referred to
Though the amending power in a constitution is in the nature of a constituent power and differs in content from the Legislative power the limitations imposed on the constituent power may be substantive as well as procedural
Substantive limitations are those which restrict the field of exercise of the amending power and exclude some areas from its ambit
Procedural limitations are those which impose restrictions with regard to the mode of exercise of the amending power eg the limitation requiring a special majority under Article 3682 of the constitution is a procedural one
Both these limitations however touch and affect the constituent power itself and impose a fetter on the competence of Parliament to amend the Constitution and any amendment made in disregard of these limitations would go beyond the amending power and would invalidate its exercise
746C E 747C 33
Although there is no specific enumerated substantive limitation on the power in Article 368 but as arising from very limitation in the word amend  a substantive limitation is inherent on the amending power so that the amendment does not alter the basic structure or destroy the basic features of the Constitution
747A B 34
The proviso to Article 3682 was introduced with a view to giving 698 effect to the federal principle
Its scope is confined to the limits prescribed therein and is not construed so as to take away the power in the main part of Article 3682
750C D Madras  Southern Mahratta railway company vs Bazwada Municipality 1944 71 IA 113 and Commissioner of Income Tax Mysore vs Indo Mercantile Bank Ltd1959 Supp
2 SCR 256 referred to
An amendment which otherwise fulfils 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
750E 36
The words the amendment shall also require to be ratified by the legislature occurring in the proviso to Article 3682 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
750G H 37
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 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
755D Bribery Commissioner vs Pedrick Ranasinghe 1965AC172 referred to
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
753D E 39
The principle of severability can be equally applied to a composite amendment which contains amendment 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 699 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
753E F 310
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
753G 311
The main purpose underlying the Constitutional Fifty Second Amendment Act and introduction of the Tenth Schedule is to curb the evil of defection which was causing immense mischief in our body politic
The ouster of jurisdiction of Courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection
It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedule if it had known that Paragraph 7 was not valid Nor can it be said that the rest of the provisions of the Tenth schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional
The provisions of Paragraph 7 is therefore severable from the rest of the provisions
pp754A C 41
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 long as the essential characteristics that entitle a system of government to be called democratic are otherwise satisfied is not necessary to be gone into
Election conducted at regular prescribed 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
p733F G 42
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 dispute is clearly judicial and not legislative in nature
The power to decide disputed disqualification under Paragraph 61 is pre eminantly of a judicial complexion
pp759G763C Indira Nehru Gandhi vs Raj Narain  Special Reference 700 No 1 of 1964   Express Newspaper Ltd vs Union of India  referred to
Australian Boot Trade Employees Federation vs Whybrow  Co   referred to
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
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 an exercise of judicial power
That authority is called a Tribunal if it does not have all the trappings of a court
Thus the Speaker or the Chairman acting under Paragraph 61 of the Tenth Schedule is a Tribunal763G H 764E F 766B Associated Cement companies Ltd vs PN Sharma and Anr  and Harinagar Sugar Mills Ltd vs
Shyam Sunder Jhunjhunwala  Ors   referred to
A finality clause is not a legislative magical incantation which has the effect of telling off Judicial Review
Statutory finality of a decision presupposes and is subject to its consonance with the statute
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
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 consideration
pp 755D765D E Administrative Law  6th Edn
at p 720  Constitutional Fundamentals the Harmlyn Lectures 1989 Edn p88 referred to
The finality clause with the word final in paragraph 61 of the Tenth schedule does not completely exclude the jurisdiction of the 701 Courts under Articles 136 226 and 227 of the Constitution
But it does have the effect of limiting the scope of the jurisdiction
If the intendment is to exclude the jurisdiction of the superior Courts the language would quite obviously have been different
758H 759A765C758A Brundaban Nayak vs Election Commission of India  Anr   Union of India vs Jyoti Prakash Mitter   Durga
Shankar Mehra vs Reghuraj Singh  and Union of India  Anr
vs Tulsiram Patel  Ors 1985 Supp 2 SCR 131 referred to
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
765F Anisminic Ltd vs
Foreign commission   SE Asia Fire Bricks vs Non Metallic Products 1981 AC 363 referred to
The fiction in Paragraph 62 attracts an immunity from mere irregularities of procedures
The very deeming provision implies that the proceedings of disqualification are in fact
not before the House but only before the Speaker 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 power
There is therefore no immunity under Articles 122 and 212 from judicial scrutiny of the decision of the Speaker or Chairman exercising power under Paragraph 61 of the Tenth Schedule
763D F 7
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
But 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
Exceptions will however have to be made in respect of cases where disqualification of suspension is imposed during the pendency of the 702 proceedings and such disqualification or suspension is likely to have graveimmediate and irreversible repercussions and consequence768E H Makhan Singh vs State of Punjab 1964 4 SCR 797State of Rajasthan vs
Union of India   Union of India vs Jyoti Prakash Mitter supra and Union of India  Anr
vs Tulsiram Patel  Ors 1985 Supp 2 SCR 131 referred to
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
He 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
It would indeed be unfair to the high traditions of that great office to say that the investiture in it of this jurisdiction would be vitiated for violation of a basic feature 
of democracy
It is inappropriate to express distrust in the high office of the speaker merely because some of the speakers are alleged or even found to have discharged their functions not in keeping with the great traditions of that high office
The Robes of the Speaker do change and elevate the man inside
770G H 771A 772A 773A B GV Mavalankar  The Office of Speaker Journal of Parliamentary Information April 1956 Vol
No 1 p33 HOP Deb
IX 1954 CC 3447 48 and Erskine May Parliamentary Practice 20th edition p 234 and MN Kaul and SL Shakdher in Practice and Procedure of Parliament  4th Edition referred to
The words any direction occurring in Paragraph 21b of the Tenth Schedule require to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Schedule
Those objects and purposes define and limit 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
774H 775A B Parkash Singh Badal  Ors
vs Union of India  Ors AIR 1987 Punjab  Haryana 263 referred to
While construing Paragraph 21b it cannot be ignored that 703 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
The disqualification imposed by Paragraph 21b 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
p 775C D 93
In view of the consequences of the disqualification ie termination of the membership of a House it would be appropriate that the direction or whip which results in such disqualification under Paragraph 21b of the Tenth Schedule is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the disqualification under Paragraph 21b 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
775H 776A B 101 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
776G 102
The interlocutory orders in the instant case were necessarily justified so that no land slide changes were allowed to occur rendering the proceedings ineffective and infructuous776H 777A Per VERMA J  1Under the Constitution of India which delineates the spheres of jurisdiction of the legislature and the judiciarythe 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 704 obligation of every person and authority to accept its binding effect when the decision is rendered by this Court
p 784F H Cohens vs Virginia   404   291 1821 and State of madras vs VG row   referred to
The finality clause in Para 61 of the Tenth Schedule to the Constitution which says that the decision of the Chairman or as the case may be the speaker of the House shall be final is not decisive
Such a finality clause in a statute by itself is not sufficient to exclude the 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
Sub paragraph 1alone is therefore insufficient to exclude the extra ordinary jurisdiction of the High Courts and the plenary jurisdiction of this Court
788B C 22
The ambit of a legal fiction 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
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
788E 789A 23
The legal fiction in sub paragraph 2 of para 6 of the Tenth Schedule serves a limited purpose and brings the proceedings under sub paragraph 1 thereof within the ambit of clause 1 of Article 122 or Clause 1 of Article 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
788C 789B Commissioner of Income tax vs Ajax Products Ltd   referred to
A matter falling within the ambit of clause 1 of either of the two Article 122 or 212 is justiciable on the ground of illegality or perversity in spite of the immunity it enjoys to a challenge on the ground of irregularity of procedure
788E F 25
The decision relating to disqualification of a member does not relate to regulating procedure or the conduct of business of the House 705 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 Article 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
789C D Spl
No 1 of 1964 Keshav Singh s case   31
The words in Paragraph 7 of the Tenth Schedule with its non obstante clause notwithstanding anything in this Constitution  followed by expression no court shall have any jurisdiction  are very wide and ordinarily mean that this provision supersedes any other provision in the Constitution and leave no doubt that the bar of jurisdiction of Courts is complete excluding also the jurisdiction of the supreme court and the High courts under Articles 136 226 and 227 of the Constitution respectively
Further the expression in respect of any matter connected with the disqualification of a Member of a House 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 paragraph 6
This conclusion is reinforced by the finality clause and deeming provision in para 6 of the Tenth Schedule and by the legislative history of the absence of such a provision excluding the Court s jurisdiction in the earlier two Bills which had lapsed
pp 789F G 790C H 32
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
799E 41
Distinction has to be drawn between the abridgment or extinction of a right and restriction of the remedy for enforcement of the right
If there is an abridgment of 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
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 cause of 706 action cannot be enforced for want of that remedy then the change made is in the remedy and not in the subsisting rights
793A C Sri sankari Prasad Singh Deo vs Union of India  State of Bihar  and Sajjan Singh vs State of Rajasthan   explained 42
The instant case in unequivocal terms is that of destroying the remedy by enacting para 7 of the Tenth Schedule making a total exclusion of judicial review including that by the Supreme Court under Article 136 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 Article 226 and 227 would remain unimpaired to challenge the decision under para 6 as in the case of decisions relating to other disqualification specified in clause 1 of Articles 102 and 191 which remedy continues to subsist
793D F 43
The extinction of the remedy alone without curtailing the right since the question of disqualification of a member on the ground of defection under the Tenth Schedule does require adjudication on enacted principles results in making a change in Article 136 in Chapter IV in Part V and Articles 226 and 227 in Chapter V in Part VI of the Constitution
793F 44
The Constitution Fifty Second Amendment Bill therefore attracted the proviso to Article 3682 requiring ratification by the specified number of State legislatures before its presentation to the President for his assent
793G 51 The proviso to Article 3682 of the Constitution contains a constitutional limitation on the amending power and prescribes as a part of the special procedure prior assent of the State Legislatures before presentation of the Bill to the President for his assent in the case of the relevant Bills
This is a condition interposed by the proviso in between the passing of the Bill by the requisite majority in each House and presentation of the Bill to the President for the assent which assent results in the Constitution automatically standing amended in accordance with the terms of the Bill
The Bills governed by the proviso therefore cannot be presented to the President for his assent without the prior ratification by the specified number of State legislatures
795C E 707 52
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 by not less than one half of the States
Non compliance of the special procedure prescribed in Article 3682 cannot bring about the result of the Constitution standing amended in accordance with the terms of the Bill
795F G H796A Kesavananda Bharati vs State of Kerala 1973 Supp1 SCR relied on
The ordinary role of a proviso is to carve out an exception from the general rule in the main enacting part
A Bill falling within the ambit of the proviso to cl2 of Article 368 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 legislature
797G H 798A B 54
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 the entire Constitution Fifty Second Amendment Bill and not merely para 7 of the Tenth Schedule which required prior ratification by the State of legislatures before its presentation to the President for his assent it being a joint exercise by the parliament and the State Legislatures
The stage of presentation of the Bill to the President for his assent not having reached the President s assent was non est and it could not result in amendment of the Constitution in accordance with the terms of the Bill
It is not a case of severing the invalid constituent part from the remaining ordinary legislation
799G H 800A 802C 61
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 viable whole
this doctrine has no application where the legislation is not validly enacted due to non compliance 708 of the mandatory legislative procedure such as the mandatory special procedure prescribed for exercise of the constituent power
The doctrine does not apply to a still born legislation
It is not possible to infuse life in a still born by any miracle and deft surgery even though it may be possible to continue life by removing a congenitally defective part by surgical skill
800D E The Bribery Commissioner vs Pedrick Ranasinghe   referred to
Severance of para 7 of the Tenth Schedule could not be made for the purpose of ratification or the President s assent and therefore not 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 different result with regard to the remaining part of the Bill
800A B 7
The test whether the enactment would have been made without para 7 indicates that the legislative intent was to make the enactment only with para 7 therein and not without it otherwise the enactment did not require the discipline of Article 368and exercise of the constituent power and mode of ordinary legislation could have been resorted to in accordance with sub clause e of clause 1 of Article 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 disqualification
802F H 803A RMD Chamarbaughwalla vs The Union of India   relied on
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 elections and subsequent disqualifications of members that true reflection of the electoral mandate and governance by rule of law essential for democracy can be ensured
803E G 709 82
In the democratic pattern adopted by 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 contemplated by an independent authority outside 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
803G H 804A 83
Sub clause e of clause 1 in Articles 102 and 191 which provide 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
All disqualification including disqualification on the ground of defection in our constitutional scheme are therefore different species of the same genus namely disqualification and the constitutional scheme does not contemplate any difference in their basic traits and treatment and 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 a Supreme Court Judge with the same terms and conditions of office
804B E 84
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 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 Article 103 and 192 for decision of disputes by the PresidentGovernor in accordance with the opinion of the Election commission
In the Tenth Schedule the Speaker is made not only the sole but the final arbiter of such dispute with no provision for any appeal or revision against the Speaker s decision to any independent outside authority
This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution804 G 805E 85
The Speaker being an authority within the House and his tenure being dependent on the will of majority therein likelihood of suspicion of 710 bias could not be ruled out
The question as to disqualification of a member has adjudicatory disposition and therefore requires the decision to be rendered in consonance with the scheme for adjudication of disputes Rule of law has in it firmly entrenched natural justice of which Rule against Bias is a necessary concomitant and basic postulates of Rule against Bias are  Nemo judex in cause sua A Judge is disqualified from determining any case in which he may beor 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