Holding

Paragraph 7 of the Tenth Schedule is unconstitutional for lack of required ratification but is severable; the remaining provisions of the Tenth Schedule, including Paragraph 2, are valid and the Speaker’s/Chairman’s decisions are subject to judicial review for jurisdictional or procedural infirmities.

Summary

The Supreme Court heard a batch of petitions challenging the constitutionality of the Constitution (Fifty‑Second Amendment) Act, 1985, which inserted the Tenth Schedule (anti‑defection law). The key disputes were whether Paragraph 7 of the Schedule, which bars all courts from hearing any matter relating to a member’s disqualification, effected a change in Articles 136, 226 and 227 and therefore required ratification by at least half the State legislatures under the proviso to Article 368(2); whether Paragraph 7 could be severed from the rest of the Schedule; whether Paragraph 2 (the substantive disqualification provisions) violated democratic freedoms; and whether the Speaker/Chairman’s decisions under Paragraph 6 were amenable to judicial review. The majority held that Paragraph 7 indeed altered the operation of Articles 136, 226 and 227, attracting the ratification requirement, and therefore was unconstitutional for lack of such ratification. Paragraph 7 was held severable, so the remainder of the Tenth Schedule, including Paragraph 2, was upheld and the Speaker’s decisions were subject to limited judicial review for jurisdictional errors, mala‑fides, violation of natural‑justice rules or perversity. The Transfer Petition was allowed and the writ petition was remitted to the High Court for disposal on the remaining issues.

Issues considered

The constitutionality of Paragraph 7 of the Tenth Schedule and its effect on Articles 136, 226 and 227
Whether the amendment introducing Paragraph 7 required ratification by State legislatures under the proviso to Article 368(2)
The severability of Paragraph 7 from the rest of the Tenth Schedule
The validity of Paragraph 2 of the Tenth Schedule vis‑à‑vis freedom of speech, vote and conscience
The extent of judicial review over decisions of the Speaker/Chairman under Paragraph 6

Legislation cited

Constitution (Fifty‑second Amendment) Act, 1985s. Tenth Schedule
Constitution of Indias. Article 102, s. Article 105, s. Article 122, s. Article 136, s. Article 191, s. Article 194, s. Article 212, s. Article 226, s. Article 227, s. Article 368(2)

Subjects

anti‑defection lawTenth Scheduleparliamentary democracyjudicial reviewbasic structure doctrineArticle 368 ratificationseverabilitySpeaker jurisdictiondisqualification of legislators

Judgment

A KIHOTO HOLLOHAN
v.
ZACHILLHU AND OTHERS

NOVEMBER 12, 1991/FEB. 18, 1992

B [LAUT MOHAN SHARMA, M.N. VENKATACHALIAH, J.S.
VERMA, K. JAYACHANDRA REDDY AND S.C. AGRAWAL, JJ.]

Constitlllion of India, 1950:

c SecondArticles 102(2). !91(2), Temh Sched11/e inserted by Constit11tion (Fifty-
Amendment) Act, 1985-Anti-defection /aw-Object and Con-
stitllfionality of

Tenth Sched11k-Para 2-Membcrs of Parliament/State Legis/anlfes-
Disq11a/ificatio11 011 account of defection-Whether rio/ative of ri!}lls and
D ji-eedom cm·isaged by Article 105.

Para 2( l)(b)-Expression "anr directio11'"--<:onstmctio11 of-fVhether
whip/direction should clear~)' indicate that roting/abstention fronz voting con-
tra1)' to it 1t'011/d incur disqualification.

E Paragraph 6-Speake10/Chain11cn-Power to decide disp11ted dis-
qualification of a Member of a H01m-Xat11re of

Speakcrs!C"hainnan-f-Vhcrhcr act as Trihunal and satisfy requiren1c11ts
of independent adjudicato1y 111achinery.

F 'Finality' to orders of Speakers/C71ain11en; and inununity to proceedings
1111der para 6( I) analogous tu Articles 122( I) and 212( 1)-ltlzether excludes
judicial reriea:.

Doctrine of neccssit.1-Applicabiii~· of

G Paragraph 7-Erpression 'no court :shall hal'e any j1uisdiction in respect
11:ith the 111atter connected u:ith disqual({ication of a Afe111her of a House'-
H!f1ether bars jun·sdiction of Supro11c C'ourt and High ('ourts under Articles
136, 226 and 227: wltethcrrcquircd rutification cnrisaged by proriso to Article
368(2): whether can be serered from other prorisions of Schedule.

H Doctrine of sei·erabiii1'-Applicability of
686
KIHOTO HOLLOHAN v. ZACHILLHU 687

Articles 122( I), 212(1 )-Proceedings in Parliament/State Legisla- A .
ture-Wiletiler justiciable 011 ground of illegality or perversity.

Articles 136, 226, 227-<Jrders under Paragraph fr-Scope of Judicial
review-J'lhether confined to jurisdictional e"ors only.

Article 368-Constitutional ame11dme11t-Amending powen--Scope, B
object, nature and /imitations explained.

Extinction of rights and restriction of remedy for enforcement of
-'""' 1ight----Distinction between-Extinction of remedy without curtailing
riglu-M!/1ether makes a change in the right.
c
Adnzinistrative Laiv :

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

Practice & Procedure : D

Interlocutory orders-Purpose of.

H1ords and Phrases :

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

By the Constitution (Fifty-Second Amendment) Act, 1985 (popularly
known as the Anti-defection law) the Tenth Schedule was inserted in the
Constitution of India providing for disc1ualitication of a Member of either
House of Parliament or of a State Legislature found to have defected from F
continuing as a fvlember of the House.

Paragraph 2 of the Tenth Schedule states that a Member of a House
would incur disqualification if he voluntarily gives up his membership of
the part)· by which he was set up as a candidate at the election, or if he
without obtaining prior permission of the political party to which he G
belongs votes or abstains from voting in the House contrary to "any
direction" issued by such political party and such voting or abstention has
not been condoned by such political party within 15 days from the date of
such voting ·or abstention; or if a l\'lember elected otherwise than as a
candidate set up by any political party joins a political party after the H
688 SUPREME COURT REPORTS (19'J2) 1 S.C.R.

A election; or, if a nominated Member joins 11ny poUtical party after expiry
of six months from the date be took bis seat. Paragraph 6(1) states that
the question of disqualification shall be referred for decision of the Chair·
men/Speaker of the House and bis decision shall be final. It rurtber ·
provides that 1ucb question in respect or Chairman/Speaker shall be·
B referred for decision of such Member or the House as tlie House may eled
in this behalf. According to Parilgrapb 6(2) all proceedings under para
6(1) shall be deemed to be proceedings in Parliame11t/Leglslature ol a
. House within the meaning of Article 122/212. Parilgrapb 7 states that no
court shall have jurisdiction In respect or any matter connected with the >..;....
C disqualification of a Member of a House.

A large number of petitions were filed before various High Courts
as well as this Court challenging the constitutfonality or the Amendment.
This Court transferred to itself the petitions pending before the High
Courts and beard ail the matters together.
D
The challenge was mainly on the grounds that Paragraph 7 of the
Tenth Scbedule, in terms and in effect sought to make a. change in Chapter
IV of Part V and Chapter V of Part V1 of the Constitution as it takes away
the jurisdiction of the Supreme Court under Article 136 and that or the
E High Courts under Articles 226 and 227 of the Constitution, and, therefore,
the Bili before presentation to the President for assent would require to
be ratified by the legislatures of not less than one·balf of the States by
resolution to that eft'ect as envis11ged by the proviso to Article 368(2); that
in the absence of such a ratification the whole Amendment Bili was an
F abortive attempt to bring about the amendment indicated therein; that
even assuming that the amendment does not attract the proviso to Article
368(2), Paragraph 7 of the Schedule is liable to be struck down as it takes
away the power of judicial review; that the very concept of disqualification
for defection is violative of the fundamental values and principles under·
lying parliamentary democracy and violates an elective representative's
G freedom of speech, right to dissent and freedom of conscience and is
destructive of a basic feature of the Constitution; that the investiture of
power to adjudicate disputed defections in the Chairmen/Speakers, who
being nominees of political parties are not obliged to resign their party
affiliations, does not stand the test of an independent and impartial
H adjudicatory machinery and Is, therefore, violative of the basic feature of
KIHOTO HOLLOHAN v. ZACHILLHU 689

Ille Coutltutloll. It was also contended that the expression "any direction" A
la ............. l(l)(b) of die Schedule might be unduly restrictive of the
Ill 1d11M of 1peedl, and the right or dissent which may itself be obnoxious
to ud vlllliltlYe ill constltutlonal Ideals and values.

The respondent& contended that the Tenth Schedule created a non-
B
Justldallle coutltutlonal area dealing with certain complex political issues
nlclt liave no strk:t acUudlcatory disposition and the exclusion of this area
.Is constltutl111111lly preserved by Imparting a finality to the decision of the
;.( Speakds/Cbalnnen by deeming whole proceedings as .those within Pariia-
or
-.tJH1111HS lqlslature eavl1111ged in Articles 122 and 212 and further
. exchi111111· tlie CO.rt's Jurisdiction under Paragraph 7; that no question of c
1111ster ofJndldal review would at all arise inasmuch as the Speaker/Chair-
· - • exerdsl111 power under Paragraph 6(1) of the Tenth Schedule func-
tlon ilot as a statutory TrlbullBI but as a part of State's Legislative
. de,.._t; and that having regard to the pol!tlcal issues, the subject
-tter Is Itself not a-nable to judicial power but pertains to the Con- D
sU.hltlon of tlle House and the Legislature is entitled to deal with it
-,
· e11elnlllvely.

The Court on 12.11.1991 gave its operative conclusions, indicating
reas8'1s to ro11- and by Ill judgment dated 18.2.1992 gave the reasons.
E
Oa die questions whether: (1) the Tenth Schedule to the Constitution
lasel'led lly die Coostltutlon (Fifty-Second Amendment) Act, 1985, seeking
to peulise and disqualify elected representatives Is violative or the fun-
). - dameatal principles of Parliamentary democracy and is, therefor, destruc-
tlve of the basic feature of the Constitution; (2) Paragraph 7 of the Tenth F
·\
Schedule la terms and In elrect brings about a change in operation and
elfecl of Artlcles 136, 226 and 227 or the Constitution and, therefore, the
llU latrodnclng the amend!"ent would require ratification as envisaged by
tlle proviso to Article 368(2); (3) the non-compliance with the proviso to
Article 368(2) would render the entire Bill vitiated and an abortive attempt
to bring about a valid amendment or would Paragraph 7 alone be in- G
tlllldated with the application or the doctrine of severability; (4) the Tenth
Schedule created a new and non-justiciable constitutional area not
..., •-Ille to cnrlal adjudicative proeess; and whether Paragraph 6(1) in
l•partl111 a constitutional 'finality' to the decisions of Chairmen/Speakers,
ud paragrapll 6(2) In the event of attracting immunity under Articles 122 H
690 SUPREME COURT REPORTS [1992] 1 S.C.R.

A and 212, bar judicial review; (5) the Chairmen/Speakers satisfy the re-
quirements of an independent adjudicatory machinery or whether the
investiture of the determinative and adjudicative jurisdiction in them
under the Tenth Schedule would vitiate the provision on the ground of
reasonable likelihood of bias.

B Dismissing Writ Petition No. 17 of 1991 and remitting Writ Petition
Rule No. 2421 of 1990 (subject matter of TP No. 40/91) to the High Court
of Guwahati, this Court

'HELD: (By the Court) (i) Paragraph 7 of the Tenth Schedule to the
C 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 368(2) of the Constitution of India.
[pp. 711F-G; 714G] ·
D
(ii) The finality clause in para 6(1) of the Tenth Schedule to the f--
Constitution is not decisive. Such finality, being 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.
E ( 713E-F; 7888-C]
(iii) The legal fiction in para 6(2) of the Tenth Schedule brings a
proceeding under para 6(1) within the 11mbit of clause (1) of Article 122/212
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
F /.
the ground of "irregularity of procedure." [ 713G; 788E-~"]

Per Majority (M.N. Venkatac/1alial1. K. Jayachandra Redd)' & S.C.
Agrawal, JI.)

(i) Paragraph 7 of the Tenth Schedule contains a provision which is
G independent of, and stands apart from, the main provisions of the Tenth
Schedule which are intended to provide a remedy for the evil of unprin-
cipled and unethical political defection and, therefore, is a severable part.
The remaining provisions of the Tenth Schedule can and do stand inde-
pendently of Paragraph 7 and are complete in themselves workable and
H are not truncated by the excision of Paragraph 7. [p. 712E-F)
KIHOTO HOLLOHAN v. ZACHILLHU 691

(ii) There is nothing in the proviso to Article 368(2) which detracts A
from the severability of a provision on account of the inclusion of which
the Bill containing the amendment requires ratification from the rest of
the provisions of such Bill which do.not attract and require such ratifica-
tion. Having regard to the mandatory language of Article 368(2) that
"thereupon the Constitution shall stand amended" the operation of the
proviso should not be extended to constitutional amendments in a bill
B
which can stand by themselves without such ratification. [711G-H; 712A-B]

(iii) The Constitution (Fifty-Second Amendment) Act, 1985 in so far
_.I as it seeks to introduce the Tenth Schedule in the Constitution of India,
to the extent of its provision which are amenable to the legal-sovereign of C
the amending process of the Union Parliament cannot be over borne by
the proviso to Article 368(2) which cannot operate in that area. [712B-C]

(iv) Parapraph 2 of the Tenth Schedule to the Constitution is valid.
Its provisions do not suffer from the vice of subverting democratic rights
of elected Members of Parliament and the Legislatures of the States. It D
does not violate their freedom of speech, freedom of vote and conscience;
nor does it violate any rights or freedom under Article 105 and 194 of the
Constitution. [712F-H]

The provisions are salutory and are intended to strengthen the fabric E
of Indian Parliamentary democracy by curbing unprincipled and unethical
political defections. [712H, 713A]

(v) The Tenth Schedule does not, in providing for an additional
ground for disqualification and for adjudication of disputed di< qualifica-
tions, seek to create a non-justiciable constitutional· area. [p. 769A-B] F

(vi) The Speakers/Chairmen while functioning under the Tenth
Schedule exercise judicial power and act as Tribunal adjudicating rights
and obligations under the Tenth Schedule, and their decisions in that
capacity are amenable to judicial review. [713C]
G
(vii) Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to
impart finality to the decision of the Speakers/Chairman is valid. But the
concept of statutory finality embodied therein does not de.ract from or ·
abrogate judicial review under Articles 136, 226 and 227 of the Constitu-
tion in so far as infirmities based on violations of constitutional mandates, H
692 SUPREME COURT REPORTS [1992) 1 S.C.R. ·

A ma/a fides, non-compliance with Rules or Natural Justice and penwslty.
are concerned. [713E-F]

(viii) The deeming provision in Paragraph 6(2) of ll1e Tenth
Schedule attracts an immunity analogous lo that la Artlde lll(l) and
212(1) of the Constitution to protect the validity or proceedings from mere
B irregnlarities _of procedure and confines lhe scope or the fidlon -llhiW·
(7l3G·H, 114AJ

Sp/. ~ef No.I of 1964 (Kesliav Singh's case) (1965) I SCR 413,
referred lo.

C (ix) Having regard to the Conslitutlona.1 scheme In the Tenlll
Schedule, judicial review should not cover aay stage prior to the ........
of a decision by lhe Speakers/Chairmen; and ao quia 1bi1e/ actloas are
permissible; lhe only exception for any interlocutory lnlerf'erence being
cases or interlocutory disqualifications or •••pensions which may laaw
D grave, immediate and irreversible repercussloas and conseqaence.
(7130-E)

(x) The Speakers/Chlirmen hold a pivotal position la the scheme or ...- ·-
Parliamentary democracy and are guardians or the rights and privileges
of the House. They are expected lo and do take far reaching dedslons la
E the Parliamentary democracy. Vestiture or power to acUudicate qanlloas
under the Tenth Schedule i'! them should not be considered exceptionable.
(7148-CJ
Per La/it Mohan Sliaima and J.S. Venna, JJ. - co/llra

F (i) Without ratification, as required by the mandatory special --{
provision prescribed in the proviso to Artlde 368(2) or the Coblihllioa /-
the stage of presenting the Constitution (Fifty-Second) Amendment Bill
for assent of the !'.resident did not reach and, therefore, the s.o-called
assent of the President was non est. (71511-C)
G (ii) In the absence or ratification it is not merelyParagraph 7 but
the entire Constitution (Fifty-Second Amendment) Act, 1985 which Is
rendered unconstitutional, since lhe constitutional ponr was not exer•
cised as prescribed in Article 368, and, therefore, the Constitution did nol .
stand amended in accordance with the terms or the Biii provldlag for
H amendment. [715D·E]
KIHOTO HOLLOHAN v. ZACHILLHU 693

(Iii) Doctrine of severability cannot be applied to a Bill making a A
.oonstitutional amendment where any part thereof attracts the proviso lo
dause (2) of Article 368. [715FJ

(Iv) Doctrine of severabillty is not applicable lo permit striking down
para 7 alone saving the remaining provisions of the Bill making the
Constitutional Amendment on the ground that Para 7 alone attracts the B
proviso the Article 368(2). [715GJ

(v) The Speaker's decision disqualifying a Meniber of a House .under
paragraph 6(1) or the Tenth Schedule is not immune from judicial
scrutiny. It ls a. nullity liable
. .
to be so declared and ignored. [782GJ
c
(vi) ·Ali· Independent acljudil!atory machinery for resolving disputes
relating lo the competence or Members of the· House is envisaged as an
attribute. of the democratic system which is a basic feature of our Constilu·
lion. The tenure of the Speak.er, who Is the authority iu the Tenth Schedule
to decide this dispute, Is dependent on the continuous support or the D
majority In the House and, therefore, he does not satisfy the requirement
or such an independent adjudicatory authority; and his choice as the sole
arbiter In the matter violates an essential attribute of the basic feature.
(7168-CJ

(vii) Consequently, the entire Constitution (Fifty-Second Amend· E
ment) Act, 1985 which inserted the Tenth Schedule together with clause
(2) in Arlldes 102 and 191, must be declared unconstitutional. [716C·D]

(viii) Accordingly, all decisions rendered by several Speakers under
the Tenth Schedule must also be declared nullity and liable to be ignored.
[p. 7160]
F

Per Venkatachaliah : I. 1.1. A constitutional document outlines only
broad and general principles meant. to endure and be capable or flexible
llppllcatioo to changing circumstances- a distinction which differentiates
a sta~ute from a Charter under which all statutes are made. (726G·H] G
Cooley on "Constitutional ·Limitation" 8th Edn. Vol. I p. 129,
referred to.
~
1.2. In considering the validity of a constitutional amendment the
changing and the changed circumstances that compelled the ~mendment H
694 SUPREME COURT REPORTS [1992] 1 S.C.R.

A are important criteria. [727B]

U.S. Supreme Court in Mm.well v. Dow 44 Lawyer's Edition 597 at
p. 605, referred to.

1.3. The Tenth Schedule is a part of the Constitution and attracts
"')I
B the same canons of construction as are applicable to the expounding of
the fundamental law. One constitutional power is necessarily conditioned
by the other as the Constitution is one "coherent d'ocument". In expound-
ing the process of the fundamental law the Constitution must be treated
as a logical-whole. [726D-E] >-..__
c
1.4. The distinction between what is constitutionally permissible and
what is outside it is marked by a 'hazy-gray line' and it is the Court's duty
to identify, "darken and deepen" the demarcating line of constitutionality
- a task in which some element of Judges' own perceptions of the
D constitutional ideals inevitably participate. There is no single litmus test
of constitutionality. Any suggested sure decisive test, might after all
furnish a "transitory delusion of certitude" where the "complexities of the
strands in the web of constitutionality which the Judge must alone disen- .,, -
tangle" do not lend themselves to easy and sure formulations one way or
the other. It is here that it becomes difficult to refute the inevitable
E legislative element in all constitutional adjudications. [730D-F]

"77ieol) of Tons'! A111erica11 Law Revie111 7 [1873); Justice Oliver Wen-
1

del Holmes- Free Speech and the Living Co11stitutio11 by H.L. Pohlman 1991-
Edn. p.223, referred to.
F
Amalgamated Society of Railway Sen•ants v. Osbome, 1910 A.C. 87,
referred to.

1.5. A political party functions on the strength of shared beliefs. Any
freedom of its Members to vote as they please independently of the
G political party's declared policies will not only embarrass its public image
and popularity but also undermine public confidence in it which, in the
ultimate analysis, is its source of sustenance- nay, indeed, its very sur-
vival. Paragraph 2(1)(b) of the Tenth Schedule gives effect to this p~in·
ciple and sentiment by imposing a disqu_alilicatio.i on a Member who votes
H or abstains from voting contrary to "al'l.y direction~" issued by the political
KIHOTO HOLLORAN v. ZACHILLHU 695
_,..
party. The provision, however, recognising two exceptions: one when the A
Mem~r obtains from the ,political party prior permission to vote or
abstain from voting and the other when the Member has voted without
obtaining such permission ... his action has been condoned by the political
party. This provision itself accommodates the possibility that· there may
be occasions when a Member may vote or abstain from voting contrary to B
the direction of the party to which he belongs. [734D-E; 7358-C]

Griffith and Ryle on "Parliament, Functions, Practice & Procedure"
1989 Edn. page 119, referred to.
~
1.6. In a sense anti-defection law is a statntory variant of its moral c
principle and justification underlying the power of recall. What might jns-
tify a provision for recali would justify a provision for disqualification for
defec.tion. Unprincipled defection is a political and social evil. It is perceived
as snch by the legislature.· The anti-defection law seeks to recognise the
practical need to place the proprieties of political and personal conduct-
whose awkward erosion and grotesque manifestations have been the bane of D
the times - above certain theoretical assumptions which in reality have fat-
"' ten into a morass of personal and political degradation. This legislativ"
wisdom and perception should be deferred to. The choices in constitutional
adjudications quite clearly indicate the need.for such deference. [739D-G]
E
'Constitutional Reform, -Reshaping the British Political System, by
Rodney Brazier. 1991 Edn. pp. 48-53, referred to.

1.7. The Tenth Schedule does not impinge upon tile rights or im-
munities under Article 105(2) of the Constitution. The freedom of speech
~-

A, of a Member is not an 'absolute freedom. That apart, the provisions of the F
Tenth Schedule do not purport to make a Member of a House liable in any
"Court" for anything said or any .vote given by him in Parliament.
[732H; 733C]

Jyoti Basu & Ors. v. Debi Ghosal& Ors., [1982] 3 SCR318, referred to.
G
2.1. A provision which seeks to exclude the jurisdiction of Courts is
"
... . strictly construed. [742E]

H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur &
Ors. v. Union of India, [1971] 1 SCC 85, referred to. H
••

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

A Mask & Co. v. Secretary of State, AIR 1940 P.C. 105, referred to.

2.2. The rules of construction are attracted where two or more
reasonably possible constructions are open on the language of the statute.
[742F]

B 2.3. As regards Paragraph 7 to the Tenth Schednle, both on its lan-
guage and having regard to the legislative evolution of the provision, the
legislative intent is plain and manifest. The words "no Court shall have any
jurisdiction in respect of any matter connected with the disqualification of
a member" are of wide import and leave no constructional options. This is ~
C reinforced by the legislative history of the anti-defection law. The Constitu-
tion (Fifty-Second Amendment) Bill for the first time envisaged the inves-
titute Qf the power to decide disputes on the Speakers or the Chairmen
whereas the two similar Constitution (32nd and 48th Amendment) Bills,
(which had lapsed) did not contain any clause ousting the jurisdiction of the
Courts. The purpose of the enactment of Paragraph 7, as the debates in the
D House indicate, was to bar the jurisdiction of the Courts under Articles 136,
226 and 227 of the Constitution. [742F-G, H, 7438]

2.4. The changes in Chapter IV of Part V and Chapter V of the Part
VI of the Constitution envisaged by the proviso to Article 368(2) need not
E be direct. The change could be either "in terms of or in effect". It is not
necessary to change the language of Articles 136 and 226 of the Constitu-
tion to attract the proviso. If in effect these Articles are rendered ineffective
and made inapplicable where these articles could otherwise have been
invoked or would, but for Paragraph 7, have operated there is 'in effect' a
change in those provisions attracting the proviso. [p. 745C-D]
F
2.5. Though the Amendment does not bring in any change directly in
the language of Articles 136, 226 and 227 of the Constitution, however, in
effect Paragraph 7 curtails the operation of those Articles respecting
matters falling under the Tenth Schedule. There, is a change in the effect
G in Articles 136, 226 and 227 within the meaning of clause (b) of the proviso
to Article 368(2). Paragraph 7, therefore, attracts the proviso and ratifica-
tion was necessary. [745F]

Sri Sankari Prasad Singh Dea v. Union of India & State of Bihar,
[1952] SCR 89 and Sajjan Singh v. State of Rajasthan, [1965] l SCR 933,
H referred to.
KIHOTO HOLLORAN v. ZACHILLHU 697

-
3.1. The criterion for determining the constitutional validity of a law A
is the competence of the law making authority (which would depend on the
ambit of the Legislative power and the limitations imposed thereon as also
on mode of exercise of the power). While examining the constitutional
validity oflaws the doctrine of severability is applied which envisages that
if it is possible to construe a statute so that its validity can be sustained
against a constitutional attack it should be so construed and that when
B
part of a statute is valid and part is void, the valid part must he separated
from the invalid part. [746C; 747D)

Cooley's Constitutional Limitations; 8th Edn. Vol. I, p. 359-360,
referred to. C
R.M.D. Chamarbaughwal/a v. Union of India, [1957) SCR 930; Shri
Kesavananda Bharti Sripadaga/avam v. State of Kera/a, [1973) Supp. 1 SCR;
Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1981) 1 SCR 206 and
Sambhamurthy & Ors. etc. v. State of Andhra Pradesh & Anr., [1987) 1 SCR
879, referred to. D
3.2. Though the amending power in a constitution is in the nature of
a constituent power and differs in content from the Legislative power, the
limitations imposed on the constituent power may be substantive_ as well
as procedural. Substantive limitations are those which restrict the field of E
exercise of the amending power and exclude some areas from its ambit.
Procedural limitations are those which impose restrictions with regard to
the mode of exercise of the amending power, e.g. the limitation requiring
a special majority under Article 368(2) of the Constitution is a procedural
one. Both these limitations, however, touch and affect the constituent
power itself, and impose a fetter on the competence of Parliament to amend F
the Constitution ~nd any amendment made in disregard of these limita·
tions would go beyond the amending power and would invalidate its
exercise. [746C-E, 747C)

3.3. Although there is no specific enumerated substantive limitation G
on the power in Article 368, but as arising from very limitation in the word
'amend', a substantive limitation is inherent on the amending power so
that the amendment does not alter the basic structure or destroy the basic
features of the Constitution. [747A-B]

• 3.4. The proviso to Article 368(2) was introduced with a view to giving H
698 SUPREME COURT REPORTS (1992) 1 S.C.R.

·""'
-
A effect to the federal principle. Its scope is confined to the limits prescribed
therein and is not construed so as to take away the power in the main part
of Article 368(2). [750C-D)

Madras & Southern Mahratta Railway Company v. Bazwada Muni-
cipality, (1944) 71 I.A. 113 and Commissioner of Income Tax, Mysore v.
B Indo-Mercantile BankLtd., [1959) Supp. 2 SCR 256, referred tQ.

3.5. An amendment which otherwise fulfils the requirements of Article
368(2) and is outside the specified cases which require ratification cannot
be denied legitimacy on the ground alone of the company it keeps. [750E)

c 3.6. The words "the amendment shall also .require to be ratified by
· the legislature" occurring in the proviso to Article 368(2) indicate that
what is required to be ratified by the legislatures of the States is the
amendment seeking to make the change in the provisions referred to in ·
clauses (a) to (e) of the proviso. The need for and the requirement of the
D ratification is confined to that particular amendment alone and not in
respect of amendments outside the ambit of the proviso. The proviso can·
have, therefore, no bearing on the validity of the amendments whieh do not .
fall within its ambit. [750G-H)

3. 7. A composite amendment which makes alterations in the First
E and Fourth Schedules as well as in other proVisions of th~ Constitution
requiring special majority under Article 368(2), ~ven though passed by the
simple majority and not by special majority,.may be upheld in respect of
the amendments made in the First and Fourth Schedules. [755D]

Bribery Commissioner v. Pedrick Ranasinghe, 196? A.C. 172, referred to.
F ,__...
3.8. There is really no difference in principle between the condition
requiring passing of the Bill by a spe~ial majority before its presentation
to the President for assent contained in Article 368(2) ;md the condition
. for ratification of the amendment by the legislatures of not less than
G one-half of the States before the Bill is presented to the President for
assent contained in the proviso. [753D-EJ

H
3.9. The principle of severability can be equally applied to a com-
posite amendment which contains amendments in- provisions which do not
require ratification by States as well as amendment in provisions which
require such ratification and by application of the doctrine of severability,
.
KIHOTO HQLLOHAN v. ZACHILLHU 699

the amendment can be upheld in respect of the amendments which do not A
- ·require ratification and which are within th~ competence of Parliament
alone. Only these amendments in provisions which require ratification
under the proviso need to be struck down or declared invalid. [753E·F]

3.10. The test of severability requires the Court to ascertain whether
the legislature would at all have enacted t.he law If the .severed part was B
not the part of the law and whether after severance what survives can stand
independently and is workable. [753G]

· 3.11. The main purpose underlying the Constitutional (Fifty-Second
Amendment) Act and introduction of the Tenth Schedule is to curb the evil C
of defection which was causing immense mischief in our body-politic. The
ouster of jurisdiction of Courts ·under Paragraph 7 was incidental to and
to lend strength to the main purpose which was to curb the evil of
defection. It cannot be said that the constituent body would not have
enacted the other provisions in the Tenth Schedµle if it had known that
Paragraph 7 was not valid. Nor can it be said that the rest of the provisions D
of the Tenth Schedule cannot stand on their own even if Paragraph 7 is
found to be unconstitutional. The provisions of Paragraph 7 is there(ore,
severable from the rest of the provisfons. [pp. 754A-C]

4.1. Democracy is a basic feature of the Constitution. Wheth.er any E
.particular brand or system of Government by itself, has this attribute of
a basic feature, as long as the essential characteristics that entitle a system
of government to be called democratic are otherwise satisfied is not
necessary to be gone into. Election conducted at regular, prescribed inier-
vals is essential to the democratic system envisaged in the Constitution..
So is the need to protect and sustain the purity of the electoral process. F
That may take within it the quality, efficacy and adequacy of the machinery
. for resolution of electoral disputes. [p. 733F·G]

4.2. In the Indian Constitutional dispensation the power to decide a
disputed disqualification of an elected Member of the House is not treated G
as a matter of privilege and the power to resolve such electoral dispute is
clearly judicial and not legislative in nature. The power to decide disputed
disqualification under Paragraph 6(1) is pre eminantly of a judicial com-
plexion. [pp. 759G, 763C]
. '
Indira Nehru Gandhi v. Raj tyarain, (1976] 2 SCR 347; Special Refer- H
700 SUPREME COURT RJ¥>0RTS (1992] l S.C.R.

A ence No. 1 of 1964, (1965] 1 SCR 413 & Express Newspaper Ltd. v. Union
of India, AIR 1958 SC 578, referred to. -

Australian Boot Trade Ef1JPloyees Federation v. Whybrow & Co., 1910
10 CLR 2Ji6, referred to.

B 4.3. The word "Courts" is used to designate those Tribunals which
are set up in an organised State for the administration of justice. By
Administration of Justice is meant the exercise of judicial power of the State
to maintain and uphold rights and to punish ''wrongs". Whenever there is
an infringement of a right or an injury, the Courts are there to restore the
C vinculum juris, which is disturbed. Where there is a lls an affirmation by
one party and denial by another-and the dispute necessarily involves a
decision on the rights and obligations of the parties to it and the authority
is called upon to decide it, there is an exercise of judicial power. That
authority is called a Tribunal, if it does not have all the trappings of a Court.
Thus, the Speaker or the Chairman, acting under Paragraph 6(1) of the
D Tenth Schedule is a Tribunal. [763G-H, 7'4E-F, 7668]

Associated Cement Companies Ltd. v. P.N. Shanna and Anr., [1965]
2 SCR 366 and Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjlmnwala
& Ors., [1962] 2 SCR 339, referred to.

E
5.1 A 6nality clause is not a legislative magical incantation which
has the effect of telling off Judicial Review. Statutory 6nality of a decision
presupposes and is subject to its consonance with the statute. The prin-
ciple that is applied by the courts is that in spite of a finality clause it is
open to the court to examine whether the action of the authority under
F challenge is ultra vires the powers conferred on the said authority. An
action can be ultra vires for the reason that it is in contravention of a
mandatory provision of the law conferring on the authority the power lo
take such an action. It will also be ultra vires the powers conferred on the
authority if it is vitiated by ma/a fides or is colourable exercise of power
G based on extraneous and irrelevant col!siderations. [pp. 755D, 765D-E]

'Administrative Law' 6th Edn. at p. 720 & Constitutional Fundamen-
tals, the Hamlyn Lectures, 1989 Edn., p. 88, referred to.

H
5.2. The finality clause with the word "6nal" in paragraph 6(1) of
the Tenth Schedule does not completely exclude the jurisdiction of the
--
KIHOTO HOLLOHAN i·. ZACHILLHU 701

Courts under Articles 136, 226 and 227 of the Constitution. But it does A
- have the effect of limiting the scope of the jurisdiction. If the intendment
is to exclude th"e jurisdiction of the superior Courts, the language would
quite obviously have been different. [758H, 759A, 765C, 758A]

Bnmdaban Nuyak v. Election Commission of India & Anr., [1965] 3
SCR 53; Union of India v. Jyoti Prakash Mitter, [1971) 3 SCR 483; Durga. B
Shankar Mehra v. Raghuraj Singh, AIR 1954 SC 520 and Union of India &
Anr. v. Tulsiram Patel & Ors., [1985) Supp. 2 SCR 131, referred to.

5.3. An ?uster clause confines judicial review in respect of actions
falling outside the jurisdiction of the authority taking such action but C
precludes challenge to such action on the ground of an error committed
in the exercise of jurisdiction vested in the authOrity because such an
action cannot be said to be an action without jurisdiction. [765F)

Anisminic Ltd. v.Foreign Compensation Commission, [1969) 2 AC 147;
S.E. Asia Fire Bricks v. Non-Metallic Products, 1981A.C.363, referred to. D
..,. 6. The fiction in Paragraph 6(2) attracts an immunity from mere
irregularities of procedures. The very deeming provision implies that the
proceedings of disqualification are, in fact, not before the House; but only
before the Speaker as a specially designated authority. The decision under
Paragraph 6(1) is not the decision of the House, nor is it subject to the E
approval by the House. The decision operates independently of the House.
A deeming provision cannot by its creation transcend its own power. There
is, therefore, no immunity under Articles 122 and 212 from judicial
scrutiny of the decision of the Speaker or Chairman exercising power
~ under Paragraph 6(1) of the Tenth Schedule. [763D-F] F
7. The scope of judicial review under Articles 136, 226 and 227 of the
Constitution in respect of an order passed by the Speaker/Chairman under
Paragraph 6 would be confined to jurisdictional errors only, viz., inlir-
mities based on violation of constitutional mandate, ma/a /ides, non-com-
pliance with rules of natural justice and perversity. But judicial review G
cannot be available at a stage prior to the making of a decision by the
Speaker/Chairman and a quia-timet action would not be permissible. Nor
would interference be permissible at an interlocutory stage of the .proceed-
,,-..., ings. Exceptions will, however, have to be made in respect of cases where
disqualification of suspension is imposed during the pendency of the H
702 SUPREME COURT REPORTS [1992] 1 S.C.R.

A proceedings and such disqualification or suspension is likely to have grave,
immediate and irreversible repercussionS:and consequence. [768E-H]

Makhan Singh v. State of Punjab, [1964) 4 SCR 797; State ofRaja.ithan
v. Union of India, [1978) 1 SCR 1; Union of India v. Jyoti Prakash Mitter,
-
(supra) and Union of India & Anr. v. Tu/siram Patel & Ors., [1985] Supp.
B 2 SCR 131, referred to.

8. The ~ffice of the Speaker is held in the highest respect and esteem in
Parliamentary traditions. The evolution of the institution of Parlimentary
democracy has as its pivot the institution of the Speaker. He is said to be the
C very embodiment of propriety and impartiality. He performs wide ranging
functions including the performance of important functions of a judicial
character. It would, indeed be unfair to the high traditions ofthat great office
to say that the investiture in it of this jurisdiction would be vitiated for
violation of a basic feature of democracy. It is inappropriate to express
distrust in the high Olnce of the speaker, merely because some of the
D Speakers are alleged, or-even found, to have discharged their functions not in
keeping with the great traditions-of that high office. The Robes of the Speaker
do change and elevate the man inside. [770G-H, 771A, 772A, 773A-B] Y

G. V. Mavalankar ; The Office of Speaker, Journal. of f'.arliamentary
E Information, April 1956, Vol. 2. No. 1 p.33; HOP, Deb. Vol.IX (1954), CC
3447-48 and Erskine May-Parliamentary Practice - 20th edition p. 234 and
M.N. Kaul and SL. Shakdher in 'Practice ana Procedure of Parliament' 4th
Edition, referred to.

9.1. The words "any direction" occurring in Paragraph 2(1)(b) of the
F Tenth Schedule require to be construed harmoniously with the other
provisions and appropriately confined to the objects and purposes of the
Schedule. Those objects and purposes define and limit th~ contours of its
meaning. The assignment of a limited meaning is not to read it down to
promote its constitutionality but because such a construction is a har-
G monious construction in the context. There is no justification to give the
words the wider meaning. [774H, 775A-B)

Parkash Singh Badal & Ors. v. Union of India & Ors., AIR 1987 Punjab
& Hal-yana 263, referred to.

H 9.2. While construing Paragraph 2(1).(b) it cannot be ignored that
KIHOTO HOLLOHAN v. ZACHILLHU 703

.
under the Constitution members .of Parliament as well as of the State A
Legislature enjoy freedom of speech in the House though this freedom is
subject to the provisions of the Constitution and the rules and standing
orders regulating the Procedure of the Hause. The disqualification Im-.
posed by Paragraph 2(l)(b) must be so construed as not to unduly Impinge
on the said freedom of speech of a member; This would be possi!>le if B
Paragrapli 2(l)(b) is confined in its scope by keeping in view the object
underlying the amendments contained in the Tenth Schedule namely, to
curb the evil or 111ischief of political defections motivated by the lure of
office or other· similar considerations.· [p. 775C-D]

9.3. In view of the consequences of the disqualification, i.e., termina- C
tion of the membership of a House, it would be appropriate that the direc-
tion or whip which results in such disqualification under Paragraph 2(l)(b)
of the Tenth Schedule is so worded as to clearly indicate that voting or
abstaining from voting contrary to the said direction would result .in incur-
ring the disqualification under Paragraph 2(l)(b), so that the member con-
cernecLhas fore-knowledge of the consequences flowing from his conduct in D
voting or abstaining from voting contrary to such a direction. [775H, 776A-B]

. 10.1. The purpose of interlocutory orders Is to preserve in status-quo
the rights. of the parties, so that, the proceedings· do not become lnfruc-
tuous by any unilateral overt acts by one side or the other during its E
pendency. [776G]

10.2. The interlocutory orders in th~ instant case were necessarily
justified so that, no land-slide changes were allowed to occur rendering the
proceedings ineffective and infructuous. [776H, 777A]
F
Per VERMA, J. : 1. Under the Constitution of India which deli.neates ·
the spheres of jurisdiction o,f the legislature and the judiciary, the power
to construe the meaning of the proYisions in the Constitution and the laws
is entrusted to the judiciary with finality attached to the decision of this
Court inter alia by Article 141 about the true meaning of any enacted
provision, and Article 144 obliges all authorities in the country. to act in G
aid of this Court. It is, therefore, not permissible in ou~ constitutional
scheme. for any other authority to claim that power in exclusivity, or in
supersession of this Court's verdict. Whatever be the controversy prior to
• this Court entertaining such a matter, it must end when the Court is seized
of 'the 'matter for pronouncing its verdict and it is the constitutional H
704 SUPREME COURT REPORTS [1992] 1 S C.R.

A obligation of every person and authority to accept its binding effto ,.hen
the decision is rendered by this Court. [p. 784F ·HJ

Cohens v. Virginia, 6 Wheat 264, 404, 5 L.Ed, 257, 291 (1821) and State
of Madras v. V.G. Row, (1952] SCR 597, referred to.

B 2.1. The finality clause in Para 6(1) of the Tenth Schedule to the
Constitution which says that the decision of the Chaivman or as the case
may be, the Speaker of the House shall be final is not decisive. Such a
·finality clause in a statute by itself is not sufficient to exclude the jurisdic·
lion of the High Courts under Articles 226 and 227 and the Supreme Court
C under Article 136 of the Constitution, the finality being for the statute
alone. This is apart from the decision being vulnerable on the ground of
nullity. Sub-paragraph (1) alone is, therefore, insufficient to exclude the
extra-ordinary jurisdiction of the High Courts and the plenary jurisdiction
of this Court. [788B·CJ

D 2.2. The ambit of a legal fiction must be confined to the limitation
implici.t in the words used for creating the fiction and it cannot be given an
extended meaning to include therein something in addition. In construing y·
the fiction it is not to be extended beyond the language of the Section by
· which it is created and its meaning must be restricted by the plain words
used. It cannot also be extended by importing another fiction. [788E, 789A]
E
2.3. The legal fiction in sub-paragraph (2) of para 6 of the Tenth
Schedule serves a limited purpose and brings the proceedings under
sub-paragraph (1) thereof within the ambit of clause (l) of Article 122 or
Clause (1) of Article 212, and, therefore, there is no occasion to enlarge its
scope by reading into it word~ which are not there and extending it also to
F
clause (2) of these Articles. [788C, 789B]

Commissioner of Income-tax v.Ajax Products Ltd., [1965] l SCR 700,
referred to.

G 2.4. A matter falling within the ambit of clause (l) of either of the
two Articles 122 or 212 is justiciable on the ground of illegality or perver·
sity in spite of the immunily it enjoys to a challenge on the ground of
"irregularily of procedure". [788E-F]

2.5. The decision relating to disqualification of a member does not •
H relate to regulating procedure or the conduct of business of the House
KIHOTO HOLLOHAN >'. ZACHILLHU 705

provided for in clause (2) of Articles 122 and 212 and taking that view . A
would amount to extending the fi~tion beyond its l1111guage and importing
another fiction, for this purpose which is not permissible. That being so,
the matter falls within the ambit of clause (1) only of Articles 122 and 212

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

B
Sp/. Ref No. I of 1964 (Keshav Singh 's case) (1965) 1 SCR 413.

~ 3.1. The words in Paragraph 7 of the Tenth Schedule with its non·
obstante clau'se 'notwithstanding anything in this Constitution' fol·
lowed by expression 'no court shall have any jurisdiction', are very wide
and ordinarily mean that this provision supersedes any other provision
c
in the Consti\ution, and leave no doubt that the bar of - jurisdiction
of Courts is complete excluding also the jurisdiction of the Supreme
Court and the High Courts under Articles 136, 226 and .227 of the
Constitution :respectively. Further, the expression 'in respect of any
matter connected with the disqualification of a Member of a House D
undoc this Schedule' is wide enough to include not merely the inter·
,_ mediate stag~ of the proceedings relating to disqualification but also
the final order on the question of disqualification made under para-
graph 6. This conclusion is reinforced by the finality clause and deem·
ing provision in para 6 of the Tenth Schedule and by the legislative
E
history·of the absence of such a provision excluding the Court's juris·
diction in th~ earlier two Bills which had lapsed. [pp. 789F-G, 790C, HJ

3.2. Para 7 of the Tenth Schedule is, therefore, unconstitutional and
to that extent at least the Constitution does not stand amended in accord-
r:
..... ance with the Bill seeking to make the constitutional amendment. F
[799E]

4.1. Distinction has to be drawn between the abridgement or extinc·
tion of a right and restriction of the remedy for enforcement of the right.
If there is an aliridgement of extinction of the right which results in the
disappearance of the cause of action which enables invoking the remedy G
and in the absence of which there is no occasion to make a grievance and
invoke the subsisting remedy, then the change brought about is in the right
and not the remedy. On the other hand, if the right remains untouched so
• that a grievance based thereon can arise and. therefore, the cause of action
subsists, but the remedy is curtailed or extinguished so that the cause of H
706 SUPREME COURT REPORTS [i992J 1 S.C.R.

A action cannot be enforced for ')'llnt of that remedy, then the change made
is in the re~edy and not in tljt subsisting rights. [793A·CJ

Sri Sankari Prasad Sinf'i Deo v. Union ofIndia & State of Bihar, [1952]
SCR89 and Sajjan Singh v:State of Rajasthan, [1965] 1 SCR 933, explained.

B 4.2. The instant case, in unequitocal terms, is that of destroying the
remedy by enacting para 7 of the Tenth Schedule making a total exclusion
of judicial review including that by the Supreme Court under Article 136

C
and the High Courts under Articles 22.6 and 227 of the Constituti6n. But
for para 7 which deals with the remedy and not the right, the jurisdiction
of the Supreme Court under Articlo 136 and that ofthe·High Courts under
4
Articles 226 and 227 would remain unimpaired to challenge the decision
under para 6, as in the case of decisions relating to other disqualifications
specified in clause (1) of Articles 102 and 191, which remedy continues to
subsist. [793D-FJ

D 4.3. The extinction of the remedy alone without curtailing the right,
since the question of disqualification of a member on the ground of
defection under the Tenth Schedule does require adjudication on enacted
principles, results in making a change in Article 136 in Chapter IV in Part
V and Articles 226 and 227 in Chapter V in Part VI of the Constitution.·
E [793FJ

4.4. The Constitution (Fifty-Second Amendment) Bill, thrµfore, at·
tracted the proviso to Article 368(2) requiring ratification by the specified
number of State Legislatures before its presentation to the President for
his assent. [793G]
F
5.1 The proviso to Article 368(2) of the Constitution contains a
constitutional limitation on the amending power; and prescribes as a part
of the special ·procedure, prior assent of the State Legislatures before
presentation of the Bill to the President for his assent in the case of the
relevant Bills. This is a condition interposed by the proviso in between the
G passing of the Bill by the requisite majority in each House and presenta-
tion of the Bill to the President for the assent, which assent results in the
Constitution automatically· standing amended in accordance with the
terms of the Bill. The Bills governed by the proviso, therefore, cannot be
presented to the President for his assent without the prior ratification by •
H the specified number of State Legislatures. [795C-E]
KIHOTO HOLLORAN v. ZACHILLHl.J 707

5.2. The conseqnence of the Constitntion standing amended in ac· . A
cordance with the terms of the Bill on assent by the President, which is the
snbstantive part of Article 368, results only when the Bill has been
presented to the President for his assent in conforniity with the special
procedure after performance of the conditions precedent, namely, passing
of the Bill by each House by the requisite majority in the case of all Bills;
B
and in the case of Bills governed by the proviso, after the Bill has been
passed by the requisite majority in each House and it has also been ratified
by the Legislature by not less than one-half of the States. Non-compliance
of the special procedure prescribed in Article 368(2) cannot bring 'about
. the result of the Constitution standing amended in accordance with the
terms of the Bill. [795F-G, H, 796AJ c
Kesavananda Bharati v. Sfate ofKera/a, [1973] Supp. 1 SCR, relied on.

5.3. The ordinary role of a proviso is to carve out an exception from
the general mle in the main enacting part. A Bill falling within the ambit
of the proviso to cl.(2) of Article 368 is carved out of the main enactment D
in clause (2) as an exception on account of which it cannot result in
amendment of the Constitution on the President's assent without prior
ratification by the specified number of State Legislature. [797G-H, 798A-B)

5.4. The entire Tenth Schedule is enacted in exercise of the COD• E
stituent power under Article 368, not merely para 7 therein, and this has
been done without following the mandatory special procedure prescribed.
It is, therefore, the entire Constitution (Fifty Second) Amendment Bill and
not merely para 7 of the Tenth Schedule which required prior ratification
by the State of. Legislatures. before its presentation to the President for his
assent, it being a joint exercise by the Parliament an·d the State Legisla·. F
tores. The. stage of presentation of the Bill to the President for .his assent
not having reached, the President's assent was non est and it could not
result in ame;.dment of the Constitntion in accordance with the terms of
the Bill. It is not a case of severing the invalid constituent part from the
remaining ordinary legislation. [799G-H, 800A; 802C]
G
6.1. The doctrine of severability applies in a case where an otherwise
validly enacted legislation contains a provision suffering from a defect of
lack of legislative competence and the invalid provision is severaiile leaving
--: , the remaining valid provisions a viable whole. This doctrine has no ap·
plication where the legislation is not validly enacted due to non-compliance H'
708 3UPREME COURT REPORTS (1992) 1 S.C.R.

A of the mandatory legislative procedure sach as the mandatory special
procedure prescribed for exercise of the constituent power. The doctrine
does not apply to a still born legislation. It is not possible to infuse life in
a still born by any miracle and deft surgery even though it may be llOSSible
to continue life by removing a congenitally defective part by surgical skill.
B [SOOD-El

The Bribery Commissioner v. Pedrick 1?.anasinghe, (1965] AC 172,
referred to.

6.2. Severance of para 7 of the Tenth Schedule could not be made for
C the pufpose of ratification or the Pre,ident's assent and, therefore, not
sue.~ severance can be made even for the ensuing result. If the President's
assent cannot validate para 7 in the abscince of prior ratification; the same
assent cannot be accepted to bring aboot a different result with regard to
the remaining part of the Bill. [800A-Bj
'
D
7. The test whether the enactment would have been made without
para 7 indicates that the legislative intent was to make the enactment only
with para 7 therein and not without it, otherwise the enactment did not
require the discipline of Article 368 and exercise of the constituent power
and mode of ordinary legislation could have been resorted to in accordance
E with sub-clause (e) of clause (1) of Articles 102 and 191, which would
render the decision on the question of disqualification on the ground of
defection also amenable to judicial review as in the case of decision on
questions relating to other disqualifications. [802F-H, 803A]

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

8.1 Democracy is a part of the basic structure of our Constitution,
and rule of law; and free and fair elections are basic features of democracy.
· One of the postulates of free and fair elections is provision for resolution
G of election disputes as also adjudication of disputes relating to subsequent
disqualifications by an independent authority. It is only by a fair adjudica-
tion of such disputes relating to validity of elections and subsequent

H
disqualifications of members that true reflection of the electoral mandate
and governance by rule of law essential for democ~acy can be ensured.
[803E-GJ -
KIHOTO HOLLOHAN v. ZACHILLHU 709

8.2. In the democratic pattern adopted by our Constitution, not obly A
the resolution of election dispute is entrusted to a judicial tribunal, but
even the decision on questions as to disqualification of members under
Articles 103 and 192 is contemplated by an independent authority outside
the house, namely, President/Governor in accordance with the opinion of
the Election Commission, all of whom are high constitutional
B
functionaries with security of tenure, independent of the will of the House.
[803G·H, 804A]

8.3. Sub-clause (e) of clause (1) in Articles 102and191 which provide
for enactment of any law by the Parliament to prescribe any disqualifica·
tion other than those prescribed in the earlier sub-clauses of clause (1), c
clearly indicates that all disqualifications of Members were contemplated
within the scope of Articles 102 and 191. All disqualification including.
disqualification on the ground of defection, in our constitutional scheme,
are, therefore, different species of the same genus, namely, disqualifica·
lion, and the constitutional scheme does not contemplate any difference in D
their basic traits and treatment; and were meant to be decided by an
independent authority outside the House such as the President/Governor,
in accordance with the opinion of·another similar independent constitu·
tfonal functionary, the Election Commission of India, who enjoys the
security of tenure of a Supreme Court Judge with the same terms and
conditions of office. [8048-E] E.

8.4. The Speaker's office is undoubtedly high and has considerable
aura with the attribute of impartiality. This aura of the office was even
greater when the Constitution was framed and yet the framers of the
Constitution did not choose to vest the authority of adjudicating disputes F
as to disqualification of Members to the Speaker; and provision was made
in Articles 103 and 192 for decision of disputes by the President/Governor
in accordance with the opinion of the Election Commission. In the Tenth
· Schedule, the Speaker is made not only the sole but the final arbiter of
such dispute with no provision for any appeal or revision against the
Speaker's decision to any independent outside authority. This departure G
in the Tenth Schedule is a reverse trend and violates a basic feature of the
Constitution. [804F-G, 80SE]

8.5. The Speaker being an authority within the House and his tenure
being dependent on the will of majority therein, likelihood of suspicion of H
710 SUPREME COURT REPORTS [1992] 1 S.C.R.

A bias could not be ruled out. The question as to disqualification of a
member has adjudicatory disposition and, therefore, requires the decision
to be rendered in consonance with the scheme for adjudication of disputes,
Rule of law has in it firmly entrenched natural justice, of which, Rule
against Bias Is a necessary concomitant; and basic postulates of Rule
against Bias are : Nemo judex in causa sua - 'A Judge is disqualified from
B determining any case in which he may be, or may fairly be suspected to be,
biased'; and 'it is of fundamental importance that justice s~ould not only
he done but should manifestly and undoubtedly be seen to be done'.
•"
[804H, 805A·B] ,:...___
c 8.6. It is the Vice-President of India. who Is ex-officio Chairman of
the Rajya Sabha and his position being akin to that ff the President of
India, is different from that of the Speaker. The observations relating to
tile office of the Speaker do not apply lo the Chairman of the Rajya Sabha,
that is the Vice-President of India." [805F-G]
D 8.7. Since the conferinent of authority Is on the Speaker and the
provision being u~workabl• for the Lok Sabha and the Staie Legislatures,
-¥
cannot be sustained, even without para 7, the entire Tenth Schedule is
rendered invalid in the absence of any valid authority for decision of the I-
dispute notwithstanding the fact that this defect would not apply to the Rajya
E Sabha alone whose Chairman is the Vice-President of India. The statutory
exception of doctrine of necessity has no application since designation of
authority in the Tenth Schedule is made by ch.lice while enacting the legisla· )!!
lion instead of adopting the other available options. [SOSH, 806A-B]

ORIGINAL JURISDICTION: Transfer Petition (Civil) No. 40 of 1991.
F 1
•• ,.
(Under Article 139 A(l) of the Constitution of India).

WITH

G Writ Petition (Civil) No. 17 of 1991.

Soli J. Sorabjee, Vijay Hansaria and Suni! Kr.Jain for the Petitioner

Ejaz Maqbool and Markand D. Adkar for the Respondents.
r-
H The Judgment of the Court was delivered by
• KIHOTO HOLLOHAN v. ZACHILLHU 711

(OPERATIVE CONCLUSIONS IN THE MAJORITY OPINION) A
[Per VENKATACHALIAH, K. JAYACHANDRA REDDY AND
AGRAWAL, JJ.].

1. The Writ Petitions, Transfer Petitions, Civil Appeals, Special
Leave Petitions and other connected matters raising common questions as B
to the constitutional validity of the Constitu.tion (52nd Amendment) Act,
1985, in so far as it see.ks to introduce the Tenth Schedule in the Constitu-
tion. of India, were heard together. Some of these matters involve investiga-
tion and determination of factual controversies and of the extent of
applicability to them of the conclusions reached on the various constitu- C
tional 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. 2421/90 on the
file of the High Court of Guwahati to this Court. D

- 2. 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.

3. For the reasons to be set out in the detailed judgment 'to follow, E
the follbwing 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 F
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 amend-
ment would require to be ratified in. accordance with the pr~viso G
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 ofsuch Bill H
712 SUPREME COURT REPORTS (1992] l S.C.R.

A 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 opera-
tion of the proviso should not be extended to constitutional
amendment' in a Bill which cm stand by themselves without
such ratification.
B
(C) That, accordingly, the Ccmstitution (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
arc amenabk to the legal-sovc reign of the amending process
c 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
D 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 \vhich is independent of, and stands apart from, the
~

---
'
- '

E main provisions of the TenLh 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

F
workable and arc not truncated hy the excision of Paragraph 7. ...
I '

(E) That the Paragraph 2 of the Tenth Schedule to the Con-
stitution is valid. Its provisions do not suffer from the vice of
suhvcrting democratic rights of c lcctcd Members of Parliament
and the Legislatures of the States. It does not violate their
freedom of speech. freedom of vote and conscience as con-
G
tended.

H
The provisions or Paragraph 2 do not violate any rights or
freedom under Articles 105 and 194 'of the Constitution.

Th~ proYisions are salutory and are intended to strengthen the
..
KIHOTO HOLi.OHAN v. ZACHILLHU 713

fabric of Indian parliamentary democracy by curbing unprin- A
cipled and unethical political defections.

\F) The contention that the provisions of the Tenth Schedule,
even with the exclusion of Paragraph 7, violate the basic struc-
ture of the Constitution in that they affect the democratic rights
of elected members and. therefore, of the principles of Par- B
liamentary democracy is unsound and is rejected.

(G) The Speakers, Chairmen while exercising powers and dis-
charging functions under the Tenth Schedule act as Tribunal
adjucating rights and obligations under the Tenth Schedule and C
their decisions in that capacity are amenable to judicial review.

Ho\'iever, 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 Speakers/Chairmen. Having
regard to the Constitutional intcndment and the status of the D
repository of the a<ljudicatory power, no quia tinret actions are
permissible, the only exception for any interlocutory inter-
ference being cases of interlocutory disqualifications or suspen-
sions which may have grave, immediate and irreversible
repurcussions and consequence. E

(H) That Paragraph 6 (I) of the Tenth Schedule, to the extent
it seeks to impart finality to the decision of the Speakers/Chair-
men is valid. But the concept of statutory finality embodied in
Paragraph 6 (1) does not detract from or abrogate judicial
review under Articles 136, 226 and 227 of the Constitution in F
so far as infirmities based on violations of constitutional man-
dates, ma/a [Ides, non-compliance with Rules of Natural Justice
and perversity, are conaerned.

I) That the deeming provision in Paragraph 6 (2) of the Tenth G
Schedule attracts an immunity analogous to that in Articles 122
(1) and 212 (1) of the Constitution as understood and explained
in Keshav Sing/J's Case (Sp!. Ref., Nt>. I, 11965! 1 SCR 413) to
protect the validity of proceedings from n1erc irr~gularitics of
procedure. The deeming provision, having regard 'to the words
"be deemed to be proceedings in Parliament" or "proceedings H
714 SUPREME COURT REPORTS [1992) 1 S.C.R.

A in the Legislature of a State" confines the scope of the fiction
accordingly.

(J) That contention that the invesiiture of adjudicatory func-
tions in the Speakers/Chairmen would by itself vitiate the
provision on the ground of likelihood of political bias is un-
B sound and is rejected. The Speakers/Chairmen hold a pivotal
position in the scheme of Parliamentary democracy and are
guardians of the rights and privileges of the House. They are
expected to and do take far reaching decisions in the function-
ing of Parliamentary democracy. Vestiture of power to adjudi-
c cate questions under the Tenth Schedule in such a con-
stitutional functionaries should not be considered excep.-
tionable.

(K) In the view we take of the validity of Paragraph 7 it is
unnecessary to pronounce on the contention that judicial review
D is a basic structure of the Constitution and Paragraph 7 of the
Tenth Schedule violates such basic structure.

ii. The factual controversies raised in the Writ Petition will, however,
have to be decided by the High Court applying the principles declared and
E 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.]
F 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 Schedule, in clear terms and in effect excludes
G 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 at an interim stage but also after the final decision on
the question of disqualification on the ground of defection.

H 2. Para 7 of the Tenth Schedule, therefore, in terms and in effect,
KIHOTO HOLLOHAN v. ZACHILLHU 715

makes a change in Articl~ 136 in Chapter IV of Part V; and Articles 226 A
and 227 in Chapter V of Part VI of the Constitution, attracting the. proviso .
to clause (2) of Article 368.

3. In view of para 7 in the Bill resulting in the Constitution (Fifty-
Second Amendment) Act, 1985 it was required to be ratified by the
Legislature of not less than one-half of the States as a condition precedent B
before the Bill could be presented to the President for assent, in accord-
ance 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, c
the so-called assent of the President was non est and did not result in the
Constitution standing amended in ~ccordance with the terms of the Bill.

4. In the absence of ratification by the specified number of State
Legislatures before presentation of the Bill to the President for his assent, D
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 prmiding for the amend-
ment. E

5. Doctrine of Seven1bility cannot be applied to a Bill making a
constitutional amendment where any part thereof attracts the Proviso to
clause (2) of Article 368.
F
6. Doctrine of Severability is not applicable lo permit striking down
para 7 alone saving the remaining provisions of the Bill making the Con-
stitutional Amendment on the ground that para 7 alone attracts the proviso
to clause (2) of Article 368.

7. Even otherwise, having regard to the prov1s10ns of the Tenth G
Schedule of the Constitution inserted by the Constitution (Fifty-Second
Amendment) Act, 1985, the Doctrine of Severability does not apply to it.

.~ 8. Democracy is a part of the basic structure of the Constitution and
free and fafr elections with provision for resolution of disputes relating to H
716 SUPREME COURT REPORTS [1992J 1 S.C.R.

A the same as also for adjudication of those relating to subsequent dis-
qualification by an independent body outside the House are essential
featurc·s 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 an attribute of this
B basic feature. The tenure M 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, therfore, 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.
c
9. Consequently, the entire Constitution (Fifty-Second Amendment)
Act, 1985 which inserted the Tenth Schedule together \vith clause (2) in
Articles 102 and 191, must be declared unconstitutional or an abortive
atlempt to so amend the Constitutio!'·
D
10. It follows that all decisions rendered by the several Speakers
under the Tenth Schedule must also be declared nullity and liable to be
ignored.

11. On the above conclusions, it does not appear necessary or ap-
E propriate to decide the. remaining questions 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
F Court for the purpose of deciding the constitutional issues and of declaring
the la\v on the matter.

In accordance \vith the majority opinion. the factual controversies
raised in the Writ Petition will, however, have to he decided by the High
G Court Jpplving the principles declared and laid down by the majority. The
Writ Petition is, accordingly remitted to the High Court for such disposal
in accorUanc~ \Vith la\V.

VENKATACHALIAH, J. In these pctiti,1ns the rnnstitutional validity
of the Tenth Schedule of the CPnstitution introduced hy the Constitution
H (Fifty-Second Amendment) Act. \ <)85, is ""aikJ. These two cases were
KJHOTO HOLLOHAN ,._ ZACHILLHU [VENKATACHALIAH, J.] 717

amongst a batch of Writ Petitions, Transfer Petitions, Civil Appeals, Spe- A

- cial Leave Petitions and other similar and connected matters raising com-
mon questions which were all heard together. On 12.11.1991 we made an
order pronouncing our findings and conclusions upholding the constitu-
tional validity of the amendment and of the provisions of the Tenth
Schedule, except for Paragraph 7 which was declared invalid for want of B
ratification in terms of and as required by the proviso to Article 368 (2) of
the Constitution. In the order dated 12.11.1991 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.

2. This order is made in Transfer Petition No. 40 of 1991 and in Writ C
Petition No. 17 of 1991. We have not gone into the factual controversies
raised in the Writ-Petition before the Guwahati High Court in Rule No.
2421 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. D

3. Shri F.S. Nariman, Shri Shanti Bhushan, Shri M.C. 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. Sorabjee, Shri R.K:Garg and Shri Santhosh Hegde sought to support
E
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.

4. Before we proceed to record our reasons for the conclusions
reached in our order dated 12th November, 1991, on the contentions raised F
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 G
concern. If it is not combated, it is likely to undermine the very
foundations 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 H
718 SUPREME COURT REPORTS (1992] 1 S.C.R.

A 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:

B ".a high-level Committee consisting of representatives of politi-
cal 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 recommenda-
c tions 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
D 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
G~neral Election; at least 438 defections occurred in these 12
months alone. Among Independents, 157 out of a total of 376
E 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
F of Ministers which they helped to bring into being by defections.
The other disturbing features of this phenomenon were: mul-
tiple acts of defections by the same person or set of persons
(Haryana affording a conspicuous example); few resignations
of the membership of the legislature of explanations by in-
dividual defectors, indifference on the part of defectors to
G 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 defec-
tions".

H (emphasis supplied)
KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.j 719

The Committee on Defections recommended that a defector should A .
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 io 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 B
as legislator. The Committee on Defections could not, t,owever, reach an .
agreed conclusion in the matter of disqualifying a defector from continuing
to be a Member of Parliament/State Legislator.

Keeping in view the recommendations of the Committee on Defee- C
tions, .the Constitution (Thirty-Second Amendment) Bill, 1973 was intro-
duced 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 D
which he became a Member after such election, or on his voting or
abstalliing from voting in such House contrary to any direction issued by
such political party or by any person or authoriiy 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 E
was introduced in the Lo~ 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.
F
5. 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 G
grounds of disqualification are specified in Paragraph 2 of the Tenth
Schedule.

Paragraph 2(1) relates to a Member of the House belonging to a
political party by which he was set up as a candidate at the election. U oder H
7W SUPREME COURT REPORTS [1992] 1 S.C.R.

A Paragraph 2(1) (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
B behalf without obtaining, in either case, prior permission of such political .
party, person or authority 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. T~is sub para would also apply
to a nominate~ 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
C months of his taking oath.

Paragraph 2(2) 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 a House would incur his disqualification under sub
D para (3) if he joins any political party.after the expiry of six months from
the date on which he takes his seat:

6. Paragraphs 3 and 4 of the Tenth Schedule, however, exclude the
applicability of the provisions for disqualification under para 2 in cases of
E "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
F 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 2(1) (a)
proceed on the premise that political propriety and morality demand that if
such a person, after the election, changes his affiliation and leaves the politi-
G cal 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 slick is applied to a person who is elected as an Independent
candidate and wishes to join a political party after the election.

Paragraph 2 {l) (b) deals with a slightly different situation 1.c. a
H variant where dissent becomes defection. If a Member while remaining a
KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 721

Member of the political party which had set him up as a candidate at the A
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 tb the direction issued by the political party.
B

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,
c
as· the case may be, the Speaker of such Ho~e 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 D
subject to such disqualification, the questiol) 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 (l)of this Paragraph
in relation to any question as to disqualification of a Member E
of a House under this Schedule shall be deemed to be proceed-
ings in Parliament within the meaning of Article 122 or, as the
case may be, proceedings in the Legislature of a State within
the meaning of Article 212."

Paragraph 7 says: F

"7. Bar of jurisdiction of courts: Notwithstanding anything in
this Constitution, no court shall have any .iurisdiction in respect
of any matter connected with the disqualification of a Member
of a House under this Schedule."'
G
7. The challenge to the consLitvtional validity of the Amendment which
introduces the Tenth Schedule is sought to be sustained on many grounds. It
is urged that the constitutional Amendment introducing Paragraph 7 of the
Tenth Schedule, in terms and in effect, seeks lo make a change in Chapter IV
of Part V of the Constitution in that it denudes the jurisdiction of the H
7'12 SUPREME COURT REPORTS [1992) 1 S.C.R.
·-"'-
A 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
B contended, the whole Amending Bill- not merely Paragraph 7 - fails and the
amendment merely remains an abortive attempt to bring about an amend-
men!. It is further contended that the very concept of disqualification for
defection is violative of the fundamental values and prjnciples under)Ying ;..____
Parliamentary democracy and violates an elected representative's freedom
c of speech, right to dissent and freedom of conscience and is, th¢refore,
unconstitutional as qestructive of a basic feature of the India';' Constitution.
It is also urged thatthe 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 n:iachinery for resolu-
D
tion 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 Indian Parliamentary system are nominees of politi-
cal parties and are not obliged to resign their party affiliations after election
- is violative of this requirement.
E
It is ·alternatively contended that if it is to be held that the amend-
ment does not attract the proviso to Article 368(2), 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.
-~

F
8. There are certain other contentions which, upon a clo&er examina-. ''
tion, 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 2(b) the expression "any direction" is so
·a 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 constitu-

-
tional ideals and values would be a source of disqualification. These are,
indeed, matters of construction as to how, in the context in which the oc-
casion for the introduction of the Tenth Schedule arose and the high purpose
H it is intended to serve, the expression "any direction" occurring in Paragraph
__, KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 723

2(b) is to be understood. Indeed, in one of the decisions cited before us A
(Prakash Singh Badal & Ors. v. 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.

9. Supporting the constitutionality of the Amendment, respondents
urge that the Tenth Schedule creates a non-justiciable constitutional area B
dealing with certain complex political issues which have no strict ad-
judicatory disposition. New rights and obligations are created for the first
_--I 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 c
innate complexities are in political thickets and are not amenable to judicial
processes and the Tenth Schedule has merely recongnised this complex char-
acter 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 Houses of Legislature of the States erivisa'ged in D
h )'
Articles 122 and 212, respectively, and further by expressly excluding the
Courts' jurisdiction under Paragraph 7.

Indeed, in constitutional apd legal theory, it is urged, there is really no
ouster of jurisdiction of Courts or of Judicial Review as the subject-matter E
itself by its inherent character and complexities is not amenable to but out-
side 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

r, that the Speaker or the Chairman, as the case may be, exercising powers
under Paragraph 6(1) of the Tenth Schedule function not as a statutory F
Tribunal but as a part of the State's Legislative Department .

.It is, therefore, urged that no question of ihe 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
G
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.
. -; 10. It is further urged that Judicial Review- apart from Judicial
Review of the legislation as inherent under a written constitution- is H
724 SUPREME COURT REPORTS [1992] 1 S.C.R.
:....-
A 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 pr0\1sion cannot be invalidated on some general doctrine not
found in the Constitution itself.

11. On the contentions raised and urged at the hearing the questions
B that fall for consideration arc 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
c fundamental principles of Parliamenta~y 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 pro,1sions 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
D system of Parliamentary democracy.

(B) Ha\ing 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 Articles 136, 226 and 227 of the' Constitution of
E
India and, therefore, the Bill introducing the amendment at-
tracts the proviso to Article 3<>8(2) of the Constitution. and ~--

would require t_o be ratified by th,· legislative of the States
before the Bill is presented for Presidential assent.

F (C) In view of the admitted non-compliance with the pro'1so
...
to Article 368(2) not only Paragraph 7 of the Tenth Schedule, ' '
hut also the entire Bill resulting in the Constitution (Fifty-
Second Amendment) Act, 1985, stands vitiated and the pur-
ported amendment is abortive and does not in law br.ing about
a valid amendment.
G
Or whether, the effect of such non-compliance invalidates
Paragraph 7 alone and the other pro\isions which, by themsel-
ves, do not attract the pro\-iso do not become invalid.
--··~
H ( D) Thal even if the effect of non-ratification by the legislature
KIHOTO HOLLOHAN v. ZACH!LLHU [VENKATACHALlAH, J.] 725

of the States is to invalidate Paragraph 7 alone, the whole of A
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 B
Schedule, after the severance and exision 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. c
(E) That the deeming provision in Paragraph 6(2) 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. D

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 E
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

r
; . event, barred as Paragraph 6(1) 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' liars examination
F

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 G
includes an independent impartial machinery for the adjudica-
tion 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 jurisdic- H
726 SUPREME COURT REPORTS [1992] l S.C.R.

A tion 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
B their Membership of the political party after their election to
the office of the Speaker gr 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
c the Constitution, the am.endment is unconstitutional as it erodes
and destroys judicial review which is one of the basic features
of the Constitution.

12. Re: Contention (A) : ·

D The Tenth Schedule is part of the Constitution and attracts the same
canons of construction as are applicable to the expounding of the fun·
damental 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 the Tenth Schedule should be read
subject to the basic fe~tures of the Constitution. The Tenth Schedule and
E certain essential incidents of democracy, it is urged, cannot co.exist.
In e*pounding 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:
...
F "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. Vol. 1page65]
G
A constitutional document outlines only broad and general principles
meant to endure and be capable of flexible application to changing cir-
cumstances - a distinction which differentiates a statute from a Charter
under which all statutes are made. Cooley on "Constitutional Limitations"
H says:
KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 727

"Upon the adoption of an amendment to a constitution, the A
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. Vol. 1page129]
B
13. In considering the validity of a constitutional amendment the
changing and the changed circumstances that compelled the amendment
arc important criteria. The observations of the U.S. Supreme Court in
Maxwell v, Dow (44 Lawyer's Edition 597 at page 605) are worthy of note:

" ..... to read its language in connection with the known condition C
of affairs out of which the occasion for its adoption may have
arisen and then lo construe it, if there be therein any doubtful
experssions, in a way sofar as is reasonably possible, to forward
the known purpose or object for which the amendment was
adopted ....... " D
'r 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 E
of the leaders of political parties themselves. Parliament mir-
rored this widespread concern ............. "

[page 1]
r.
, 14. It was strenuously contended by Shri Ram Jethmalani and Shri F
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 defec- G
tions 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 H
728 SUPREME COURT REPORTS (1992] 1 S.C.R.

A 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:

B "It ought to be the happiness and glory of a representative to
live in the strictest union, the closest corrspondence, 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
c 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,
D instead of serving you, if he sacrifices it to your opinion."

(Sec: Parliament Functions, Practice & Procedures by JAG
Griffith and Michael Ryle 1989 Edn. page 70]

E 15. Shri Jcthmalani and Shri Sharma also relied upon certain observa-
tions of Lord Shaw in Amalgamated Society or Railway Serva/l/s v. Osbome,
[1910 A.C. 87] 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 ~
F 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
G 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
H of the parliamentary party and the maintenance by it of its
--< KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAI I. J.] 729

policy, he has come under a contract to place his rnlc and A
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 constitu-
tion or with that independence and freedom which have hither-
to been held to lie at the basis of representative government in
B
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 C
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] D

"Still further, in regard to the Member 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 himsel(
to subordinate his opinions on public questions to others, for
E
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 ........ "

[Pape 115]
F
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 G
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 that case.

But, the real question is whether under the lnuian constitutional
scheme is there any immunity from constitutional correctives against a H
730 SUPREME COURT REPORTS [1992) 1 S.C.R.

A le~slatively 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
B
and imminent threat to the very fabric of Indian demorcracy posed by
certain levels of political behaviour 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 propen-
sities, are dangerous to and undermine the very survival of the cherished
C values of democracy. There is the le~slative determination through ex-
perimental 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
D 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 constitu-
E tional ideals inevitably participate. There is no single litmus test of con-
stitutionality. 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
F is here that it becomes difficult to refute the inevitable legislative element ' '
in all constitutional adjudications.

17. All distinctions of law-even Constitutional law-are, in the
ultimate anlyses, "matters of degree". At what line the 'white' fades into
G the 'black' is c"cntially a le~latively perceived demarcation.

In his work "Oliver .Wendell Holmes - Free Speech and the Living
Constitution" (1991 Edition: New York University Publication) Pohhniin
says:

H ''All distinctions of law, as Holmes 11e~er tired of saying, were
'
KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 731

therefore "matters of degree." Eve11 in the case of constitutional A
adjudication, in which the issue was whether a particular exer-
cise 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 par-
ticular exertiim of legislative power approached tlte ltazy gray line B
separating individual rig/its from legislative powers, tlte judge's
assessment of co11stitutionality became a subtle value judgment.
The judge's decision was therefore not deductive, formal, or
conceptual in any sense.

[Page 217] C
[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 D
around the opposite poles, and begin to approach each other,
the distinction becomes more difficult to trace; tlte detennina-
tions are made one way or tlte other 011 a very slight prepon-
derance of feeling, rather than articulate reason; and at last a
mathematical line is arrived at by the contact of contrary E
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)] F
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 features of
the Constitution, perhaps, ignores the essential organic and evolutionary
character of a Constitution and its flexibility as a living entity to provide G
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 H
732
•
SUPREME COURT REPORTS [1992] 1 S.C.R.

A 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 preeminently an
area where Judges should defer to legislative perception of and reaction
to the pervasive dangers of unprincipled defections to protect the com-
B munity. "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 direc-
tion that judges should defer when the legislature reflected the
pervasive and predominant values and interests of the Eom-
c munity. 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 condi-
D tion 1vas an "ei il" that O!tght to be co"ected by certain nieans,
1

then the govenunent had the po1ver to do it: "Legislation 111ay
begin 1vhere an evil begins"; "('onstitutionill la1v like other nrortal
contrivances has· to take sonic chances._" "Some play must be
allowed to the joints if the machine is to work." All of these
E rhetorical flourishes suggest that Holmes deferred to the legis-
lature if and when he thought it accurately mirrored the abiding
beliefs, interests, and values of the American public."

(emphasis supplied)

F !See: Justice Oliver Wendell Holmes-Free Speech and the
Living Constitution by H.L. Pohlman 1991 Edn. page 233] .'
18. Shri Sharma contends that the rights and immunities under
Article 105(2) of the Constitution which according to him are placed by
G judicial decisions even higher than the fundamental-right in Article 19(1)
(a), 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 105(2).
Article 105(2) of the Constitution pro,ides:

H "105. Po\vers, privileges, etc., of the Houses of Parliament and
KIHOTO HOLLOHAN v. ZACHJLLHU [YENKATACHALIAH, J.] 733

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

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

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

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

(Page 326]

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

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

-- Constitution, are elevated into fundamental rights and that the Tenth
Schedule would have to be struck down for its inconsistency with Article H
734 SUPREME COURT REPORTS [1992) 1 S.C.R.

A 105 (2) as urged by Shri Sharma.

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

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

F ~
"Loyalty to party is the llOnn, beillg based Oil shared beliefs. A > '
divided party is looked Oil with suspicioll by the electorate. It is
natural for Members to accept tl1e opinioll of tlteir Leaders alld
Spokesnten on the wide van·ety of nzatters on ivhich those Ment-
bers have llO specialist knowledge. Generally Members will ac-
G cept majority decisions in the party even when they disagree.
It is understandable therefore that a Member who rejects the
party whip even on a single occasion will attract attention and
more criticism than sympathy. To abstaill from voting whell
required by party to vote is to suggest a degree of unreliability. To
H, vote against party is disloyalty. To join with others i11 abstention
KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 735

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

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

20. The working of the modern Parliamentary democracy is complex.
E
The area of the i11ter-se relationship between the electoral constituencies
and their elected representatives has many complex features and overtones.
The citizen as the electorate is said to be the political sovereign. As long
as regular general elections occur, the electorate remains the arbiter of the
ultimate composition of the representative legislative body to which the F
Government of the day is responsible. There are, of course, larger issues
of theoretical and philosophical objections to the legitimacy of a repre-.
sentative Government which might achieve a majority of the seats but
obtains only minority of the electoral votes. It is said that even in England
this has been the phenomenon in every general elections in this century G
except the four in. the years 1900, 1918, 1931 and 1935.

But in the area of the inter-relationship between the constituency and
its elected representative, it is the avowed endeavour of the latter to requite
·the expectations of his voters. Occasionally, this might conflict with his
political obligations to the political party sponsoring him which expects-- H
736 SUPREME COURT REPORTS [1992] 1 S.C.R.

A and exacts in its own way-loyalty to it. This duality of capacity and
functions are referred to by a learned author thus:

"The functions of Members are of two kinds and flow from the
working of representative government. When a voter at a
general election, in that hiatus between parliaments, puts his
B cross against the name of the candidate he is [most often!
consciously performing two functions: seeking to return a par-
ticular person to the house of commons as Member for that
constituency; and seeking to return to power as the government
of the country a group of individuals of the same party as that
c particular person. The voter votes for a representative and for
a government. He may know that the candidate he votes has
little chance of being e[ected .......... "

"When a candidate is elected as a Member of the House of
Commons, he reflects those two functi9ns of the voter.
D Whatever other part he may play, he will be a constituency M.P.
As such, his job will be to help his constituents as individuals
in their dealings with the departments of State. He must listen
to their grievances and often seek to persuade those in authority
to provide remedies. He must have no regard to the political
E leanings of his constituents for he represents those who voted
against him or who did not vote at all as much. as those who
voted for him. Even if he ;trongly disagrees with their complaint
he may still seek to represent it, though the degree of en-
thusiasm with which he does so is likely to be les~ great."

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

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

" .... The first is that he may feel that the policy of his party
whether it is in office or in opposition, on a particular matter
is not one of which he approves. He may think this because of
H his personal opinions or because of its special consequences
KIHOTO HOLLORAN v. ZACHILLHU [VENKATACHALIAH, J.J. 737

for his constituents or outside interests or because it reflects a A
general position within the party with which he cannot agree.
On many occasions, he may support the party despite his
disapproval. But occasionally the strength of his feeling will be
such that he is obliged to express bis opposition either by
speaking or by abstaining on a vote or even by voting with the B
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 C
lines. Members, who are neither Ministers nor front-bench
Opposition spokesmen, do regard as an important part of their
function the general scrutiny of Governmental activity. This is
particularly the role of select committees \\hich have, as we
shall see, gained new prominence since 1979. No doubt, it is
superficially paradoxical to see Members on the Government D
side of the House joining in detailed criticism of the administra-
tion and yet voting lo maintain that Government in office. But
as one prominent critic of government has said, thereis nothing
inherently contradictory in a Member sustaining the Executive
in its power or helping it to overcome opposition at the same E
time as scrutinising the work of the executive in order both to'
improve it and to see that power is being exercised in a proper
and legitimate fashion."

[pages 69 and 70 J

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

Rodney Brazier says:

"Once returned to the House of Commons the \!ember's party
expects him to be loyal. This is not entirely unfair or ~proper,
for it is the price of the party's label which secured his election. G
But the question is whether the balance of a Member's obliga-
tions has tilted too far in favour of the requirements of party.
17te nonsense that a Wliip--even a three-line whfp--is no more
...... tlran a sununons to attend the House, and _that, once there, the'
Member is completely free to speak a11d vote as he thinks fit, was H
•

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

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

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

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

F The learned author, referring to cases in which an elected Member
is seriously unrepresentative of the general constituency opinion, or whose ' .
personal behaviour falls below standards acceptable to his constituents
commends that what is needed is some additional device to ensure that a
Member pays heed to constituents' views. Brazier speaks of the efficacy of
device where the constituency can recall its representative. Brazier says:
G
"What sort of conduct might attract the operation of the recall
power? First, a Member miglit have misused his Membership of
tire House, for example to further his personal financial i11terests
in a 111a111ier offensive to his constinienrs. They might consider
H that the action taken against him by the house (or, indeed, lack
____,
KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 739

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

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

_. -<[ 21. It was then ocged by Shri Jethmalani that the distinction between
the conception of "defection" and "split" in the Tenth Schedule is so thin
and artificial that the differences on which the distinction rests are indeed H
740 SUPREME COURT REPORTS (1992] 1 S.C.R.

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

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

go by except the legislative wisdom and, again, as Justice Holmes said, the
Court has no practical criterion to go by except "what the crowd wanted".
We find no substance in the attack on the statutory distinction between
"defection" and "split".
G Accordingly we hold:

"that the Paragraph 2 of the Tenth Schedule to the Constitution
is valid. Its provisions do not suffer from the vice of subverting
democratic rights of elected Members of Parliament and the
H Legislatures of the States. It does not violate their freedom of
KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 741

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

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

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

22. Re: Contention (B):

The thrust of the point is that Paragraph 7 brings about a change in
the provisions of Chapter IV of Part V and Chaptt!r V of Part VI of the D
Constitution and that, therefore, the amending Bill falls within proviso to
Article 368 (2). We might, at the outset, notice Shri Sibal's submissions on
a point of construction of Paragraph 7. Shri Sibal urged that Paragraph 7,
prope~ly construed, does not seek to oust the jurisdiction of Courts under
Articles 136, 226 and 227 but merely prevents an interlocutory inter.wention E
or a quia-timet action. He urged that the words "in respect of any matters
connected with the disqualification of a Member" seek to bar jurisdiction
only till the maner is finally decided by the speaker or Chairman, as the
case may be, and does not extend beyond that stage and that in dealing
with the dimensions of exclusion of the exercise of judicial power the broad F
considerations are that provisions which seek to exclude Courts' jurisdic-
tion shall be strictly construed. Any construction which results in denying
the Courts' is, it is urged, not favoured. Shri Sibal relied upon the following
observations of this Court in H.H. Maharajadhiraja Madhav Rao Jiwaji Rao
Scindia Bahadur & Ors: v. Union of India, [1971] 1 SCC 85:
G
" ....The proper forum under our Constitution for determining
a legal dispute is the Court which is by training and experience,
assisted by properly qualified advocates, titted to perform .that
task. A provision which purports to exclude the jurisdiction of
the Courts in certain matters and to depriow the aggrieved party H
742 SUPREME COURT REPORTS [1992] 1 S.C.R.

A of the normal remedy will be strictly construed, for it is a
principle not to be whittled down that an aggrieved party will
not, unless the jurisdiction of the Courts is by clear enactment
or• necessary implication barred, be denied his right to seek
recourse to the c7ts for determination of his rights ............ ".

B "The Court will avoid imputing to the Legislature an intention
to enact a provision which flouts notions of justice and norms
of fairplay, unless a contrary intention is manifest from words
plain and unambiguous. A provision in a statute will not be
construed to defeat its manifest purpose and general values
c which animate its structure. In an avowedly democratic polity,
statutory provisions ensuring the security of fundamental
human rights including the right to property wil~ unless the
contrary mandate be precise and unqualified, be construed
liberally so as to uphold the right. These rules apply to the
interpretation of constitutional and statutory provisions alike."
D
[page 94-95]

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

But the rules of construction are attracted where two or more
reasonably possible constructions are open on the language of the statute.
Bu~ here both on the language of Paragraph 7 and having regard to the
F legislative evolution of the provision, the legislative intent is plain and
manifest. The words "no Court shall have any jurisdiction in respect of any
' '
matter connected with the disqualification of a member" are of wide import
and leave no constructional options. This is reinforced by the legislative
history of the anti-defection law. The deliberate and purposed presence of
Paragraph 7 is clear from the history ol the previous proposed legislations on
G the subject. A comparison of the provisions of the Constitution (Thirty-
second Amendment) Bill, 1973 and the Constitution (Forty-eight Amend-
ment) Bill, 1978, (both of which had lapsed) on the one hand and the
Constitution (52nd Amendment) Bill, 1985, would bring-out the avowed and ~-

deliberate intent of Paragraph 7 in the Tenth Schedule. The previous Con-
H stitution (32th and 48th Amendment) Bills contained similar provisions for
i KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 743
-----<

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

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

"It will be seen that these articles do nOI either in terms or in
~ effect seek to make any change in artick 226 or in articles 132 F
J, and 136. Article 31A aims at saving laws providing for the
compulsory acquisition by the State of a certain kind of proper-
ty from the operation of articles 13 read with other relevant
articles in Part Ill, while article 318 purports to validate certain
specified Acts and Regulations already passed, which, but for
such a provision, would be liable to be impugned under Article G
13. It is not correct to say that the powers of the High Court
under Article 226 to issue wrils "for the enforcement of any of .
the rights conferred by Part Ill"' or of this Court under Articles
,.. ~
132 and 136 to entertain appeals from orders issuing or refusing
such writs are in any way affected. They remain just the same H
744 SUPREME COURT REPORTS [1992] l S.C.R.

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

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

(P. 940]

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

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

H (P.944]
KIHOTO HOLLO HAN v. ZACHILLHU [VENKATACHALIAH, J.] 745
-'"'-'
The propositions that fell for consideration is Sa11kari Prasad Singh's A
and Sajja11 Singh 's cases are indeed different. There the jurisdiction and
power of the Courts under Articles 136 and 226 were not sought to be
taken away nor was there any change brought about in those provisions
either "in terms or in effect", since the very rights which could be adjudi-
cated under and enforced by the Courts were themselves taken away by
the Constitution. The result was that there was no area for the jurisdiction
B
of the Courts to operate upon. Matters are entirely different in the context
of paragraph 7. Indeed the aforesaid cases, by necessary implication sup-
port the point urged for the petitioners. The changes in Chapter IV of Part
V and Chapter V of Part VI envisaged by the proviso need not be direct.
The change could be. either "in terms of or in effect". It is not necessary c
to change the language of Articles ·136 and 226 of the Constitution to
attract the proviso. If in effect these Articles are rendered ineffective and
made inapplicable where these articles could otherwise have been invoked
m would, but for Paragraph 7, have operated there is 'in effect' a change
in those provisions attracting the proviso. Indeed this position was recog-
D
nised in Sajja11 Si11gh's case where it was observed: I
"If the effect of the amendment made in the fundamental rights
on Article 226 is direct .and not incidental and is of a very
significant order, different considerations may perhaps arise.''
E
[P.944)

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

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

Tenth Schedule of the Constitution in terms and in effect bring H
746 SUPREME COURT REPORTS [1992J 1 S.C.R.

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

B 25. Re: Co11te11tio11s 'C' and 'D':

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

E 26. The Constitution provides for amendment in Articles 4, 169, 368,
paragraph 7 of Fifth Schedule and paragraph 21 of Sixth Schedule. Article
4 makes provisions for amendment of the First and the Fourth Schedules,
Article 169 provides for amendment in the provision of the Constitution
which may be necessary for abolition or creation of Legislative Councils in
F States, paragraph 7 of the Fifth Schedule provides for amendment of the
Fifth Schedule and paragraph 21 of Sixth Schedule provides for amend-
ment of the Sixth Schedule. All these provisions prescribe that the said
a~endments can be made by a law made by Parliament which can be
passed like any other law by a simple majority in the Houses of Parliament.
Article 368 confers the power to amend the rest of the provisions of the
G Constitution. In sub-Article (2) of Article 368, a special majority-two-
thirds of the members of each House of Parliament present and voting and
majority of total membership of such House - is required to effectuate the
amendments. The proviso to sub-article (2) of Article 368 imposes a further
requirement that if any change in the provisions set out in clauses (a) to
H (e) of the proviso, is intended it would then be necessary that the amend-
KIHOTO HOLLOHAN ''· ZACHILLHU [VENKATACHALIAH, J.] 747

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

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

27. 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 D
and that when part of a statute is \'alid and part is void, the valid part must
be separated from the invalid part. This is done by applying the doctrine
of severability. The rationale or this doctrine has been explained by Cooley
in the following words:

"It will somcrimcs he found that an act or the legislature is E
opposed in some of its provisions to the constitution, while
others, standing by themselves, would be unobjectionable. So
the forms observed in passing it may be sufficient for some of
the purposes sought to be accomplished by it, but insufficient
for others. In any such case the portion which connicts with F
the constitution, or in regard to which the necessary conditions
have not been observed, must be treated as a nullity. Whether
the- other parts of the statute must also be adjudged void
because of the association must depend upon a consideration
of the object of the law, and in what manner and to what extent
the unconstitutional portion affects the remainder. A statute, it G
has been said, is judicially held to be unconstitutional, because
it is not within the scope of legislative authority; it may either
propose to accomplish something prohibited by the constitu-
t:on, or to accomplish some lawful, and even laudable object,
by means repugnant to the Constitution of the United States H
748 SUPREME COURT REPORTS [1992] 1 S.C.R.

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

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

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

D "The question whether a statute, which is void in part is to be
treated as void in toto, or whether it is capable of enforcement
as to that part which is valid is one which can arise only with
reference to laws enacted by bodies which do not possess
unlimited powers of legislation, as, for example, the legislatures
in a Federal Union. The limitation on their powers may be of
E two kinds: ll may be. with reference to the subject-matter on
which they could legislate, as, for example, the topics
enumerated in the Lists in the Seventh Schedule in the Indian
Con.stitution, ss. 9l and 92 of the Canadian Constitution, and
s. 51 of the Australian Constitution; or it may be with reference
F lo the character of the legislation which they could enact in
respect of ~ubjcL·t1., a~'.'>i~ncd to them, as for example, in relation
to the fundamental rights guaranteed in Part Ill of the Cnn-
stitution and similar constitutionally protected rights in the
An1erican and oth,,:r Constitution.:;. When a legislature \Vho.sc
authority i~ ~uhj,,:ct to lin1itations aforesaid enacts a law \vhich
G is \i.·ho1ly in excess of its po\vcrs. it is entirely void and must he
completely ignored. BuJ where the legislation falls in part within
the ·area allotted to ii and in part outside it. it is undoubtedly
void as to the laller: 1'u1 does it on that account become
necessarily void in its l!ntir..:ty? The ans\\'Cr to this 4ucstion must
'H depend on whether what is valid could be separated from what
KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAll, J.J 749

- is invalid, and that is a question which has to be decided by the
court on a consideration of the provisions of the Act.'' [P.940]

The doctrine of severability has been applied by this Court in cases
of challenge to the validity of an amendment on the ground of disregard
A

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

28. Is there anything in the procedural limitations imposed by sub-
Article (2) of Article 368 which excludes the doctrine of severability in
respect of a law which violates the said limitations? Such a violation may
arise when there is a composite Bill or what is in statutory context or jargon D
called a 'Rag-Bag' measure seeking amendments to several statutes under
;,- one amending measure which seeks to amend various provisions of the
Constitution some of which may attract clauses (a) to (e) of the proviso to
Article 368(2) and the Bill, though passed by the requisite majority in both
the Houses of Parliament has received the assent of the President without
it being sent to States for ratification or having been so sent fails to receive E
such ratification from not less than half the States before the Bill is
presented for assent. Such an Amendment Act is within the competence
of Parliament insofar as it relates to provisions other than those mentioned
in clauses (a) to (e) of pr9viso to Article 368(2) but in re<pect of the
amendments introduced in provisions referred to in clauses (a) to (e) of F
proviso to Article 368(2), Parliament alone is not competent to make such
amendments on account of some constitutionally recognised federal prin-
ciple being invoked. If the doctrine of severability can be applied it can be
upheld as valid in respect of the amendments within the competence of
Parliament and only the amendments which Parliament alone was not
competent to make could be declared invalid. G

29. Is there anything compelling in the proviso to Article 368(2)
requiring it to be construed as excluding the doctrine of scvcrability to such
an amendment'! It is settled rule of statutory construction lhat "the proper
function of a proviso is to Cxccpt and deal \vith a case 'vhich could H
750 SUPREME COURT REPORTS (199211 S.C.R.

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

The proviso to Article 368(2) appears to have been introduced with
a \·iew lo giving effect to the federal principle. In the matter of amendment
C of provisions specified in clauses. (a) to (e) relating to legislative and
executive powers of the States vis-a-vis the Union, the Judiciary, the
election of the President and the amending power itself, which have a
bearing on the States, the proviso imposes an additional requirement of
ratification of the amendment which seeks to effect a change in those
•
D provisions before the Bill is presented fm the assent of the President. It is
salutary that the scope of the proviso is confined to the limits prescribed
therein and is not construed so as to take away the power in the main part
,,f Article Y.S (2). An amendment which otherwise fulfils the fcquiremcnts
of Article 368(2) and is outside the .specified cases which require ratifica-
E tion cannot be denied legitimacy on the ground alone of the company it
keeps. The main par! of Ar1icle Y.8(2) directs that when a Bill which has
been passed by the requisite special majority by both the Houses has
reccivcJ the assent of the President "the Constitution shall stand amended
in accordance with the terms of the Bill". The proviso cannot have the
effect nf interdicting this constitutional declaration and mandate to mean
F that in a case where the proviso has not been complied- even the amend-
ment> which do not fall within lhc ambit of the proviso also become
abortive. The words "the amendment shall also require to be ratified by
the legislature" indicate that what is required to be ratified by the legisla-
tures of the States is the amendment seeking to make the change in the
G provisions referred to in clauses (a) to (e) of the proviso. The need for and
the requirement of the ratification is confined to that particular amend-
ment alone and not in respect of amendments outside the. ambit of the
proviso. The proviso can have, therefore, no bearing on the validity of the
amendments which do not fall within its ambit. Indeed the following
H observations of this Court in Sujja11 Singh case (supra) arc apposite:
KlllOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 751

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

(P.940) B

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 ratifica- .
tiun nf the Bill by not less than one-half of the States is a condition-prece-
dent for the presentation of the Bill for the assent of the President. It is C
further argued that a Bill which seek.~ to make a change in the provisions
referred to in clauses (a) to (e) of the pro,iso cannot be presented before
the President for his assent without such ratification and if assent is given
by the President in the absence of such ratification, the amending Act
would be void and ineffeL1ive in its entirety. D

A similar situation can arise in the context of the main part of Article
:11"'8(2) which provides: "when the Bill is passed In each House by a majority
nf the total membership of that House and by a majority of not less than
two-thirds of the Members of that House present and voting, it shall be
presented to the President". Here also a condition is imposed that the Bill £
shall be presented to the President for his assent only after it has been
paS<ied in each House by the prescribed special majority. An amendment
in the First and Fourth Schedules referable to Article 4 can be introduced
hy Parliament by an nrdinary law passed by simple majority. There may be
a Bill which may contain amendments made in the First and Fourth F
Schedules as well as a'l'cndmcnls in other prO\isions of the Constitution
-excluding those referred to in the proviso which can be amended only by
a special majority under Article 368(2) and the Bill after having been
passed only by an ordinary majority instead of a special majority has
received the assent of the President. The amendments which are made in
the First and Fourth Schedules by the said amendment Act were validly G
made in view of Article 4 but the amendments in other prO\isions were in
disregard to Article 368(2) which requires a special majority. Is not the
doctrine of severability applicable to such an amendment so that amend-
ments made in the First and Fourth Schedules may be upheld while
declaring the amendments in the other prmisions as ineffective? A con- H
752 SUPREME COURT REPORTS (1992) 1 S.C.R.

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

31. In Bribery Commissio11er v. Pedrick Ranasi11ghe, (1%5 A.C. 172),
the Judicial Committee has had to deal with a somewhat similar situation.
B This was a case from Ceylon under the Ceylon (Constitution) Order of
1946. Clause ( 4) of section 29 of the said Order in Council contained the
amending power in the following terms:

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

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

E Every certificate of the Speaker under this sub-section shall be
conclusive for all purposes and shall not be questioned in any
court of law."
[P.194]
In that case, it wa' found that section 41 of the Bribery Amendment
F Act, 1958 made a provision for appointment of a panel by the Governor-
General on the advice of the Minister of Justice for selecting members of
the Bribery Tribunal while section 55 of the Constitution .vested the ap-
pointment, transfer, dismissal and disciplinary control of judicial officers
in the Judicial Service Commission. It was held that the legislature had
purported to pass a law_ which, being in conflict with section 55 of the
G Order in Council. must he treated, if it is to be valid, as an implied
alteration of the Constitutional prrn·isions about the appointment of judi-
cial officers and could only he made hv laws which comply with the special
kgislative procedure laid down in .,ectiorr 29(4). Since there was nothing
to show that the Bribery Amendment Act, 1951 was passed by the neces-
H sary two-thirds majority, it was held that "any Bill which does not comply
KIHOTO HOLLORAN v. ZACHILI.HU [VENKATACHALIAH, J.] 753

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

32. The test of ,e,·crability requires the C'!.llft to ascertain whether G
the legislature would at all have enacted the law if the severed part was
not the part of the law and whether after severance what survives can stand
independently and is wnrkahle. If the provisions of the Tenth Schedule arc
considered in the backgrnun<l of the legislative history. namely, the report
of the 'Committee on Defections· as well as the earlier Bills which \Vere H
754 SUPREME COURT REPORTS [1992) 1 S.C.R.

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

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

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

H That Paragraph 7 of the Tenth Schedule contains a provision
r KIHOTO HOLLORAN v. ZACHILLHU [VENKATACHAL!Afl, J.I 755

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

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

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

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

"If a statute says that the decision 'shall be final' or 'shall be
final and conclusive to all intents and purposes' this is held to
mean merely t.hat there is no appeal: judicial control of legality
is unimpaired. "Parliament only gives the impress of finality to H
756 SUPREME COURT REPORTS (1992) 1 S.C.R.

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

Learned Professor further says:

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

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

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

H " ....but once it is held that it is a judi, ial tribunal empowered
KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 757

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

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

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

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

[p.522] E
34. Again, in Union of India v. Jyothi Prakash Mitter, (1971] 3 SCR
483 a similar finality clause in Articles 217(3) of the Constitution came up
for consideration. This Court said:

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

[p.505] H
758 SUPREME COURT REPORTS (1992) t S.C.R.
~
A Referring t~ the expression •'final" occurring in Article 311(3) of the
Constitution t~ Court in Union of India & A111: v. Tulsiram Paid & On.
(1985) Supp. 2 SCR 131 at 1>age 274 held:

" ........The finality given by clause (3) of Article 311 to the
disciplinary authority's decision that It was not reasonably prac-
8 ticable to hold the inquiry is not binding upon the coun. The
coon will also examine I.he charge of ma/a fides, if any, made
1n the writ· petition. In examining the relevancy of the reasons,
the court will consider the situation which according lo the
disciplinary authority made it come lo the conclusion that it
c was not reasonably practicable to hold the inquiry. If the court
finds that the reasons are irrelevant, then the recording or its
satisfaction by the disciplinary authority would be an abuse or
power conferred upon it by clause (b)•.... ;"

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

In Brnndaba11 Nayak v. E/ectio11 Commissio11 of India & A11r., (1965)
3 SCR 53, in spite of finality allached by Article 192 lo the decision of the
Governor in respect of disqualification incurred· by a member or a. Staie
Legislature subsequent to the election, the mailer was examined by this
F
Court on an appeal by special leave under Article 136 of the Constitutiort -
>
against the decision of the High Court dismissing the writ petition filed
under Article 226 of the ConstitulioIL Similarly in U11io11 of /11dia v. Jyoti
Prakas/1 Miller, [1971[ 3 SCR 483, in spite of finality attached lo the order
of the President with regard to the determination of age of a Judge of the
G High Court under Article 217 (3) of the Constitution, this Court examined
the legality of the order pa"cd by the President during the pendency of
an appeal filed under Article 1'6 or ihe Constitution.

There is authority against the acceptability of the argument that the
H word "final" occurring in Paragraph 6(1) has the effect of excluding the
KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.) 759
-~
jurisdiction of the Courts in Articles 136, 226 and 227. A
36. The cognate questions are whether a dispute of the kind en-
visaged by Paragraph 6 of the Tenth Schedule is in a non-justiciable area
and that, at all events, the fiction in Paragraph 6(2) that all proceedings
under Paragraph 6(1) of the Tenth Schedule be deemed to be "proceedings
in Parliament" or "Proceedings in the Legislature of a State" attracts B
immunity from the scrutiny by Courts as under Article 122 or 212, as the
case may be.
-~
Implicit in the first of these postulates is the premise that questions
of disqualification of members of the House are essentially matters per-
taining to the Constitution of the House and, therefore, the Legislature is
c
entitled to exert its exclusive power to the exclusion of the judicial power.
This assumption is based on certain British legislature practices of the past
in an area which is an impalpable congeries of legal rules and conventions
peculiar to ·and characteristic of British Parliamentary traditions. Indeed,
the idea appears to have started with the proposition that the Constitution D
of the House was itself a matter of privilege of the House. Halsbury
lllllt contains this statement:
./
~ "1493, Privilege of the House of Commons in relation lo its
constitution: In addition to possessing a complete control over E
the regulation of its own proceedings and the conduct of its
members, the House of Co111111011s claims the exclusive rig/it of
providing, .as it nzay deeni fit, for its own proper constitution."

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

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

'' "' 'were at some stage decided by the House of Commons itself was not·
conclusive that even their power was legislative. The controversy, if any, in
this area is. put at rest by the authoritative earlier pronouncements of this
Court. H
760 SUPREME COURT REPORTs (1992) 1 S.C.R.

A 37. In Indira Nehru Gandhi v. Raj Narain, (1976) 2.SCR 347 Beg J.,
referring to the historical background relating to the resolution of electoral
disputes by the House of Commons said:

"I do not think that it is possible to contend, by resorting to
some concept of a .succession to the powers of the medieval
B "High Court of Parliament" in England, that a judicial power
alSo devolved upon our Parliament through the Constituent
Assembly, mentioned in Sec. 8 of the Indian Independence Act
of 1947. As already indicated by me, the Constituent Assembly
was invest~d with law making and not judicial powers.
c Whatever judicial power may have been possessed once by
English kings, sitting in Parliament, constituting the highest
Court of the realm in medieval England, have devolved solely
on the House of Lords as the final court of appeal in England.
"King in Parliament" had ceased to exercise judicial powers in
any other way long before 1950. And, the House of Commons
D had certainly not exercised a jucjicial power as a successpr to
the <>ne time jurisdiction of the "King in Parliament" with the
possible exc;eption of the power to punish for its contempts ......"
(p. 627 & 628) \ '··
In the same case, Justice Mathew made these observations as to the
E Imperative judicial nature of the power to resolve disputes:
"The concept of democracy as visualised by the Constitution
presupposes the representation of the people in Parliament and
· State Legislatures by the method of election. And, before an
election machinery can be brought into operation, there are -4
F three requisites which require to be attended lo, namely, 0) > '
there should be a set of laws and rules making provisions with
respect to all matters relating to, or in connection with, elec-
tions, and it should be decided as to how these laws and rules
.are to be made; (2) there should be an executive charged with
G the duty of securing the due conduct of elections; and {3) there
should be a judicial tribunal to deal with disputes arisi11g out of
or in connection with elections..... "

(p.504)

H "In whichever body or authority, the jurisdiction, is vested, the
KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 761

exercise of the jurisdiction must be judicial in character. 171is A
court has held that in adjudicating an election dispute an
authority is peifonning a judicial function and a petition for leave
to appeal under Article 136 of the Constitution would lie to this
Court against the decision notwithstanding the provisions of Ar-
ticle 329(b ). "
B
(emphasis supplied)
[p. 506]

-~
It is also .useful to recall the following observations of Gajendragadkar
J., on rhe scope of Article 194(3) of the Constitution, which is analogous C
to Article 105(3) in Special Reference No.1 of 1964 [1965] 1 SCR 413: ·

"This clause requires that the powers, privileges and immunities
which are claimed by the House must be shown to have sub-
sisted at the commencement of the Constitution, i.e., on
January 26, 1950. It is.well-known that out of a large number D
of privileges and powers which the House of Commons claimed
during the days of its bitter struggle for recognition, some were
given up in course of time, and some virtually faded out by
desuetude; and ~o, in every case where a power is claimed, it
is necessary to enquire whether it was an existing power at the E
relevant &ime, It must also appear that the said power was not
only claimed by the House of Commons, but was recognised
by the English Courts. It would obviously be idle to contend
that if a particular power which. is claimed by the House was
claimed by the House of Commons but was not recognised by
the English Courts, it would still be upheld under the latter F
part of clause (3) only on the ground.that it was in fact claimed
by the House of Commons. In otherwords, the inquiry which
is prescribed by this clause is: is the power in question shown
or proved to have subsisted in the House'of Commons at the
relevant time?" G

(See page 442)

This question is answered by Beg, J. in Indira Nehm Gandhi's case:
....
"1 think, at the time our Constitution was framed, the decisipn H
762 SUPREME COURT REPORTS [1992] 1 S.C.R.

A of an election dispute had ceased to be a privilege of the House
of Commons in England and therefore, under Article 105(3),
it could not be a privilege of Parliament in this country."

[p.505]

B 38. Indeed, in dealing with the disqualifications and the resolution of
disputes relating to them under Article.s 191 and 192 or Article 102 and
103, as the case may be, the Constitution has evinced a clear intention to
resolve electoral-disputes by resort to the judicial power of the State.
Indeed, Justice Khanna in Indira Nehrn Gandhi's case said:
c "Not much argument is needed to show that unless there be a
machinery fOT resolving an election dispute and for going into
the allegations that elections were not free and fair being
vitiated by malpractices, the provision that a canadate should
not resort to. malpractices would be in the nature of a mere
D pious wish without any legal sanction. It is further plain that if
the validity of the election declared to be valid only if we
provide a forum for going into those grounds and prescribe a
law for adjudicating upon those grounds; .... " (See page 468)

It is, therefore, inappropriate to claim that the deter'?'inative juris- .
E diction of the Speaker or the Chairman in the Tenth Schedule is not a
judicial power and is within the non-justiciable legislative area. The classic
exposition of Justice Issacs J., in Australian Boot Trade Employees Federa-
tion v. Whybrow & Co., [1910] 10 CLR 226 at page 317, as to what
distinguishes a judicial power from a legislative power was referred to with
F the approval of this Court in Express Newspaper Ltd. v. Union of India, AIR
1958 SC 578 at 611. Issacs J ., stated: ' '
"If the dispute is as to the relativedghts of parties as they rest
on past or present circumstances, the award is in the nature of
a judgment, whicli might have been the decree of an ordinary
G jur!icial tribunal acting under the ordinary judicial power. There
the law applicable to the case must be observed. If, however,
the dispute is as to what shall in the future be the mutual rights
and responsibilities of the parties-in other words, if no present
rights are asserted or denied, but a future rule of conduct is to
H be prescribed, thus creating new rights and obligations, with
KIHOTO HOLLORAN v. ZACHILLHU [VENKATACHAL!AH, J.J 763

sanctions for non-conformity then the determination that so A
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
B
practical effectuation of admitted rights, the proceeding,
though called an arbitration, is rather in the nature of an
appraisement or ministerial act."

In. the present case, the power to decide disputed disqualification
under Paragraph 6(1) is preeminently of a judicial complexion. C
39. The fiction in Paragraph 6(2), indeed, places it in the first clause
of Article 122 or 212, as the case may be. The words "proceedings in
Parliament" or "proceedings in the legislature of a State" in Paragraph 6(2)
have their corresponding expression in Articles 122(1) and 212(1) respec-
tively. This attracts an immunity from mere irregularities of procedures. D

That apart, even after 1986 when the Tenth Schedule was introduced,
the Constitution did not evince &ny intention to invoke Article 122 or 212
in the conduct of resolution of disputes as to the disqualification of
members under Articles 191(1) and 102(1). The very deeming provision
implies that the proceedings of disqualification are, in fact, not before the
E
House; but only before the Speaker as a specially designated authority. The
decision under paragraph 6(1) is not the decision of the House, nor is it
subject to the approval by the House. The decision operates independently
of the House. A deeming provision cannot by its creation transcend its own
power. There is, therefore, no immunity under Articles 122 and 212 from F
judicial scrutiny of the decision of the Speaker or Chairman exercising
power under Paragraph 6(1) of the Tenth Schedule.

40. But then is the Speaker or the Chairman acting under Paragraph
6(1) is a Tribunal ? "All tribunals are not courts, though all Courts are
Tribunals". The word "Courts" i£ used to designate those Tribunals which G
are set up in an organised State for the Administration of Justice. By
Administration of Justice is meant the exercise of judicial power of the
State to maintain and uphold rights and to punish "wrongs". Whenever
there is an infringement of a right or an injury, the Courts are there to
restore the vinculum juris, which is disturbed. See: Harinagar Sugar Mills H
764 SUPREME COURT REPORTS [1992] 1 S.C.R.

A Ltd. v. Shyam Sunder Jhunjhunwala & Ors., [1962] 2 SCR 339. In that case
Hidayatullah, J. said:

" ..... By "courts" is meant courts of civil judicature and by
"tribunals'', those bodies of men who are appointed to decide
controversies arising under certain special laws. Among the
B powers of the State is included the power to decide such
controversies. This is undoubtedly one of the attributes of the
State and is aptly called the judicial power of the State. In the
exercise of this power, a clear division is thus noticeable.
Broadly speaking, certain special matters go before tribunals,
c and the residue goes before the ordinary courts of civil judica-
ture. Their procedures may differ, but the functions are not
essentially different. What distinguishes them has never been
successfully established. Lord Stamp said that the real distinc-
tion is that the courts have "an air of detachment". But this is
more a matter of age and tradition and is not of the essence.
D Many tribunals, in recent years, have acquitted themselves so
well and with such detachment as to make this test insufficient."

[p. 362]

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

H it. The order which the State Government ultimately passes is
\
KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.) 765
---'
described as its decision and It is made final and.binding......" A

(p. 386 and 387)

By these well-known and accepted tests of what constitute a
Tribunal, the Speaker or the Chairman, acting under paragraph 6(1) of the
Tenth Schedule is a Tribunal. B
•
41. 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 C
lim~ed? The finality clause in paragraph 6 does not completely exclude the
jurisdiction of the courts under Articles 136, 226 and 227 of the Constitu-
tion. But it does have the effect of limiting the scope of the jurisdiction.
. The principle that is applied by the courts is that in spite of a finality clause
it is open to the court to examine whether the action of the authority under D
challenge is ultra vires the powers conferred on the said authority. Such an
action can be ultra vires for the reason that it is in contravention of a
mandatory provision of the law conferring on the authority the power to
take such an action. It will also be ultra vires the powers conferred on the
authority if it is vitiated by ma/a fides or is tolourable exercise of power'
based on extraneous and irrelevant considerations. While exercising their E
certio,rari jurisdiction, the courts have applied the' test whether the im-
pugned action falls within the jurisdiction of the authority taking the action
or it falls outside such jurisdiction. An ouster clause confines judicial
review in respect of actions falling outside the jurisdiction of the authority
~ taking such action but precludes challenge to such action on the ground of F
) ' an error committed in the exercise of jurisdiction vested in the authority
because such an action cannot be said to be an action without jurisdiction.
An ouster clause attaching finality to a determination, therefore, does oust
certiorari to some extent and it will be effective in ousting the power of the
court to review the decision of an inferior tribunal by certiorari if the
inferior tribunal has not acted without jurisdiction and has merely made an G
error of law which does not affect its jurisdiction and if its decision is not
a nullity for some reason such as breach of rule of natural justice. See :
Administrative Law by H.W.R. Wade, 6th Edn., pp. 724-726; Anisminic
Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147; S.E. Asia Fire
Bricks v. Non-Metallic Products, (1981) A.C. 363. H'
766 SUPREME COURT REPORTS [1992) 1 S.C.R.

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

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

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

"Of course by reason of cl. (5) of Art. 356, the satisfaction of
the President is final and conclusive and cannot be assailed on
F any ground but this immunity from attack cannot apply where
the challenge is not that the satisfaction is improper or unjus-
tified, but that there is no satisfaction at all. In such a case it
is not the satisfaction arrived at by the President which is
challenged, but the existence of the satisfaction itself. Take, for
example, a case where the President gives the reason for taking
G action under Art. 356, cl. (1) and says that he is doing so,
because the Chief Minister of the State is below five feet in
height and, therefore, in his opinion a situation has arisen where
the Government of the State cannot be carried on in accord-
ance with the provisions of the Constitution. Can the so called
H satisfaction of the President in such a case not be challenged
KIHOTO HOLLO HAN v. ZACHILLHU [VENKATACHALIAH, J.] 767
,.. ---<
on the ground that it is absurd or perverse or ma/a fide or based A
on a wholly extraneous and irrelevant ground and is, therefore,
no satisfaction at all." (pp. 82-83)

'Untwalia, J. has held as follows:

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

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

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

"It is true that while an order passed by the President under
- .. Article 356 is put beyond judicial scrutiny by cl. (5) of Art. 356,
but this does not mean that the Court possesses no jurisdiction H
768 SUPREME COURT REPORTS (1992) 1 S.C.R.
:>---_...
A in the matter at all. Even in respect of cl. (5) of Art. 356, the
Courts have a limited sphere of operation in that on the reasons
given by the President in his. order if the Courts fmd that they /
are absolutely extraneous and irrelevant and based on personal
and illegal considerations the Courts are not powerless to strike
down the order on the ground of ma/a fide if proved." (p. 120)
B
In Union of India v. Jyoti Prakash Mitter (supra); dealing with the
decision of the President under Article 217 (3) on th6 question as to the
age of a: judge of the High Court, requiring a judicial approach it was held
that the field of judicial review was enlarged to cover violation of rules of
,.,
c natural justice as well as an order based on no evidence because such
· errors are errqrs of jurisdiction.

In Union of India & Anr. v. Tulsirom Patel & Ors. {supra) this Court
. w~ dealing with Article 311 {3) of the Constitution which attaches finality
to the order of the disciplinary authority on the question whether it was
D reasonably practicable to hold an iitquiry. It was observed that though the '
'finality' clause did not bar jurisdiction it did indicate that the jurisdiction
is limited to certain grades.

In the light of the decisions referred to above and the nature of
function that is exercised by the Speaker/Chairman under paragraph 6~ the
E scope of judicial review under Articles 136, 226 and 227 of the Constitution
in respect of an order passed by the Speaker/Chairman under paragraph
6 would be confined to jurisdictional errors only viz., infirmities based on
violation of constitutional mandate, ma/a fides, non-compliance with rules
of natural justice and perversity.
F .....
In view of the limited scope of judicial review that is available on • '
account of the finality clause in paragraph 6 and also having regard to the
constitutional intendmcnt and the status of the repository of the ad-
judicatory power i.e. Speaker/Chairman, judicial review cannot be available
at a stage prior to the making of a decision by the Sp.eaker/Chairman and
G a q11ia timet action would not be permissible. Nor would interference be
permissible at an interlocutory stage of the proceedings. Exception will,
however, have to be made in respect of cases where disqualification or
suspension' is imposed during the pendency of the proceedings and such
disqualification or suspension is likely to have grave, immediate and irre- ~ .
H versible repurcussions and consequence.
KIHOTO HOLLORAN v. ZACHILLHU (VRNKATACHALIAH, J.) 769

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

That Paragraph 6(1) of the Tenth Schedule, to the extent ,it
._,.., seeks to impart finality to the decision of the Speakers/Chair-
men is valid. But the concept of statutory finality embodied in
Paragraph 6(1) does not detract from or abrogate judicial
review under Articles 136, 226 and 227 of the Constitution in
c
so far as infirmities based on violations of consitutional man-
dates, ma/a fides, non-compliance with Rules of Natural Justice
and perversity, are concerned.

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

The Speakers/Chairmen while exercising powers and discharg-
)~ ing functions- under the Tenth Schedule act as Tribunal ad- F
•
judicating rights and obligations under the Tenth Schedule and
their decisions in that capacity are amenable to judicial review.

However, having regard to the Constitutional Schedule in the
Tenth Schedule, judicial review should not cover any stage prior
to the making of a decision by the Speakers/Chairmen. Having G
regard to the constitutional intendment and the status of the
repository of the adjudicatory power, no quia timet actions are
permissible, the only exception for any interlocutory inter~
-- ference being cases of interlocutory disqualifications or suspen-
sions which may have grave, immediate and irreversible H
'770 SUPREME COURT REPORTS [1992] 1 S.C.R.

A repurcussions and consequence.

43. Re ; Contention (G) :

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

44. The Tenth Schedule breaks away from the constitutional pattern
for resolution of disqualifications envisaged in Articles 103 and 192 of the
Constitution which· vest jurisdiction in this behalf in the President or the
E Governor acting according to the opinion of Election Commission. The
disqualifications for defection could very well have been included in Article
102(1) or 191(1) as a ground, additional to the already existing grounds
under clauses (a) to (e) in which event, the same dispute resolution
machinery would have dealt with the disqualifications for defections also.
F But the Tenth Schedule, apparently, attempted a different experiment in
respect of this particular ground of disqualification.

45. The question is, whether the investiture of the determinative juris-
diction in the Speaker would by itself stand vitiated as denying the idea of an
independent adjudicatory authority. We are afraid the criticism that the
G provision incurs the vice of unconstitutionality ignores the high status and
importance of the office of the Speaker in a Parliamentary democracy. The
office of the Speaker is held in the highest respect and esteem in Parliamen-
tary traditions. The evolution of the institution of Parliamentary democracy
has as its pivot the institution ~f the Speaker. 'The Speaker holds a high,
H important and ceremonial office. All questions of the well being of the House
KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALWI, J.] 771

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

Mavalankar, who was himself a distinguished occupant of that high
office, says :
B
"In parliamentary democracy, the office of the Speaker is held
in very high esteem and respect. There are many reasons for
this. Some of them are purely historical and some are inherent
in the concept of parliamentary democracy and the powers and
duties of the Speaker. ·Once a person is elected Speaker, he is C
expected to be above parties, above politics. In other words, he
belongs to all the members or belongs to none. He holds the
scales of justice evenly irrespective of party o_r person, though
no one expects that he will do absolute justice in all matters;
because, as a human being he has his human drawbacks and
shortcomings. However, everybody knows that he will intention- D
ally do no injustice or show partiality. "Such a person is natural-
ly held in respect by all."

[See : G.V. Mavalankar : The Office of Speaker, Journal of
Parliamentary Information, April 1956, Vol. 2, No. 1, p.33)
E
Pandit Nehru referring to the office of the Speaker said :

" ........ The speaker represents the House. He represents the
dignity of the House, the freedom of the House and because
the House represents the nation, in a. particular way, the
Speaker becomes the symbol of the nation's freedom and liberty.
F
Therefore, it is right th1t that should be an honoured position,
a free position and should be occupied always by men of
outstanding ability and impaniality."

[See : HOP. Deb. Vol. IX (1954), CC 3447-48) G
Referring to the Speaker, Erskine may says :

"The Chief characteristics attaching to the office of Speaker in
- -~ the House of Commons are authority and impaniality. As a
symbol of his authority he is accompanied by the Royal Mace H
772 SUPREME COURT REPORTS [1992] 1 S.C.R.

A which is borne before him when entering and leaving the
chamber and upon state occasions by the Serjeant at Arms
attending the House of Commons, and is placed upon the table
when he is in the chair. In debate all speeches are addressed
to him and he calls upon Members to speak - a choice which
is not open to dispute. When he rises to preserve order or to
B give a ruling on a doubtful point he must always be heard in
silence and no Member may stand when the Speaker is on his
feet. Reflections upon the character or actions of the Speaker
may be punished as breaches of privilege. His action cannot be
criticised incidentally in debate or upon any form of proceeding
c except a substantive motion. His authority in the chair is for-
tified by many special powers which are referred to below.
Confidence in the impartiality of the Speaker Is an indispen-
sable condition of the successful working of procedure, and
many conventions exist which have as their object not only to
ensure the impartiality of the Speaker but also to ensure that
D
' his impartiality is generally recognised ...... "

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

E M.N. Kaul and S.L. Shakdher in 'Practice and procedure of
•
Parliament' 4th Edition, say :

' "The all important ·conventional and ceremonial head of Lok
Sabha is the Speaker. Within the walls of the House his
authority is supreme. This authority is based on the Speaker's
F absolute and unvarying impartiality - the main feature of the
office, the law of its life. The obligation of impartiality appears
in the constitutional provision which ordains that the Speaker
is entitled to vote only in the case of equality of •votes.
Moreover, his impartiality within the House is secured by the
f;ict that he remains above all considerations of party or politi-
G
cal career, and to that effect he may also resign from the party
to which he belonged."

[p. 104]

H 46. It would, indeed, be unfair to the high traditions of that great
KIHOTO HOLWHAN v. ZACffiLLHU [VENKATACHALlAH, J.] 773

office to say that the investituri; in it of this jurisdiction would be vitiated A
for violation of a basic feature of democracy. It is inappropriate to express
distrust in the high office of the Speaker, merely because some of the
• Speakers are alleged, or even found, to have discharged their functions not
in keeping with the great traditions of that high office. The Robes of the
Speaker do change and elevate the man inside.
B
47. Accordingly, the contention that the vesting of adjudicatory func-
tions in the Speakers/Chairmen would by itself vitiate the provision on the
ground · of likelihood of political bias is unsound and is rejected. The
Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary
democracy and are guardians of the rights and privileges of the House. C
They are expected to and do take far reaching decisions iii the functioning
of Parliamentary democracy. Vestiture of power of adjudicate questions
under the Tenth Schedule in such a constitutional functionaries should
.be considered exceptionable.
. not.
48. Re : Contention H : D

In lhe view we take of the validity of paragraph 7 it is unnecessary
'
--' to pronounce on the contention whether judicial review is a basic feature
of the Constitution and paragraph 7 of the Tenth Schedule violates such
basic structure.
E
49. We may now notice one other contention as to the construction
of the expression 'any direction' occurrin,g in paragraph 2(1)(b). It is
argued that if the expression really attracts within its sweep every direction
or whip of any kind whatsoever it might be unduly restrictive of the
freedom of speech and the right of dissent and that, therefore, should be F
given a meaning limited to the objects and purposes of the Tenth Schedul~.
Learned counsel relied upon and commended to us the view taken by the
minority in the Full Bench decision of Punjab and Haryana High Court in
Patkash Singh Badal & Ors. v. Union of India & Ors., [AIR 1987 Punjab
and Haryana 263) where such a restricted sense was approved. Tewatia J. G
said:

"If the expression : "any direction" is to be literally construed
then it would make the people's representative a wholly politi-
cal party's representative, which decidedly he is not. The Mem-
ber would virtually lose his identity and would become a rubber H
774 SUPREME COURT REPORTS (1992] 1 S.C.R.

A stamp in the hands of his political party. Such interpretation of
this provision would cost it, its constitutionality, for in that sense
it would become destructive of democracy/parliamentary
democracy, which is the basic feature of the Constitution. Where
giving of narrow meaning and reading doWI) of the provision
can save it from the vice of unconstitutionality the Court should
B read it down particularly when it brings the provision in line
with the avowed legislative intent .............. "

" ................the purpose of enacting paragraph_ 2 could be no
other than to insure stability of the democratic system, which
c in the context of Cabinet/Parliamentary form of Government
on the one hand means that a political party or a coalition of
political parties which has been voted to power, is entitled to
govern till the next election, and on the other, that opposition
has a right to censure the functioning of the Government and
even overthrow it by voting it out of power if it had lost the
D confidence of the people, then voting or abstaining from voting
by a Me.mber contrary to any direction issued by his party would
~-
by necessary implication envisage voting or abstaining from
voting in regard to a motion or proposal, which if failed, as a
•
"ff;:.

result of lack or requisite support in the House, would result
E in voting the Government out of power, which consequence
necessarily follows due to well established constitutional con-
vention only when either a motion of no confidence is passed
I
by the House or it approves a cut-motion in budgetary grants.
Former because of the implications of Article 75(3) of the
Constitution and latter because no Government can function
F
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
G other matter that comes up before it"

[p. 313 & 314]

The reasoning of the learned judge tl:!at a wider meaning of the words
H "any direction" would 'cost it its cons.titutionality' does not commend to us.
KIHOTO HOLLOHAN v. ZACHILLHU [VENKATACHALIAH, J.] 775

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

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

Keeping in view the consequences of the disqualification i.e., ter-
mination of the membership of a House; it would be appropriate that the H
776 SUPREME COURT REPORTS (1992] 1 S.C.R.

A direction or whip which results in such disqualification under Paragraph
2(1)(b) is so worded as to clearly indicate that voting or abstaining from
voting contrary to the said direction would result in incurring the dis-
qualification under Paragraph 2(1)(b) of the Tenth Schedule so that th.e
member concerned has fore-knowledge of the consequences flowing from
his conduct in voting or abstaining from voting contrary to such a direction.
B
50. There arc some submissions as to the exact import of a "split· -
whether it is to be understood an instantaneous, one time event or whether
a "split" can be said to occur over a period of time. The hypothetical poser
was that if one-third of the members of a political party in the legislature
C broke-away from it on a particular day and a few m1>re members joined
the spliter group a couple of days later, would the latter also be a part of
the "split" group. This question of construction cannot be in vaccuo. In the
. present cases, we have dealt principally with constitutional issues. The
meaning to be given to "split" must necessarily be examined in a case in
D which the question arises in the context of its particular facts. No hypotheti-
cal predications can or need be made. We, accordingly, leave this question
open to be decided in an appropriate case.

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

The purpose of interlocutory orders is to preserve in status-quo the
G rights of the parties, so that, the proceeding~ do not become infructuous
by any unilateral overt acts by one side or the other during its pendency .
.One of the contentions urged was as to the invalidity of the amendment
for non-compliance with the proviso to Article 368(2) of the Constitution.
It has now been unanimously held that Paragraph 7 attracted the proviso
H to article 368(2). The interlocutory orders in this case were necessarily
K!HOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 777

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

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

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

The unanimous opinion according to the n1aj1..1rit~ as \\i'cll :1" thl:
minority is that para 7 qf the Tenth Schedule enact~ J pru\ isio11 1, ir
. complete exclusion of judicial review including the ju1 j,dic1 ion of the H
778 SUPREME COURT REPORTS· [1992] 1 S.C.R.

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

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

"For the reasons to be given in our detailed judgment to follow,
our operative conclusions in the minority opinion on the various
constitutional issues are as follows :
G
1. Para 7 of the Tenth Schedule, in clear terms and in effect,
excludes the jurisdiction of all courts, il)cluding the Supreme
Court under Article 136 and the High Courts under Articles
226 and 227 to entertain any challenge to the decision under
H para 6 on any ground even of illegality or perversity, not only
KIHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 779

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

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

3. In view of para 7 in the Bill resulting in the Constitution
(Fifty-Second Amendment) Act, 1985, it was required to be
ratified by the Legislature of not less than one-half of the States
as a condition precedent before the Bill could be presented to C
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 D
reach and, therefore, the so-called assent of the President was
non est and did not result in the Constitution standing amended
in accordance with the terms of the Bill.

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

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

6. Doctrine of Severability is not applicable to permit striking
down para 7 alone sa,1ng the remaining provisions of the Bill
making the Constitutional Amendment on the ground that para
7 alone attracts the proviso to clause (2) of Article 368. H
780 SUPREME COURT REPORTS [1992] 1 S.C.R.

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

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

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

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

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

G ll is unnecessary in this judgment to detail the facts giving rise to the
debate on the constitutional issues relating to the validity of the Tenth
Schedule, more particularly para 7 therein, introduced by the Constitution
(Fifty-Second Amendment) Act, 1985. Suffice it to say that these matters
arise out of certain actions of the Speakers of several Legislative As-
H semblics under the Tenth Schedule. Arguments on these questions were
KJHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 781

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

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

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

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

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

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

(F) Violation of basic feature of the Constitution, if any, by the Tenth
Schedule as a whole or any part thereof and its effect on the
constitut~onality for this reason. H
782 SUPREME COURT REPORTS (1992) 1 S.C.R.-

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

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

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

We consider it apposite in this context to recall the duty of the Court
m such delicate situations. This is best done by quoting Chief Justice 1
Marshall in Cohens v. Virginia, 6 Wheat 264, 404, 5 L.Ed. 257, 291 (1821],
H wherein he said :
KJHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 783

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

xxx xxx xxx
D

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

where the Supreme Court has assumed extensive powers of H
784 SUPREME COURT REPORTS [1992] 1 S.C.R.
>-
A reviewing legislative acts under cover of the widely interpreted
'due process' clause in the Fifth and Fourteenth Amendments.
If. then,. the courts in this country face up to such important and
none too easy task, it is not out ·of any desire to tilt at legislative
authority in a crnsader's spirit, but in discharge of a duty plainly
laid upon them by the Constitution. This is especially true as
B
regards the 'fundamental rights', as to which this court has been
assigned the role of a sentinel on the qui vive. While the Court
naturally attaches great weight to the legislative judgment, it
cannot desert its own duty to determine finally the con-
stitutionality of an impugned statute. We have ventltred 011 these
c obvious remarks because it appears. to have been suggested in
some quarters that the courts in the new set up are out to seek
clashes with the legislatures in the country."
(emphasis supplied)
We are in respectful agreement with the above statement of Sastri,
D CJ, and wish to add that even though such an obvious statement may have
been necessary soon after the Constitution came into force and may not be
a necessary reminder four decades later at this juncture, yet it appears ..,,.
apposite in the present context to clear the lingering doubts in some minds.
We have no hesitation in adding further that while we have no desire to
clutch at jurisdiction, at the same time we would not be deterred in the
E performance of this constitutional duty whenever the need arises.

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

H is also to be remembered that in our constitutional scheme based on
- "" KIHQTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 785

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

The Tenth Schedule was inserted in the Constitution of India by the
Constitution (Fifty-Second Amendment) Act. 1985 which came into force C
with effect from l.3.1985 and is popularly known as the Anti-Defection
Law. The Statement of Objects and Reasons says that this amendment in
the Constitution was made to combat the evil of political defections which
has become a matter of national concern and unless combated, is likely to
undermine the very foundations of our democratic system and the prin- D
ciplcs which sustained it. This amendment is, therefore, for outlawing
defection to sustain our democratic principles. The Tenth Schedule con-
tains eight paras. Para J is the interpretation clause defining 'House' to
mean either House of Parliament or the Legislative Assembly or, as the
case may he, either House of the Legislature of a State. The expressions
'legislature party' and 'original political party' which are used in the E
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
F
the Deputy Speaker of the House of the People or of the Legislative
Assembly of the Stale, the Deputy Chairman of the Council of States or
the Chairman or the Deputy Chairman of the Legislative Council of a State
from the applicability of the provisions of the Tenth Schedule. Para 8
contains the rule making power of the Chairman or the Speaker.
G
For the purpose of deciding the jurisdiction of this Court and the

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

... "6. Decision on questions as to disqualification of ground of defec- H
786

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

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

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

7. Bar of Jurisdiction on courts. -

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

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

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

H
say that all proceedings under sub-paragraph (1) 'shall be deemed to the
proceedings in Parliament ...... or, ...... proceedings in the Legislature of a
State' within the meaning of Article 122 or Article 212, as the case may be.
It was urged that the clear provision in para 6 that the decision of the
,.. -
..; KIHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 787

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

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

-~' in cluase .(1) of Articles 122 and 212 but not in clause (2) of either of these F
Articles, on account of which the scope of the fiction cannot be extended
beyond the limitation implicit in the specific words used in the legal fiction.
This being so, it was argued that immunity extended only to 'irregularity of
procedure' but not to illegality as held in Keshav Singh - [1965] 1 SCR 413. ·
In respect of para 7, the reply is that the expression 'no court' therein must
be similarly construed to refer only to the courts of ordiqary jurisdiction a
_, but not the extra-ordinary jurisdiction of the High Courts under Article
226 & 227 and the Plenary jurisdiction of Supreme Court under Article
136. It was also argued that the Speaker/Chairman while deciding the
'\ questidn of disqualification of member under para 6 exercises a judicial
function of the State which otherwise would be vested in the courts and, H
788 SUPREME COURT REPORTS (1992] 1 S.C.R.

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

The finality clause in sub-paragraph (1) of para 6 which says that the
B decision of the Chairman or, as the case may be, the Speaker of such House
shall be final is not decisive. It is settled that such a finality clause in a
statute by itself is not sufficient lo exclude the jurisdiction of the High
Courts under Articles 226 and 227 and the Supreme Court under Article
136 of the Constitution, the finality being for the statute alone. This is apart
c from the decision being vulnerable on the ground uf nullity. Accordingly,
sub-paragraph (1) alone is insufficient to exclude the extra-ordinary juris-
diction of the High Courts and the plenary jurisdiction of this Court. The
legal fiction in sub-paragraph (2) of para 6 can only bring the proceedings
under sub-paragraph (1) thereof within the ambit of clause (1) of Article
D 122 or clause (1) of Article 212, as the case may be, since the expressions
used in sub-paragraph (2) of para 6 of the Tenth Schedule are 'shall be
deemed to be proceedings in Parliament' or 'proceeedings in tile legislanire
of a State'. and such expressions find place both in Articles 122 and 212
only in clause (1) and not clause (2) thereof. The ambit of the legal fiction
must be confined to the !imitation implicit in the words used for creating
E the fiction and it cannot be given an extended meaning lo include therein
something in addition. It is also settled that a matter falling within the ambit
of clause (1) of either of these two Articles is justiciable on the ground of
illegality or perversity in spite of the immunity it enjoys to a challenge on
the ground of 'irregularity of procedure'.
~
F ' \.
To overcome this result, it was argued that such matter would fall
within the ambit of Clause (2) of both Articles 122 and 212 because the
consequence of the order of disqualification by the Speaker/Chairman
would relate to the conduct of business of the House. In the first place, the
two separate clauses in Articles 122 and 212 clearly imply that the meaning
G and scope of the two cannot be identical even assuming there be some
overlapping area between them. What is to be seen is the direct impact of '
the action and its true nature and not the further consequences flowing
therefrom. It cannot be doubted in view of the clear language or sub-
pargraph (2) of para 6 that it relates to clause (1) of hnth Articles 122 and
H 212 and the legal fiction cannot, therefore. he extendcJ hl'wnd the limits
KIHOTO HOLLORAN v. ZACHILLHU [VERMA, J.] 789

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

Moreover, it does appear to us that the decision relating to dis-
qualification of a member does not relate to regulating procedure or the C
conduct of business of the House provided for in clause (2) of Articles 122
and 212 and taking that view would amount to extending the fiction beyond
its language and importing another fiction for this purpose w'1ich is not
permissible. That being so, the matter falls within the ambit o.f Clause (1)
only of Articles 122 and 212 as a result of which it would be vulnerable on
the ground of illegality and perversity and, therefore, justiciable to that D
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 E
or perversity (see Keshav Singh - [1965] 1 SCR 413). This in our view is the
true construction and effect of para 6 of Tenth Schedule.

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

The words in para 7 of the Tenth Schedule are undoubtedly very wide F
and ordinarily mean that this provision supersedes any other provision in the
Constitution. This is clear from the use of the non obstante clause 'not-
withstanding anything in this Constitution' as the opening words of para 7.
The non obstante clause followed by the expression 'no court shall have any
jurisdiction' leave no doubt that the bar of jurisdiction of courts contained
in para 7 is complete excluding also the jurisdiction of the Supreme Court G
under Article 136 and that of the High Courts under Articles 226 and 227 of
the Constitution relating to matters covered by para 7. The question, there-
fore, is of the scope of para 7. The scope of para 7 for this purpose is to be
determined by the expression 'in respect of any matter connected with the
disqualification of a member of a House under this Schedule'. H
790 SUPREME COURT REPORTS (1992) 1 S.C.R.

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

sinq: it is contrary to the clear and unambiguous language of the provision. ~
1 '
The expression 'in respect of any matter connected with the disqualification
-....
of a member of a House under this Schedule' is wide enough to include
c not merely the intermediate stage of the proceedings relating to dis-
qualification but also the final order on the question of disqualification ~
j:.
made under para 6 which is undoubtedly such a matter. There is thus
express exclusion of all courts' jurisdiction even in respect of the final ..ii
order.
D
As earlier indicated by virtue of the finality clause and the deeming
provision in para 6, there is exclusion of all courts' jurisdiction to a
considerable extent leaving out only the area of justiciability on the ground
bf illegality or perversity which obviously is relatable only to the final order
E 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
F 136, 226 and 227. The language of para 7 being explicit, no other aid to.
construction is needed. Moreover, the speech of the Law Minister who
piloted the Bill in the Lok Sabha and that of the Prime Minist~r in the
Rajya Sabha as well as the debate on this subject clearly show that these
provisions were enacted to keep the entire ·matter relating to disqualifica-
G tion including the Speakers' final decision under para 6 on the question of
djsqualification, wholly outside the purview of all courts including the
Supreme Court and the High Courts. The legislative history of the absence
of such a provision excluding the courts' jurisdiction in the two earlier Bills
which lapsed also re-inforces the conclusion that enactment of para 7 was >-
H clearly to provide for total ouster of all courts' jurisdiction.
KJHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 791

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

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

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

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

Prima facie it would appear that para 7 does seek to make a change
in Articles 136, 226 and 227 of the Constitution inasmuch as without para
7 in the Tenth Schedule a•decision of the Speaker/Chairman would be F
amenable to the jurisdiction of the Supreme Court under Article 136 and
of the High Courts under Articles 226 and 227 as in the case of decisions
as to other disqualifications provided in clauses (1) of Article 102 or 191
by the President/Governor under Article 103 or 192 in accordance with the
opinion of the Election Commission which was the Scheme under the two
earlier Bills which lapsed. However, some learned counsel contended G
placing reliance on Sri Sankari Prasad Singh Deo v. Union of ll!dia and
State of Bihar, (1952] SCR 89 anJ Sajjan Singh v. Siate of Rajastlian, (1965]
1 SCR 933 that the effect of such total exclusion of the jurisdiction of the
Supreme Court and the High Courts does not make a change in Articles
136, 226 and 227. A close reading of these decisions indicates that instead H
792 SUPREME COURT REPORTS [1992] 1 S.C.R.

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

In Sankari Prasad, the challenge was to Articles 31A and 31B in-
serted in the Constitution by the Constitution (First Amendment) Act,
1951. One of the objections was based on absence of ratification under
Article 368. While rejecting this argument, the Constitution Bench held as
B under:-

"It will be seen that these Articles do not ei,ther in tem1s or i'l
effect seek to make any change in article 226 or in articles 132
and 136. Article 31A aims at saving laws providing for the
c compulsory acquisition by the State of a certain kind of proper-
ty from the operation of article 13 read with other relevant
articles in Part 111, while article 31B purports to validate certain
specified Acts and Regulations already passed, which, but for
such a provision, would be liable to be impugned under article
13. It is not correct to say that the powers of the High Court
D under article 226 to issue writs "for the enforcement of any of
the rights conferred by Part III" or of this Court under articles
132 and 136 to entertain appeals from orders issuing or refusing
such writs are in any way affected ..They remain just the same
as they were before : only a certain class of case has been
E excluded from the purview cif Part III and ti1e courts could no
longer interfere, not because their powers were Curtailed in any
n1anner or to any extend, but because there would be no occasion
hereafter for the exercise of their powers in such cases."

[emphasis supplied]
F
The test applied was whether the impugned provisions inserted by
the Constitutional Amendment did 'either in terms or in effect seek to
make any change in Article 226 or in Articles 132 and 136'. Thus the
change may be either in terms i.e. explicit or in effect in these Articles to
require ratification. The ground for rejection of the argument therein was
G that the remedy in the courts remained unimpaired and unaffected by the
change and the change was really by extinction of the right to seek the
remedy. In other words, the change was in the right and not the remedy of
approaching the court since there was no occasion to invoke the remedy,
the right itself being taken away. To the same effect is the decision in Sajjan
H Singh, wherein Sankari Prasad was followed stating clearly that there was
KIHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 793

no justification for reconsidering Sankari Prasad. A
Distinction has to be drawn between the abridgement or extinction
of a right and restriction of the remedy for enforcement of the right. If
there is an abridgement or extinction of· the right which results in the
disappearance of the cause of action which enables invoking the remedy B
and· in the absence of which there is no occasion to make a grievance and
invoke the subsisting remedy, then the change brought about is in the right
and not the remedy. To this situation, Sankari Prasad and Sajja11 Si11g/J
.X apply. On the other hand, if the right remains untouched so that a
grievance based thereon can arise and, therefore, the cause of action
subsists, but the remedy is curtailed or extinguished so that the cause of C
action cannot be enforced for want of that remedy, then the change made
• is in the remedy and not in the subsisting right. To this latter category,
Sa11kari Prasad and Sajja11 Si11g/I have no application. This is clear from the
above-quoted passage in Sa11kari Prasad which clearly brings out this
distinction between a change in the right and a change in the remedy.
D
The present case, in unequivocal terms, is that of destroying the
remedy by enacting para 7 in the Tenth Schedule making a total exclusion
of judicial review including that by the Supreme Court under Article 136
and the High Courts under Articles 226 and 227 of the Constitution. But
for para 7 which deals with the remedy and not the right, the jurisdiction E
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 F
right, since the question of disqualification of a member on the ground of
defection under the Tenth Schedule does required adjudication on enacted
principles, results in making a change in Article 136 in Chapter IV in Part
V and Articles 226 and 227 in Chapter V in Part VI of the Constitution.

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

Poini 'D' - Effect of absence of ratification H
794 SUPREME COURT REPORTS (1992] 1 S.C.R.

A The material part of Article 368 is as under :

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

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

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

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

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

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

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

(emphasis supplied)

It is clause (2) with its proviso which is material. The main part of ,
clause (2) prescribes that a constitutional amendment can be initiated only -
H by the introduction of a Bill for the purpose and when the Bill is passed
KJHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 795

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

The constituent power for amending the Constitution conferred by
Article 368 also prescribes the mandatory procedure in clause (2)_ including
its proviso, for its exercise. The constituent power cannot, therefore, be
exercised in any other manner and non-compliance of the special proce- H
796 SUPREME COURT REPORTS (1992] 1 S_.C.R.

A dure so prescribed in Article 368 (2) cannot bring about the result of the
Constitution standing amended in accordance with the terms of the Bill
since that result ensues only at the end of the prescribed mandatory
procedure and not otherwise. The substantive part of Article 368 which
provides for the resultant amendment' is the consequence of strict com-
pliance of the mandatory special procedure prescribed for exercise of the
B 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
C was indicated in Kesavananda Bharati [1973] Supp. SCR 1 at pp. 561, 563
& 565:

"....... Under Article 368 However, a different and special proce-
dure is provided for amending the constitution. A Bill has to be
D introduced in either House of Parliament and must be passed
by each House separately by a special majority. It should be
passed not only by 2/3rds majority of the members present and
voting but also by a majority of the total strength of the House.
No joint sitting of the two Houses is permissible. In the case
of certain provisions of the Constitution which directly or
E indirectly affect interstate relations, the proposed amendment
is required to be ratified by the Legislatures which is not a
legislative process of not less than one half of the States before
the Bill proposing the amendment is presented to the President
for his assent. Tlte procedure is special in the sense that it is
F different and more exacting or restrictive than the one by which
ordinal)' laws are niade by Parlianient. Secondly in certain 1nat-
ters the State Legislatures are ·involved in the process of making
the amendn!el!t. Such partnership between the Parliament and
the State Legislatures in making their own laws by the ordinary
procedure is not recognised by the Constitution. It follows from
G the special provision made in Article 368 for the amendment of
the Constitution that our Constitution is a 'rigid' or 'controlled'
constitution because tlie Constituent Assembly has "left a special
direction as to how the constitution is to. be changed. In view of
Article 368, when the special procedure is successfully followed,
H the proposed amendment automatically becomes a part of the
KIHOTO HOLLORAN v. ZACHILLHU [VERMA, J.] 797

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

xxx xxx xxx

" ...... But when it comes to the. amendment of the constitutio11, a
special procedure has been prescribed in Article 368. Since the B
result of following the special procedure under the Article is the
amendment of the co11stitution the process which brings about
_X the result is known as the exercise of co11stituent power by the
bodies associated in the task of the ame11di11g the constitution. It
is, therefore, obvious, that when the Parliament and the State C
Legislatures function in accordance with Article 368 with a view
to amend the constitution, they exercise constituent power as
distinct from their ordinary legislative power under Articles 245
to 248. Article 368 is not e11tirely proced!lral. Undo!lbtedly part
of it is proced!lral. But there is a clear ma11date that on the
procedure bei11gfol/owed the 'proposed amendment shall become D
part of the co11stitutio11, which is the s!lbstalltive part of Article
368. Therefore, the peculiar or spe~ial powe1 to gn1end the con-
stitution- is to be sought in Article 368 only and not elsewhere. "

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

Apart from the unequivocal language of clause (2) including the
proviso therein indicating the above result of prior ratification being a part
of the special procedure or condition precedent for valid assent of the
President, the same result is reached even by another route. The ordinary G
role of a proviso is to carve out an exception from the general rule in the
main enacting part. The main enacting part of clause (2) lays down that on
a Bill for a constitutional amendment being passed in each House by a
requisite majority, it shall be presented to the President for his assent and
on the assent being given, the Constitution shall stand amended in accord- H
798 SUPREME COURT REPORTS (1992) 1 S.C.R.

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

Th,us the requirement of prior ratification by the State Legislatures
F
is not only a condition precedent forming part of the special mandatory
procedure for" exercise of the constituent power and a constitutional limita-
tion thereon but also a requirement carving out an exception to the general
rule of automatic amendment of the Constitution on the President's assent
to the Bill.
G
Iii other words, clause (2) with the proviso therein itself lays down
that the President's assent does not result in automatic amendment of the
Constitution in case of such a Bill it was not duly ratified before presenta-
tion to the President for his assent. Nothing more is needed to show that·
H not only para 7 of the Tenth Schedule but the entire Constitution (Fifty-
KIHOTO HOLLORAN v. ZACHILLHU [VERMA, J,] 799

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

The result achieved in each case is the same irrespective of the ·route
taken. If the route chosen is for construing the language of clause (2) with
the proviso merely a part of it, the requirement or prior ratification is a B
condition precedent forming part of the special mandatory procedure·
providing that the constituent power in case of such a Bill can be exercised
in this manner alone, the mode prescribed for other Bills being-forbidden.
If the route taken is of treating the proviso•as carving out an exception
from the general rule which is the normal role of a proviso, then the result C
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 D
seeks to· make a change in Article ·136 which is a part of Chapter IV of
Part V and Articles 226 and 227 which form part of Chapter V of Part VI
of t\le Constitution, has not been enacted by incorporation in a Bill seeking
to make the Constitutional Amendment in the manner prescribed by clause
(2) read with the proviso threin of Article 368. Para 7 of the Tenth E
Schedule is, .therefore, unconstitutional and to that extent at least the
Constitution does not stand amended in accordance with the Bill seeking
to make the Constitutional Amendment. The further question now is: its
effect on the validity of the remaining part ·or the Tenth Schedule and
consequently the Constitution (Fifty-Second Amendment) Act, 1985 itself.
F
Point 'E' - Severability of para 7 of Tenth Schedule

The effect of absence of ratification indicated above suggests inap-
plicability of the Doctrine of Severability. In our opinion, it is not para 7
alone but the entire Tenth Schedule may the Constitution (Fifty-Second . G
Amendment) Act, 1985 itself which is rendered unconstitutional being an
abortive attempt to so amend the Constitution. It is ihe entire Bill and not
merely para 7 of the Tenth Schedule therein which required prior ratifica-
tion by the State Legislatures before its presentation to the President for
his assent, it being a joint exercise by the Parliament and State Legislatures.
The stage for presentation of Bill to the President for his assent not having H
800 SUPREME COURT REPORTS [1992] 1 S.C.R.

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

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

The Doctrine of Severability applies in a case where an otherwise
vali~ly enacted legislation contains a provision suffering from a defect of
.D lack of legislative competence and the invalid provision is severable leaving
the remaining valid provisions a viable whole. This doctrine has no applica-
tion where the legislation is not validly enacted due to non-compliance of
the mandatory legislative procedure such as the mandatory special proce-
dure prescribed for exercise of the constituent power. It is not possible to
E 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
F of a condition precedent forming part of the special procedure and the
role of a proviso and results in rewriting the proviso to mean that ratifica-
tion is not a condition precedent but merely an additional requirement of
such a Bill to make that part. effective. This also fouls with the expression
'Constitution shall stand amended ... .' on the assent of President which is
G after the stage when the amendment has been made and ratified by the
State Legislatures as provided. The historical background of drafting the
proviso also indicates the significance attached lo prior ratification as a
condition precedent for valid exercise of the constituent power.

We are unable to read the Privy Council decision in The Bribery
H Commissioner v. Pedrick Ranasinghe [1965] AC 172 as an authority to
KIHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 801

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

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

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

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

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

"A Bill, within the scope of sub-section (6) of section 7A, which
received lhe Royal Assent without having been approved by H
802 SUPREME COURT REPORTS (1992) 1 S.C.R.

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

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

E Apart from inapplicability of the Doctrine of Severability to a Bill to
which the proviso to clause (2) of Article 368 applies, for the reasons given,
it does not apply in the present case to strike down para 7 alone retaining
the remaining part of the Tenth Schedule. In the first place, the discipline
for exercise of the constituent power was consciously and deliberately
p. adopted instead of resorting to the mode of ordinary legislation in accord-
ance with sub-clause (e) of clause (1) of Articles 102 and 191, which would
render the decision on the question of disqualification on the ground of
defection also amenable to judicial review as in the case of decision on
questions relating to other disqualifications. Moreover, even the test ap-
plicable for applying the Doctrine of Severability to ordinary legislation as
G summarised 'in R.M.D. Chamarbaughwalla v. nie Union of India, (1957)
S.C.R. 930, indicates that para 7 alone is not severable to permit retention
of the remaining part of the Tenth Schedule as valid legislation. The settled
. test whether the enactment would have been made without para 7 indicates
that the legislative intenf was to make the enactment only with para 7
H therein and not without it. This intention is manifest throughout and
KIHOTO HOLLOHAN v. ZACHILLHU [VERMA, J.] 803

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

Point 'F' - Violation of basic features

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

Democracy is a part of the basic structure of our Constitutioin; and
rule of law, and free and fair elections are basic features of democracy.
One of the postulates of free and fair elections is provision for resolution
of election disputes as also adjudication of disputes relating to subsequent F
disqualificationsby an independent authority. It is only by a fair adjudica-
tion of such disputes relating to validity of electrons and subsequent
disqualifications of members that true reflection of the electoral mandate
and governance by rule of law essential for democracy can be ensured. In
the democratic pattern adopted in our Constitution, not only the resolution
of election dispute is entrusted to a judicial tribunal, but even the decision G
on questions as to disqualifcation of members under Articles 103 and 192
is by the President/Governor in accordance with the ouinion of the Elec-
tion Commission. The constitutional scheme, therefore, for decision on
questions as to disqualification of members after being duly elected, con-
templates adjudication of such disputes by an· indepel!dent authority out- H
804 SUPREME COURT REPORTS (1992) 1 S.C.R.

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

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

The Speaker being an authority within the House and his tenure
being dependent o~ the will of the majority therein, likelihood of suspicion
of bias could not be ruled out. The question as to disqualification of a
H member has adjudicatory disposition and, therefore, requires the decision
KIHOTO HOLLORAN v. ZACHILLHU [VERMA, J.] 805
...
to be rendered in consonance with the scheme for adjudication of disputes. A
Rule of law has in it firmly entrenched, natural justice, of which, rule
against Bias is a necessary concomitant; and basic .postulates of Rule
against B_ias are; Nemo judex in causa sua - 'A Judge is disqualified from
determining any case in which he may be, or may fairly be suspected to be,
biased'; and 'it is of fundamental importance that justice should not only
be done, but should manifestly and undoubtedly be seen to be done.' This
B
appears to be the underlying principle adopted by the framers of the
Constitution in not designating the Speaker as the authority to decide
_x election "disputes and questions -as to disqualification of members under
Artides 103, 192 and 329 and opting for an independent authority outside
the House. The framers of the Constitution had in this manner kept the c
office of the Speaker away from this controversy. There is nothig unusual
in this scheme if we bear in mind that the final authority for removal of a
Judge of the Supreme Court and High Court its outside the judiciary in
the Parliament under Article 124(4). On the same principle the authority
rt to decide the question of disqualification of a member of legislature is
D
outside the House as envisaged by Articles 103 and 192.
-._., .Jn the Tenth Schedule, the Speaker is made not only the sole but the
final arbiter of such dispute with no provision for any appeal or revision
against the Speaker's decision to any independent outside authority. This
departure in the Tenth Schedule is a reverse trend and violates a basic E
feature of the Constitution sine~ the Speaker cannot be treated as an
authority contemplated for being entrusted with this function by the basic
postulates of the Constitution, notwithstanding the great dignity attaching
to that office with the attribute of impartiality.
.....
,. F
It is the Vice-President of India who is ex-officio Chairman of the
Rajya Sabha and his position, being akin to that of the President of India,
is different from that of the Speaker. Nothing said herein relating to the
office of the Speaker applies to the Chairman of the Rajya Sabha, that is,
the Vice-President of India. However, the only authority named for the Lok
Sabha and the Legislative Assell)blies is the Speaker of the House and G
.
-, entrustment of this adjudicatory function fouls with the constitutional
scheme and, therefore, violates a basic feature of the Constitution. Remain-
ing part of the Tenth Schedule also is rendered invalid notwithstanding the
... fact that this defect would not ,apply to the Rajya Sabha alone whose
Chairman is the Vice- President of India, since the Tenth Schedule be- H
806 SUPREME COURT REPORTS (1992] 1 S.C.R. ,..
A comes unworkable for the Lok Sabha and the State Legislatlires. The
staturory exception of Doctrine of Necessity has no application since
designation of authority in the Tenth Schedule is made ·by choice while
enacting the legislation instead of adopting the other available options.

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

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

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

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

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