power but of constituent Dower and, therefore, an amendment of the Constitution is not law at all as contemplated by Art. 13(2). I. am reminded of the. words of. Justice Holmes that "we ,must think- things and not words". The true principle is that if there are two provisions in the Constitution which seem to be hostile, juridical hermeneutics requires the Court to interpret them by combining them and not by destroying one with the aid of the other. No part in a Constitution is superior to another part unless the Constitution itself says so and there is no accession 'of strength to any provision by calling it a code. Portalis, the great. French Jurist .(who helped in the making of the Code Napole on) supplied the correct principle when he said that it is the context of the legal provisions which serves to illustrate the meaning. of the different parts, so that among them and between them there should be correspondence and harmony.

We have two provisions to reconcile. Article 368 which says that the Constitution may be amended by, following this and this. procedure, and Art. 13(2) which says, the State shall not make any law which takes away or abridges the rights conferred by Part III and that any law made in contravention of the clause shall, to the extent of the contravention, be void. The question, therefore, is : does- this create any limitation upon the amending process ? On the answer to this question depends the solution of all the problems in this case.

It is an error to view our Constitution as if it were a mere organisational document by which the people established the atructure and the mechanism of their Government. Our Constitution is intended to be much more because it aims at being a social document In which the relationship of society to the indiVidual and of Government to both and the rights of the minorities and the backward classes are clearly laid down. This social document is headed by a Preamble* which epitomizes the principles on which the Government is intended to function and these principles are later expanded into Fundamental Rights in Part III and the Directive Principles of Policy in Part TV. The former 'are protected but the latter are not. The former represent the "PREAMBLE WE THE PEOPLE OF INDIA having solemnly Resolved to .constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure all Its citizens:

JUSTICE, social, economic and political;

EQUALITY of status and of opportunity; and to promote among them.all

FRATERNITY assuring the, dignity of the individual and.the unity of

Nation:

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November,1949,do HEREBY ADOPT,ENACT AND GIVE TO OURSELVES THIS CONSTffUTION."

859

limits of State action and the latter are the obligations and the duties of the Government as a good and social Government.

Why was it necessary to have the Fundamental Rights at all and make them justiciable ? As we seem to be forgetting our own history so soon let me say that the answer lies there the Nationalist Movement and the birth of the Indian National Congm in 1885 were the direct result of the discriminatory treatment of the Indians in their own country. The demand for the guarantee of Fundamental Rights had unfortunately to be made. then to a foreign ruler and it appeared in the Constitution of India Bill framed by the Indian National Congress ten years later. All that is valuable to an Individual in civilized society, including free speech, imprisonment only by a competent authority, free law education, etc. were claimed therein. Resolutions of the Congress since then reiterated this demand and the securing of Fundamental Rights in any future Constitution became one of the articles of faith. To cut the narration short, the main steps may only be mentioned. Mrs. Besant's Commonwealth of India Bill 1925 with its seven fundamental rights (the precursor of Art. 19), the Madras Congress Resolution of 1927--"a constitution on the basis of declaration of rights"-- the Nehru Report--it is obviour, that our first care should be to have the Fundamental Rights guaranteed in a manner which will not permit their withdrawal in any circumstancees--, the draft article in the Nehru Constitution "No person shall be deprived of his liberty, nor shall his dwelling or property be entered, requisitioned or confiscated save in accordance with law"-, the Independence Resolution of 26th January, 1930--We believe that it is the inalienable right of the Indian people, as of any other people, to have freedom and to enjoy the fruits of their toil and have the necessities of life, so that they may have full opportunities of growth" the Karachi Resolution on Fundamental Rights, Economic and Social Change (1931), the Sapru Report (1945) which for the first time distinguished between justiciable and non- ,justiciable rights, the Suggestion of the Cabinet Mission for the constitution of an Advisory Committee on Fundamental and Minority Rights, and, lastly the Committee on Fundamental Rights of the Constituent Assembly, are just a few of the steps to be remembered. The Fundamental Rights and the Directive Principles were the result. Fundamental laws are needed to make a Government of laws and not of men and the Directive Principles are needed to lay down the objectives of a good Government. Our Constitution was not the cause but the result of political and personal freedom". Since Dicey had said that "the proclamation . in a Constitution or Charter of the right to personal freedom, or indeed of any other right, gives of itself but slight security that the right has more than a

860

nominal existence",(1) provision had to be made for guaranteeing them andto make them justiciable and enforceable. This result is reachedby means of Arts. 12, 13, 32, 136, 141, 144 and 226. The The High Courts and finally this Court have been made the Judges of whether any legislative or executive action on the part oft the State considered as comprehensively as is possible, offends the Fundamental Rights and Art. 13(2) declares that legislation which so offends is to be deemed to be void. It is thus that Parliament cannot today abridge or take away a single Fundamental Right even by a 'unanimous vote in both the Chambers. But on the argument of the State it has only 'to change the title of the same Act to an Amendment of the Constitution Act and then a majority of the total strength and a 2/3rds majority of the members present and voting in each House may remove not only any of the Fundamental Rights, but the whole Chapter giving them. And this is said to be possible because of Art. 368 and its general language which, it is claimed, makes no exception in its text and, therefore, no exception can be implied. It is obvious that if an Act amending the Constitution is- treated as a law it must also be subject to the provisions of Art. 13(2). Since the definition of the word 'law', makes no exception a strenuous eeffort is made on the basis of argument and authority to establish that a constituent power does not result in a law in the ordinary sense. Distinction is thus made between laws made ordinarily that is to say, from day to day by ordinary majority and laws made occasionally for the amendment of the Constitution by a slightly enhanced majority. In our Constitution this distinction is not valid in the eye of Art. 13(2).

It is not essential,, of course, that a difference must always exist in the procedure for the exercise of constituent and ordinary, legislative power. One has not to go far to find the example of a country in which constitutional law as such may be made by the same agency which makes ordinary laws. The most outstanding, example is that of England about which de Tocqueville observed. "the Parliament has an acknowledged right to modify the Constitution; as, therefore, the Constitution may undergo perpetual changes, it does not in reality exist; the Parliament is at once a legislative and a constituent assembly:"(2)

of course, the dictum of de Tocqueville that the English Constitution "elle n'existe point" (it does not exist) is far from accu-

(1)Dicey: "Law of the Constitution" 10th Edn. p. 207. (2)Introduction to the Study of the Law of the Constitution A.V. Dicey Tenth Edn p. 88 quoting from OEuvres completes (14th ed.,1864) (Democratie en Amerique), pp. 166, 167. 861

rate. There is a vast body of constitutional laws in England which is written and statutory but it is not all found in one place and arranged as a written Constitution usually is. The Act of Settlement (1701), the Act of Union with Scotland (1707), the Act of Union with Ireland (1800) the Parliament Act (1911) the Representation of the Peoples Acts of 1832, 1867, 1884, 1918, 1928 and 1948, the Ballot Act (1872), the Judicature Acts 1873, 1875 and 1925, the Incitement to Disaffection Act (1934), His Majesty's Declaration of Abdication Act (1936), the Regency Act (1937) and the various Acts setting up different ministries are examples of what will pass for constitutional law under our system(1). The Bill of Rights (1689) lays down the fundamental rule in England that taxation may not be levied without the consent of Parliament which in our Constitution has its counterpart in Art. 265. In our Constitution also the laws relating to delimitation of constituencies or allotment of seats to such constituencies made or purporting to be made under Art. 327 or Art. 328, by reason of the exclusion of the powers of the courts to question them, are rendered constitutional instruments. Other examples of constitutions which, in addition to constitution proper, contain certain ordinary legislation, having constitutional qualities, also exist. (2)

What then is the real distinction between ordinary law and the law made in the exercise of constituent power? I would say under the scheme of our Constitution none at all. This distinction has been attempted to be worked out by several authors. It is not necessary to quote them. Taking the results obtained by Willoughby(3) it may be said that the fact that a Constitution is written as a Constitution is no distinction because in Britain constitutional law is of both kinds and both parts coexist. The test that the Constitution requires a different kind of procedure for amendment, also fails because in Britain Parliament by a simple majority makes laws and also amends constitutional statutes. In our Constitution too, in spite of the claim that Art. 368 is a code (whatever is meant by the word ,code, here), Arts. 4, 11 and 169 show that the amendment of the Constitution can be by the ordinary law making procedure. By this method one of the legislative limbs in a State can be removed or created. 'This destroys at one stroke the claim that Art. 368 is a code arid also that any special method of amendment of the Constitution is fundamentally necessary.

(1) The list is raken from K. C. Wheare's: "The Statute of Westminster and Dominion Status" (4th Edn) p. 8. Dicey and others give different list.

(2) See Constitutions of Austria, Honduras, Nicaragua Peru, Spain and Sweden among others. The Constitution of Spain, in particular is in several Instruments. The Constitution of Austria (A-t. 149) makes special mention of these constitutional instruments.

(3) Tagore Law Lectures (1924) p. 83.

862

The next test that the courts must apply the Constitution in preference to the ordinary law may also be rejected on the ansalogy of the British practice. There, every statute has equal standing. Therefore, the only difference can be said to arise from the fact that.constitutional laws are generally amendable under a process which in varying degrees, is more difficult or elaborate. This may give a distinct character to the law of the Constitution but it does not serve to distinguish it from the other laws of the land for purposes of Art. 13(2). Another difference is that in the written constitutions the form and power of Government alone are to be found and not rules of private law as is the case with ordinary laws. But this is also not an invariable rule. The Ame Constitution and our Constitution itself are outstanding examples There are certain other differences of degree, such as that nary _legislation may be tentative or temporary, more detailed or secondary, while the Constitution is intended to be permanent, general and primary. Because it creates limitations on the ordinary legislative power, constitutional law in a sense is fundamental law, but if the legislative and constituent processes can become one, Ls there any reason why the result should be regarded as law in the one case and not in the other ? On the whole, therefore, as observed in the American Jurisprudence

"It should be noticed however that a statute and a constitution, though of unequal dignity are both laws and each rests on the will of the people........"

A Constitution is law which is intended to be, for all time and is difficult to change so that it may not be subject to "impulses ofmajority" "temporary excitement and popular caprice or passion"(2).

I agree with the authors cited before us that the power of amendment must be possessed by the State. I do not take a narrow view of the word "amendment" as including only minor changes within the general framework. By an amendment new matter may be added, old matter removed or altered. I alm concede that the reason for the amendment of the Constitution is a political matter although I do not go as far as some Justice of the Supreme court of the United States did in Coleman v. Miller(3) that the whole process is "political in its entirely from submission until an Amendment becomes part of the Constitution and is not subject to judicial guidance, control or interference at any point." There are fundamental differences between our Con- (1) American Jurispruence Vol. II Section 3. (2) Amendment is expressly called a legislative process in the Constitutions of Colombia:, Costa Rica, Hungary, Panama and Peru.. In Portugal the ordinary legislatures enjoy constituent powers every 10 years.

(3) 3)7 U.S. 443 (83 L. Ed. 1385).

863

stitution and the Constitution of the United States of America.. Indeed this: dictum of the four Justices based upon, the case of Luther v. Borden(1) has lost some of its force after Baker v. Carr(2)

A Republic must, as says Story, (8) possess the means for altering and improving the fabric of the Government so as, to promote the happiness and safety of the people. The power is also needed to disarm opposition and prevent factions over the Constitution. The power, however, is not intended to be used for experiments or as an escape from restrictions against undue state action enacted in the Constitution itself. Nor %'LS the power of amendment available for the purpose of removing express or fmplied restrictions against the State.

Here I make a difference between Government and State which I shall explain presently. As Willoughby(4) points out constitutional law ordinarily limits Government but not the State because a constitutional law is the creation of the State for its own purpose. But there is nothing to prevent the State from limiting itself. The rights and duties of the individual and the manner in which such rights are to be exercised and enforced ;ire ordinarily to be found in the laws though some of the Constitutions also fix them. It is now customary to have such rights guaranteed in the Constitution. Peaslee,(5) writing in 1956 says that about 88% of the national Constitutions contain clauses respecting individual liberty and fair legal process; 83% respecting freedom of speech and the press; 82% respecting property right; 80% respecting rights of assembly and association; 80% respecting rights of conscience and religion; 79% res- pecting secrecy of correspondence and inviolability of domi- cile; 78% respecting education; 73% respecting equality 64% respecting right to petition; 56% respecting labour; 51% respecting social security; 47% respecting rights of movement within, and to and from the nation; 47% respecting health and motherhood; and 35% respecting the non- retroactivity of laws. In some of the Constitutions there is an attempt to put a restriction against the State seeking to whittle down the rights conferred on the individual. Our Constitution is the most outstanding example of this restriction which is to be found in Art. 13(2). 'The State is no doubt legally supreme but in the supremacy of its powers it may create, impediments on its own sovereignty. Government is always bound by the restrictions created in favour of fundamental Rights but the State may or may not be. Amendment may be open to the State according to the procedure laid

Broadly speaking amendments can be made by four methods (i) by ordinary legislative process with or without restrictions, (ii) by the people through, referendum, (iii) by majority of all the units of a federal State; and (iv) by a special convention. The first method can be in four different ways, namely, (i) by the ordinary course of legislation by absolute majority or by special majority, (See Section 92 (1 )- of the British North America Act, sub-section 152 South African Apt, where under except sections 35, 137 and 152, other provisions could be amended by ordinary legislative process by absolute majority. Many constitutions provide for special majorities.); (ii) by a fixed quorum of members for the consideration of the proposed amendment and a special majority for its passage; (see the defunct Constitution of Rumania), (iii) by dissolution and general election on a particular issue; (see the Constitutions of Belgium, Holland, Denmark and Norway), and (iv) by a majority of two Houses of Parliament in joint session as in the Constitution of the South Africa. The second method demands a popular vote, referendum , or plebiscite as in Switzerland, Australia, Ireland, Italy, France and Denmark. The third method is by an agreement in some form or other of either of the majority or of all the federating units as in Switzerland, Australia and the United States of America. The fourth method is generally by creation of a special body ad hoc for the purpose of constitution revision as in Latin America. Lastly, some constitutions impose express limitation on the power to amend. (See Art. 5 of the United States Constitution and the Constitution of the Fourth French Republic). A more elaborate discussion of this topic may be found in the American political Constitution by Strong. It will, therefore, be seen that the power to amend and the procedure to amend radically-differ from State to State; it is left to the constitution-makers to prescribe the scope of the power and the method of amendment having regard to the requirements of the particular State. There is no article in any of the constitutions referred to us similar to article 13(2) of our Constitution. India adopted a different system altogether: it empowered the Parliament to amend the Constitution by the legislative process subject to fundamental rights. The Indian 1 Constitution has made the amending process comparatively flexible, but it is made subject to fundamental rights.

Now let us consider the argument that the power to amend is a sovereign power, that the said power is supreme to the legislative power, that it does not permit any implied limitations and that amendments made in exercise of that power involve political questions and that, therefore, they are outside judicial review, This wide proposition is sought to be supported on the basis of opinions of jurists and judicial decisions. Long extracts have been read to us from the book "The Amending of the Federal Constitution (1942)" by Lester Bernhardt Orfield, and particular reference was made to the following passages :

"At the point it may be well to note that when the Congress is engaged in the amending process it is not legislating. It is exercising a peculiar power bestowed upon it by Article Five. This Article for the most part ,controls the process; and other provisions of the Constitution, such as those relating to the passage of legislation, having but little bearing."

Adverting to the Bill of Rights, the learned author remarks that they may be repealed just as any other amendment and that they are no more sacred from a legal standpoint than any other part of the Constitution. Dealing with the doctrine of implied limitations, he says that it is clearly untenable. Posing the question 'Is other a law about the amending power of the Constitution ?", he answers, "there is none". He would even go to the extent of saying that the sovereignty, if it can be said to exist at all, is located in the amending body. The author is certainly a strong advocate of the supremacy of the amending power and an opponent of the doctrine of implied limitations. His opinion is based upon the terms of Art. 5 of the Constitution of the United States of America and his interpretation of the decisions of the Supreme Court of America. Even such an extreme exponent of the doctrine does not say that a particular constitution cannot expressly impore restrictions on the power to amend or that a court cannot reconcile the articles couched in unlimited phraseology. Indeed Art. 5 of the American Constitution imposes express limitations on the amending power. Some passages from the book "Political Science and Government" by James Wilford Garner are cited. Garner points out : "An unamendable constitution, said Mulford, is the &&worst tyranny of time, or rather the very tyranny of time"

But he also notices

"The provision for amendment should be neither so rigid as to make needed changes practically impossible nor so flexible as to encourage frequent and unnecessary changes and thereby lower the authority of the Constitution."

Munro in his book "The Government of the United States", 5th Edition, uses strong words when he says "....... it is impossible to conceive of an unamendable constitution as anything but a contradiction in terms."

The learned author says that such a constitution would constitute "government by the graveyards." Hugh Evander Wills in his book "Constitutional Law of the United States" avers that the doctrine of amendability of the Constitution is grounded in the doctrine of the sovereignty of the people and that it has no such implied limitations as that an amendment shall not contain a new grant of power or change the dual form of government or change the protection of the Bill of Rights, or make any other change in the Constitution. Herman Finer in his book "The Theory and Practice of Modem Government" defines "constitution" as its process of amendment, for, in his view, to amend is to deconstitute and reconstitute. The learned author concludes that the amending clause is so fundamental to a constitution that he is tempted to call it the constitution itself. But the learned author recognizes that difficulty in amendment certainly products circumstances and makes impossible the surreptitious abrogation of rights guaranteed in the constitution. William S. Livingston in "Federalism and Constitutional Change" says :

"The formal procedure of amendment is of greater importance than the informal processes, because it constitutes a higher authority to which appeal lies on any question that may arise."

But there are equally eminent authors who express a different view. In "American Jurisprudence", 2nd Edition, Vol. 16, it is stated that a statute and a constitution though of unequal dignity are both laws. Another calls the constitution of a State as one of the laws of the State. Cooley in his book on "Constitutional Law" opines that changes in the fundamental laws of the State must be indicated by the people themselves. He further implies limitations to the amending power from the belief in the constitution itself, such as, the republican form of Government cannot be abolished as it would be revolutionary in ifs characters. In the same book it is further said that the power to amend the constitution by legislative action does not confer the power to break it any more than it confers the power to legislate on any other subject contrary to the prohibitions. C. F. Strong in his book "Modem Poliical Constitutions", 1963 edition, does not accept the theory of absolute sovereignty of the amending power which does not brook any limitations, for he says. 802

"In short, it attempts to arrange for the recreation of a constituent assembly whenever such matters are in future to be considered, even though that assembly be nothing more than the ordinary legislature acting under certain restrictions. At the same time, there may be some elements of the constitution which the constituent assembly wants to remain unalterable by the action of any authority whatsoever. These elements are to be distinguished from the rest, and generally come under the heading of fundamental law. Thus, for example, the American Constitution, the oldest of the existing Constitutions, asserts that by no process of amendment shall any State, without its own consent, be deprived of its equal suffrage in the Senate, , while among the Constitutions more recently promulgated, those of the Republics of; France and Italy, each containing a clause stating that the republican form of government cannot be the subject of an amending proposals"

it is not necessary to multiply citations from text-books. A catena of American decisions have been cited before us in support of the contention that the unending power is a supreme power or that it involves political issues which are not justiciable. It would be futile to consider them. at length, for after going through them carefully we find that there are no considered judgments of the American Courts, which would have a persuasive effect in that regard. In the Constitution of the United States of America, prepared by Edwards S. Corwin, Legislative Reference Service, Library of Congress, (1953 edn.), the following summary under the heading "Judicial Review under Article V" is given : "Prior to 1939, the Supreme Court had taken cognizance of a number of diverse objections to the validity of specific amendments. Apart from holding that official notice of ratification by the several States was con- clusive upon the Courts, it had treated these questions as justiciable, although it had uniformly rejected them on the merits. In that year, however, the whole subject was thrown into confusion by the inconclusive decision in Coleman v. Miller. This case came up on a writ of certiorari to the Supreme Court of Kansas to review the denial of a writ of mandamus to compel the Secretary of the Kansas Senate to erase an endorsement on a resolution ratifying the child

labour amendment to the Constitution to re- effect that it had been adopted by the Kansas Senate. The attempted ratification was assailed on three grounds : (1) that the amendment had been previously rejected by the State Legislature; (2) that it was no longer open to ratification because an unreasonable period of time thirteen years, had elapsed since its submission to the States, and (3) that the lieutenant governor had no right to cast the deciding vote in the Senate in favour of ratification. Four opinions were written in the Supreme Court, no one of which commanded the support of more than four mem- bers of the Court. The majority ruled that the plain-tiffs, members of the Kansas State Senate, had a sufficient interest in the controversy to give the federal courts jurisdiction to review the case. Without agreement as to the grounds for their decision, a different majority affirmed the judgment of the Kansas court denying the relief sought. Four members who concur-red in the result had voted to dismiss the writ on the ground that the amending process "is political" in its. entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point." whether the contention that the lieutenant governor should have been permitted to cast the deciding vote in favour of ratification presented a justiciable controversy was left undecided, the court being equally divided on the point. In an opinion reported as "the opinion of the Court"' but in which it appears that only three Justices concurred, Chief Justice Hughes declared that the writ of' mandamus was properly denied because the question as to the effect of the previous rejection of the amendment and the lapse of time since it was submitted to the States were political questions which should be left to Congress. On the same day, the Court dismissed a. writ of certiorari to review a decision 'of the Kentucky Court of Appeals declaring the action of the Kentucky General Assembly purporting to ratifying the child labour amendment illegal and void. Inasmuch as the governor had forwarded the certified copy of the resolution to the Secretary of State before being served with a copy of the restraining order issued by the State Court, the Supreme Court found that there 'was no longer a controversy susceptible of judicial determination."

This passage, in our view, correctly summarises the American law on the subject. It will be clear therefrom that prior to 1939 the Supreme Court of America had treated the objections to the validity of specific amendments as justiciable and that only in 1939 it rejected them in an inconclusive judgment without discussion. In this state of affairs we cannot usefully draw much from the judicial wisdom of the Judges of the Supreme Court of America.

One need not cavil at the description of an amending power as sovereign power, for it is sovereign only within the scope of the power conferred by a particular constitution. All the authors also agree, that a particular constitution can expressly limit the power of amendment, both substantive and procedural. The only conflict lies in the fact that some authors do not pen-nit implied limitations when the power of amendment is expressed in general words. But others countenance such limitations by construction or otherwise. But none of the authors goes to the extent of saying, which is the problem before us, that when there are conflicting articles couched in widest terms, the court has no jurisdiction to construe and harmonize them. If some of the authors meant to say that-in our view, they did not-we cannot agree with them, for, in that event this Court would not be discharging its duty.

Nor can we appreciate the arguments repeated before us by learned counsel for the respondents that the amending process involves political questions which are, outside the scope of judicial review. When a matter comes before the Court, its jurisdiction does not depend upon the nature of the question raised but on die, question whether the said matter is expressly or by necesssary implication excluded from its jurisdiction. Secondly, it is not possible to define what is a political question and what is not. The character of a question depends upon the circumstances and the nature of a political society. To put if differently, the court does not decide any political question at all in the ordinary sense of the. term, but only ascertains whether Parliament is acting within the scope of the amending power. It may be that Parliament seeks to amend the Constitution for political reasons, but the Court in denying that power will not be deciding on political questions, but will only be holding that Parliament has no power to amend particular articles of the Constitution for any purpose whatsoever, be it political or otherwise. We, therefore, hold that there is nothing in the nature of the amending power which enables Parliament to override all the express or implied limi- tations imposed on that power. As we have pointed out earlier, our Constitution adopted a novel method in the sense that Parliament makes the amendment by legislative process subject to certain restrictions and,that the amendment so made being law" is.subject to Art. 13(2). The next argument is based upon the expression "amendment" in Art. 368 of the Constitution and if is contended that the said

The Tenth Schedule was inserted in the Constitution of India by the Constitution (Fifty-Second Amendment) Act, 1985 which came into force with effect from 1.3.1985 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 principles which sustained it. This amendment is, therefore, for outlawing defection to sustain our democratic principles. The Tenth Schedule contains eight paras. Para 1 is the interpretation clause defining 'House' to mean either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State. The expressions 'legislature party' and 'original political party' which are used in the remaining paras are also defined. Para 2 provides for disqualification on ground of defection. Para 3 provides that disqualification on ground of defection is not to apply in case of split indicating therein the meaning of 'split'. Para 4 provides that disqualification on ground of defection is not to apply in case of merger. Para 5 provides exemption for the Speaker or the Deputy Speaker of the House of the People or of the Legislative Assembly of the State, the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of a State from the applicability of the provisions of the Tenth Schedule. Para 8 contains the rule making power of the Chairman or the Speaker.

64. For the purpose of deciding the jurisdiction of this Court and the justiciability of the cause, it is paras 6 and 7 which are material and they read as under:

6. Decision on questions as to disqualification on ground of defection.--

(1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final: Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.

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

7. Bar of jurisdiction on courts.--

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

We shall now deal with the points involved enumerated earlier.

Points 'A' & 'B' -- Paras 6 & 7 of Tenth Schedule

65. In support of the objection raised to the jurisdiction of this Court and the justiciability of the Speaker's decision relating to disqualification of a member, it has been urged that sub-paragraph (1) of para 6 clearly lays down that the decision of the Chairman or, as the case may be, the Speaker of such House shall be final and sub-paragraph (2) proceeds to say that all proceedings under sub-paragraph (1) 'shall be deemed to be 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 Chairman/Speaker on the subject of disqualification under this Schedule shall be final and the further provision that all such proceedings 'shall be deemed to be proceedings in Parliament ... or,... proceedings in the Legislature of a State', within the meaning of Article 122 or Article 212, as the case may be, clearly manifests the intention that the jurisdiction of all courts including the Supreme Court is ousted in such matters and the decision on this question is not justiciable. Further argument is that para 7 in clear words thereafter reiterates that position by saying that 'notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule. In other words, the argument is that para 6 by itself provides for ouster of the jurisdiction of all courts including the Supreme Court and para 7 is a remanifestation of that clear intent in case of any doubt arising from para 6 alone. On this basis it was urged that the issue raised before us is not justiciable and the Speaker or the Chairman, as the case may be, not being 'Tribunal' within the meaning of that expression used in Article 136 of the Constitution, their decision is not open to judicial review.

66. 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 a 'proceedings in Parliament' or 'proceedings in the Legislature of a State' to bring it within the ambit of Clause (1) of Articles 122 or 212 but not within Clause (2) of these Articles. The expression 'proceedings in Parliament' and 'proceedings in the Legislature of a State' are used only in Clause (1) of Articles 122 and 212 but not in Clause (2) of either of these Articles, on account of which the scope of the fiction cannot be extended beyond the limitation implicit in the specific words used in the legal fiction. This being so, it was argued that immunity extended only to 'irregularity of procedure' but not to illegality as held in Keshav Singh -- (1965) 1 S.C.R. 413. In respect of para 7, the reply is that the expression 'no court' therein must be similarly construed to refer only to courts of ordinary jurisdiction but not the extra-ordinary jurisdiction of the High Courts under Articles 226 & 227 and the plenary jurisdiction of Supreme Court under Article 136. It was also argued that the Speaker/Chairman while deciding the question of disqualification of member under para 6 exercises a judicial function of the State which otherwise would be vested in the courts and, therefore, in this capacity he acts as 'Tribunal' amenable to the jurisdiction under Articles 136, 226 and 227 of the Constitution. Shri Sibal also contended that the bar in para 7 operates only at the interim stage, like other election disputes, and not after the final decision under para 6.

67. The finality clause in sub-paragraph (1) of para 6 which says that the decision of the Chairman or, as the case may be, the Speaker of such House shall be final is not decisive. It is settled that such a finality clause in a statute by itself is not sufficient to exclude the jurisdiction of the High Courts under Articles 226 and 227 and the Supreme Court under Article 136 of the Constitution, the finality being for the statute alone. This is apart from the decision being vulnerable on the ground of nullity. Accordingly, sub-paragraph (1) alone is insufficient to exclude the extra-ordinary jurisdiction of the High Courts and the plenary jurisdiction of this Court. The legal fiction in sub-paragraph (2) of para 6 can only bring the proceedings under sub-paragraph (1) thereof within the amit of Clause (1) of Article 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 arc 'shall be deemed to be proceedings in Parliament' or 'proceedings in the Legislature of a State': and such expressions find place both in Articles 122 and 212 only in Clause (1) and not Clause (2) thereof. The ambit of the legal fiction must be confined to the limitation implicit in the words used for creating the fiction and it cannot be given an extended meaning to include therein something in addition. 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'.

68. 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 and scope of the two cannot be identical even assuming there be some overlapping area between them. What is to be seen is the direct impact of the action and its true nature and not the further consequences flowing therefrom. It cannot be doubted in view of the clear language of sub-paragraph (2) of para 6 that it relates to Clause (1) of both Articles 122 and 212 and the legal fiction cannot, therefore, be extended beyond the limits of the express words used in the fiction. It construing the fiction it is not to be extended beyond the language of the Section by which it is created and its meaning must be restricted by the plain words used. It cannot also be extended by importing another fiction. The fiction in para 6(2) is a limited one which serves its purpose by confining it to Clause (1) alone of Articles 122 and 212 and, therefore, there is no occasion, to enlarge its scope by reading into it words which are not there and extending it also to Clause (2) of these Articles. See Commissioner of Income-tax v. Ajax Products Ltd.- .

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

70. 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 cause is based on a ground of illegality or perversity (See Keshav Singh -- (1965) 1 S.C.R. 413). This in our view is the true construction and effect of para 6 of the Tenth Schedule.

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

71. The words in para 7 of the Tenth Schedule are undoubtedly very wide ordinarily mean that this provision supersedes any other provision in the Constitution. This is clear from the use of the non obstante clause 'notwithstanding 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 under Article 136 and that of the High Courts under Articles 226 and 227 of the Constitution relating to matters covered by para 7. The question, therefore, is of the scope of para 7. The scope of para 7 for this purpose is to be determined by the expression 'in respect of any matter connected with the disqualification of a member of a House under this Schedule'.

72. One of the constructions suggested at the hearing was that this expression covers only the intermediate stage of the proceedings relating to disqualification under para 6 and not the end stage when the final order is made under para 6 on the question of disqualification. It was suggested that this construction would be in line with the construction made by this Court in its several decisions relating to exclusion of courts' jurisdiction in election disputes at the intermediate stage under Article 329 of the Constitution. This construction suggested of para 7 does not commend to us since it is contrary to the clear and unambiguous language of the provision. The expression 'in respect of any matter connected with the disqualification of a member of a House under this Schedule' is wide enough to include not merely the intermediate stage of the proceedings relating to disqualification but also the final order on the question of disqualification made under para 6 which is undoubtedly such a matter. There is thus express exclusion of all courts' jurisdiction even in respect of the final order.

73. As earlier indicated by virtue of the finality clause and the deeming provision in para 6, there is exclusion of all courts' jurisdiction to a considerable extent leaving out only the area of justiciability on the ground of illegality or perversity which obviously is relatable only to the final order under para 6. This being so, enactment of para 7 was necessarily made to bar the jurisdiction of courts also in respect of matters falling outside the purview of the exclusion made by para 6. Para 7 by itself and more so when read along with para 6 of the Tenth Schedule, leaves no doubt that exclusion of all courts' jurisdiction by para 7 is total leaving no area within the purview, even of the Supreme Court or the High Courts under Articles 136, 226 and 227. The language of para 7 being explicit, no other aid to construction is needed. Moreover, the speech of the Law Minister who piloted the bill in the Lok Sabha and that of the Prime Minister in the Rajya Sabha as well as the debate on this subject clearly show that these provisions were enacted to keep the entire matter relating to disqualification including the Speakers' final decision under para 6 on the question of disqualification, wholly outside the purview of all courts including the Supreme Court and the High Courts. The legislative history of absence of such a provision excluding the courts' jurisdiction in the two earlier Bills which lapsed also re-enforces the conclusion that enactment of para 7 was clearly to provide for total ouster of all courts' jurisdiction.

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

75. The question now is of the effect of enacting such a provision in the Tenth Schedule and the applicability of the proviso to Clause (2) of Article 368 of the Constitution.

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

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

77. Prima facie it would appear that para 7 does seek to make a change in Articles 136, 226 and 227 of the Constitution inasmuch as without para 7 in the Tenth Schedule a decision of the Speaker/Chairman would be amenable to the jurisdiction of the Supreme Court under Article 136 and of the High Courts under Articles 226 and 227 as in the case of decisions as to other disqualifications provided in Clause (1) of Article 102 or 191 by the President/Governor under Article 103 or 192 in accordance with the opinion of the Election Commission which was the scheme under the two earlier Bills which lapsed. However, some learned Counsel contended placing reliance on Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar 1952 SCR 89 and Sajjan Singh v. State of Rajasthan that, the effect of such total exclusion of the jurisdiction of the Supreme Court and the High Courts docs not make a change in Articles 136, 226 and 227. A close reading of these decisions indicates that instead of supporting this contention, they do in fact negative it.

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

It will be seen that these Articles do not either in terms or in effect seek to make any change in Article 226 or in Articles 132 and

136. Article 31A aims at saving laws providing for the compulsory acquisition by the State of a certain kind of property from the operation of Article 13 read with other relevant articles in Part III, while article 31B purports to validate certain specified Acts and Regulations already passed, which, but for such a provision, would be liable to be impugned under Article 13. It is not correct to say that the powers of the High Court under Article 226 to issue writs "for the enforcement of any of the rights conferred by Part III" or of this Court under Articles 132 and 136 to entertain appeals from orders issuing or refusing such writs are in any way affected. They remain just the same as they were before: only a certain class of case has been excluded from the purview of Part III and the courts could no longer interfere, not because their powers were curtailed in any manner or to any extent, but because there would be no occasion hereafter for the exercise of their powers in such cases.

(emphasis supplied)

79. 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 cither in terms i.e. explicit or in effect in these Articles to require ratification. The ground for rejection of the argument therein was that the remedy in the courts remained unimpaired and unaffected by the change and the change was really by extinction of the right to seek the remedy. In other words, the change was in the right and not the remedy of approaching the court since there was no occasion to invoke the remedy, the right itself being taken away. To the same effect is the decision in Sajjan Singh, wherein Sankari Prasad was followed stating clearly that there was no justification for reconsidering Sankari Prasad.

80. Distinction has to be drawn between the abridgement or extinction of a right and restriction of the remedy for enforcement of the right. If there is an abridgement or extinction of the right which results in the disappearance of the cause of action which enables invoking the remedy and in the absence of which there is no occasion to make a grievance and invoke the subsisting remedy, then the change brought about is in the right and not the remedy. To this situation, Sankari Prasad and Sajjan Singh apply. On the other hand, if the right remains untouched so that a grievance based thereon can arise and, therefore, the cause of action subsists, but the remedy is curtailed or extinguished so that the cause of action cannot be enforced for want of that remedy, then the change made is in the remedy and not in the subsisting right. To this latter category, Sankari Prasad and Sajjan Singh have no application. This is clear from the above-quoted passage in Sankari Prasad which clearly brings out this distinction between a change in the right and a change in the remedy.

The present case, in unequivocal terms, is that of destroying the remedy by enacting para 7 in the Tenth Schedule making a total exclusion of judicial review including that by the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution. But for para 7 which deals with the remedy and not the right, the jurisdiction of the Supreme Court under Article 136 and that of the High Courts under Articles 226 and 227 would remain unimpaired to challenge the decision under para 6, as in the case of decisions relating to other disqualifications specified in Clause (1) of Articles 102 and 191, which remedy continues to subsist. Thus, this extinction of the remedy alone without curtailing the right, since the question of disqualification of a member 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.

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

Point 'D' -- Effect of absence of ratification

82. The material part of Article 368 is as under:

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

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

Provided that if such amendment seeks to make any change in -- (a) Article 54, Article 55, Article 73, Article 162 or Article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

(emphasis suppplied)

It is Clause (2) with its proviso which is material. The main part of Clause (2) prescribes that a constitutional amendment can be initiated only by the introduction of a Bill for the purpose and when the Bill is passed by each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill. In short, the Bill on being passed by the required majority is presented to the President for his assent to the Bill and on giving of the assent, the Constitution stands amended accordingly. Then comes the proviso which says that 'if such an amendment seeks to make any change' in the specified provisions of the Constitution, the amendment shall also require to be ratified by the Legislature of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. In other words, the proviso contains a constitutional limitation on the amending power; and prescribes as a part of the special procedure, prior assent of the State Legislatures before presentation of the Bill to the President for his assent in the case of such Bills. This is a condition interposed by the proviso in between the passing of the Bill by the requisite majority in each House and presentation of the Bill to the President for his assent, which assent results in the Constitution automatically standing amended in accordance with the terms of the Bill. Thus, the Bills governed by the proviso cannot be presented to the President for his assent without the prior ratification by the specified number of State Legislatures or in other words, such ratification is a part of the special procedure or a condition precedent to presentation of the Bill governed by the proviso to the President for his assent. It logically follows that the consequence of the Constitution standing amended in accordance with the terms of the Bill on assent by the President, which is the substantive part of Article 368, results only when the Bill has been presented to the President for his assent in conformity with the special procedure after performance of the conditions precedent, namely, passing of the Bill by each House by the requisite majority in the case of all Bills; and in the case of Bills governed by the proviso, after the Bill has been passed by the requisite majority in each House and it has also been ratified by the Legislature of not less than one-half of the States.

83. The constituent power for amending the Constitution conferred by Article 368 also prescribes the mandatory procedure in Clause (2) including its proviso, for its exercise. The constituent power cannot, therefore, be exercised in any other manner and non-compliance of the special procedure so prescribed in Article 368(2) cannot bring about the result of the Constitution standing amended in accordance with the terms of the Bill since that result ensues only at the end of the prescribed mandatory procedure and not otherwise. The substantive part of Article 368 which provides for the resultant amendment is the consequence of strict compliance of the mandatory special procedure prescribed for exercise of the constituent power and that result does not ensue except in the manner provided.

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

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

XXX XXX XXX

...But when it comes to the amendment of the constitution, a special procedure has been prescribed in Article 368. Since the result of following the special procedure under the Article is the amendment of the Constitution the process which brings about the result is known as the exercise of constituent power by the bodies associated in the task of the amending the constitution.

It is, therefore, obvious, that when the Parliament and the State Legislatures function in accordance with Article 368 with a view to amend the constitution, they exercise constituent power as distinct from their ordinary legislative power under Articles 245 to 248. Article 368 is not entirely procedural. Undoubtedly part of it is procedural. But there is a clear mandate that on the procedure being followed the proposed amendment shall become part of the constitution, which is the substantive part of Article 368. Therefore, the peculiar or special power to amend the Constitution is to be sought in Article 368 only and not elsewhere. XXX XXX XXX

...The true position is that the alchemy of the special procedure prescribed in Article 368 produces the constituent power which transport the proposed amendment into the Constitution and gives it equal status with the other parts of the constitution."

(emphasis supplied)

84. Apart from the unequivocal language of Clause (2) including the proviso therein indicating the above result of prior ratification being a part of the special procedure or condition precedent for valid assent of the President, the same result is reached even by another route. The ordinary role of a proviso is to carve out an exception from the general rule in the main enacting part. The main enacting part of Clause (2) lays down that on a Bill for a constitutional amendment being passed in each House by a requisite majority, it shall be presented to the President for his assent and on the assent being given, the Constitution shall stand amended in accordance with the terms of the Bill. The proviso then carves out. the exception in case of Bills seeking to make any change in the specified Articles of the Constitution prescribing that in the case of those Bills, prior ratification by the Legislatures of not less than one-half of the States is also required before the Bill is presented to the President for assent. This means that a Bill falling within the ambit of the proviso is carved out of the main enactment in Clause (2) as an exception on account of which it cannot result in amendment of the Constitution on the President's assent without prior ratification by the specified number of State Legislatures. The proviso in Clause (2) is enacted for and performs the function of a true proviso by qualifying the generality of the main enactment in Clause (2) in providing an exception and taking out of the main enactment in Clause (2) such Bills which but for the proviso would fall within the main part. Not only the language of the main enactment in Clause (2) and the proviso thereunder is unequivocal to give this clear indication but the true role of a proviso, the form in which the requirement of prior ratification of such a Bill by the State Legislatures is enacted in Article 368 lend further assurance that this is the only construction of Clause (2) with its proviso which can be legitimately made. If this be the correct construction of Article 368(2) with the proviso as we think it is, then there is no escape from the logical conclusion that a Bill to which the proviso applies does not result in amending the Constitution in accordance with its terms on assent of the President if it was presented to the President for his assent and the President gave his assent to the Bill without prior ratification by the specified number of the State Legislatures. This is the situation in the present case.

85. Thus the requirement of prior ratification by the State Legislatures is not only a condition precedent forming part of the special mandatory procedure for exercise of the constituent power and a constitutional limitation thereon but also a requirement carving out an exception to the general rule of automatic amendment of the Constitution on the President's assent to the Bill.

86. In 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 if it was not duly ratified before presentation to the President for his assent. Nothing more is needed to show that not only para 7 of the Tenth Schedule but the entire Constitution (Fifty- Second Amendment) Act, 1985 is still born or an abortive attempt to amend the Constitution for want of prior ratification by the State Legislatures of the Bill before its presentation to the President for his assent.

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

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

Point 'E' -- Severability of para 7 of Tenth Schedule

89. The effect of absence of ratification indicated above suggests inapplicability of the Doctrine of Severability. In our opinion, it is not para 7 alone but the entire Tenth Schedule nay the Constitution (Fifty-Second Amendment) Act, 1985 itself which is rendered unconstitutional being an abortive attempt to so amend the Constitution. It is the entire Bill and not merely para 7 of the Tenth Schedule therein which required prior ratification by the State Legislatures before its presentation to the President for his assent, it being a joint exercise by the Parliament and State Legislatures. The stage for presentation of Bill to the President for his assent not having reached, the President's assent was non est and it could not result in amendment of the Constitution in accordance with the terms of the Bill for the reasons given earlier. Severance of para 7 of the Tenth Schedule could not be made for the purpose of ratification or the President's assent and, therefore, no such severance can be made even for the ensuing result. If the President's assent cannot validate para 7 in the absence of prior ratification, the same assent cannot be accepted to bring about a different result with regard to the remaining part of the Bill.

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

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

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

93. We are unable to read the Privy Council decision in The Bribery Commissioner v. Pedrick Ranasinghe 1965 AC 172 as an authority to support applicability of the Doctrine of Severability in the present case. In Kesavananda Bharati, the substance of that decision was indicated by Mathew, J., at p.778 of S.C.R., thus:

...that though Ceylon Parliament has plenary power of ordinary legislation, in the exercise of its Constitution power it was subject to the special procedure laid down in Section 29(4).... 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.

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

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

"A Bill, within the scope of Sub-section (6) of Section 7A, which received the Royal Assent without having been approved by 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.

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

96. Apart from inapplicability of the Doctrine of Severability to a Bill to which the proviso to Clause (2) of Article 368 applies, for the reasons given, it does not apply in the present case to strike down para 7 alone retaining the remaining part of the Tenth Schedule. In the first place, the discipline for exercise of the constituent power was consciously and deliberately adopted instead of resorting to the mode of ordinary legislation in accordance with Sub-clause (e) of Clause (1) of Articles 102 and 191, which would render the decision on the question of disqualification on the ground of defection also amenable to judicial review as in the case of decision on questions relating to other disqualifications. Moreover, even the test applicable for applying the Doctrine of Severability to ordinary legislation as summarised in R.M.D. Chamarbaugkwalla v. The 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 intent was to make the enactment only with para 7 therein and not without it. This intention is manifest throughout and evident from the fact that but for para 7 the enactment did not require the discipline of Article 368 and exercise of the constituent power. Para 7 follows para 6 the contents of which indicate the importance given to para 7 while enacting the Tenth Schedule. The entire exercise, as reiterated time and again in the debates, particularly the Speech of the Law Minister while piloting the Bill in the Lok Sabha and that of the Prime Minister in the Rajya Sabha, was to emphasise that total exclusion of judicial review of the Speaker's decision by all courts including the Supreme Court, was the prime object of enacting the Tenth Schedule. The entire legislative history shows this. How can the Doctrine of Severability be applied in such a situation to retain the Tenth Schedule striking down para 7 alone? This is a further reason for inapplicability of this doctrine.

Point 'F' - Violation of basic features

97. The provisions in the Tenth Schedule minus para 7, assuming para 7 to be severable as held in the majority opinion, can be sustained only if they do not violate the basic structure of the Constitution or damage any of its basic features. This is settled by Kesavananda Bharati - (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 accordance with the proviso to Clause (2) of Article 368 results in invalidation of para 7 alone.

98. Democracy is a part of the basic structure of our Constitution; and rule of law, and free and fair elections are basic features of democracy. One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority. It is only by a fair adjudication of such disputes relating to validity of elections and subsequent disqualifications of members that true reflection of the electoral mandate and governance by rule of law essential for democracy can be ensured. In the democratic pattern adopted in our Constitution, not only the resolution of election dispute is entrusted to a judicial tribunal, but even the decision on questions as to disqualification of members under Articles 103 and 192 is by the President/ Governor in accordance with the opinion of the Election Commission. The constitutional scheme, therefore, for decision on questions as to disqualification of members after being duly elected, contemplates adjudication of such disputes by an independent authority outside the House, namely, President/Governor in accordance with the opinion of the Election Commission, all of whom are high constitutional functionaries with security of tenure independent of the will of the House. Sub-clause (e) of Clause (1) in Articles 102 and 191 which provide for enactment of any law by the Parliament to prescribe any disqualification other than those prescribed in the earlier sub-clauses of Clause (1), clearly indicates that all disqualifications of members were contemplated within the scope of Articles 102 and 191. Accordingly, all disqualifications including disqualification on the ground of defection, in our constitutional scheme, are different species of the same genus, namely, disqualification, and the constitutional scheme does not contemplate any difference in their basic traits and treatment. It is undisputed that the disqualification on the ground of defection could as well have been prescribed by an ordinary law made by the Parliament under Articles 102(1)(e) and 191(1)(e) instead of by resort to the constituent power of enacting the Tenth Schedule. This itself indicates that all disqualifications of members according to the constitutional scheme were meant to be decided by an independent authority outside the House such as the 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 the purpose of entrusting the decision on the question of disqualification of a member, the constitutional scheme envisages an independent authority outside the House and not within it, which may be dependent on the pleasure of the majority in the House for its tenure.

99. The Speaker's office is undoubtedly high and has considerable aura with the attribute of impartiality. This aura of the office was even greater when the Constitution was framed and yet the farmers of the Constitution did not choose to vest the authority of adjudicating disputes as to disqualification of members to the Speaker; and provision was made in Articles 103 and 192 for decision of such disputes by the President/Governor in accordance with the opinion of the Election Commission. The reason is not far to seek.

100. The Speaker being an authority within the House and his tenure being dependent on the will of the majority therein, likelihood of suspicion of bias could not be ruled out. The question as to disqualification of a member has adjudicatory disposition and, therefore, requires the decision 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: Nemojudex in causa sua - 'A Judge is disqualified from determining any case in which he may be, or may fairly be suspected to be, biased'; and 'it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.' This appears to be the underlying principle adopted by the framers of the Constitution in not designating the Speaker as the authority to decide election disputes and questions as to disqualification of members under Articles 103, 192 and 329 and opting for an independent authority outside the House. The framers of the Constitution had in this manner kept the office of the Speaker away from this controversy. There is nothing unusual in this scheme if we bear in mind that the final authority for removal of a Judge of the Supreme Court and High Court is outside the judiciary in the Parliament under Article 124(4). On the same principle the authority to decide the question of disqualification of a member of legislature is outside the House as envisaged by Articles 103 and 192.

101. In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such dispute with no provision for any appeal or revision against the Speaker's decision to any independent outside authority. This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution since the Speaker cannot be treated as an authority contemplated for being entrusted with this function by the basic postulates of the Constitution, notwithstanding the great dignity attaching to that office with the attribute of impartiality.

102. It is the Vice-President of India who is ex-officio Chairman of the Rajya Sabha and his position, being akin to that of the President of India, is different from that of the Speaker. Nothing said herein relating to the office of the Speaker applies to the Chairman of the Rajya Sabha, that is, the Vice-President of India. However, the only authority named for the Lok Sabha and the Legislative Assemblies is the Speaker of the House and entrustment of this adjudicatory function fouls with the constitutional scheme and, therefore, violates a basic feature of the Constitution. Remaining part of the Tenth Schedule also is rendered invalid notwithstanding the fact that this defect would not apply to the Rajya Sabha alone whose Chairman is the Vice-President of India, since the Tenth Schedule becomes unworkable for the Lok Sabha and the State Legislatures. The statutory exception of Doctrine of Necessity has no application since designation of authority in the Tenth Schedule is made by choice while enacting the legislation instead of adopting the other available options.

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

104. Thus, even if the entire Tenth Schedule cannot be held unconstitutional merely on the ground of absence of ratification of the Bill, assuming it is permissible to strike down para 7 alone, the remaining part of the Tenth Schedule is rendered unconstitutional also on account of violation of the aforesaid basic feature.

105. Irrespective of the view on the question of effect of absence of ratification, the entire Tenth Schedule must be struck down as unconstitutional.

Point 'G' - Other contentions

106. We have reached the conclusion that para 7 of the Tenth Schedule is unconstitutional; that the entire Tenth Schedule is constitutionally invalid in the absence of prior ratification in accordance with the proviso to Clause (2) of Article 368; that the Doctrine of Severability does not apply in the present case of a constitutional amendment which suffers from the defect of absence of ratification as required by the proviso to Clause (2) of Article 368; that the remaining part of the Tenth Schedule minus para 7 is also unconstitutional for violation of a basic feature of the Constitution; and that the entire Tenth Schedule is, therefore, constitutionally invalid rendering the Constitution (Fifty-Second Amendment) Act, 1985 still born and an abortive attempt to amend the Constitution. In view of this conclusion, it is not necessary for us to express our concluded opinion on the other grounds of challenge to the constitutional validity of the entire Tenth Schedule urged at the hearing on the basis of alleged violation of certain other basic features of the Constitution including the right of members based on Article 105 of the Constitution.

107. These are our detailed reasons for the operative conclusions pronounced by us earlier on November 12, 1991.

72. In this regard, the Speaker referred to the views expressed by the Constitution Bench in Kihoto Hollohan's case (supra), wherein, one of the issues which had been raised and decided was that the act of voluntarily giving up membership of a political party may be either express or implied. Even greater emphasis was laid on the decision in Ravi S. Naik's case (supra), wherein, it was observed that there was no provision in the Tenth Schedule which indicated that till a petition, signed and verified in the manner laid down in the Civil Procedure Code for verification of pleadings, was 91

made to the Chairman or Speaker of the House, he did not get jurisdiction to give a decision as to whether a Member of the House had become subject to disqualification under Paragraph 2(1)(a) of the Tenth Schedule or not.

73. The aforesaid view taken by the Speaker has to be tested in relation to the action of the concerned Members of the House and it has to be seen whether on account of such action a presumption could have been drawn that they had voluntarily given up their membership of the BJP, thereby attracting the provisions of Paragraph 2(1)(a) of the Tenth Schedule.

74. In the instant case, the Appellants had in writing informed the Governor on 6th October, 2010, that having become disillusioned with the functioning of the Government headed by Shri B.S. Yeddyurappa, they had chosen to withdraw support to the Government headed by Shri B.S. Yeddyurappa and 92

had requested the Speaker to intervene and institute the constitutional process as constitutional head of the State. The said stand was re-emphasized in their replies to the Show- Cause notices submitted by the Appellants on 9th October, 2010, wherein they had, inter alia, denied that their conduct had attracted the vice of "defection" within the scope of Paragraph 2(1)(a) of the Tenth Schedule. In their said replies they had categorically indicated that nowhere in the letter of 6th October, 2010, had they indicated that they would not continue as Members of the Legislature Party of the BJP. On the other hand, they had reiterated that they would continue to support the BJP and any Government formed by the BJP headed by any leader, other than Shri B.S. Yeddyurappa, as Chief Minister of the State. They also reiterated that they would continue to support any Government headed by a clean and efficient person who could provide good governance to the 93

people of Karnataka according to the Constitution of India and that it was only to save the party and Government and to ensure that the State was rid of a corrupt Chief Minister, that the letter had been submitted to the Governor on 6th October, 2010.

75. At this point let us consider the contents of the letter dated 6th October, 2010, written by the Appellants to the Governor, which has been reproduced hereinbefore. The letter clearly indicates that the author thereof who had been elected as a MLA on a Bharatiya Janata Party ticket, having become disillusioned with the functioning of the Government headed by Shri B.S. Yeddyurappa on account of widespread corruption, nepotism, favouritism, abuse of power and misuse of Government machinery, was convinced that a situation had arisen in which the governance of the State could not be carried on in accordance with the provisions of the Constitution and that Shri 94

Yeddyurappa had forfeited the confidence of the people. The letter further indicates that it was in the interest of the State and the people of Karnataka that the author was expressing his lack of confidence in the Government headed by Shri Yeddyurappa and that he was, accordingly, withdrawing his support to the Government headed by Shri Yeddyurappa with a request to the Governor to intervene and institute the constitutional process as constitutional head of the State.

76. Although, Mr. Sorabjee was at pains to point out that the language used in the letter was similar to the language used in Article 356 of the Constitution, which, according to him, was an invitation to the Governor to take action in accordance with the said Article, the same is not as explicit as Mr. Sorabjee would have us believe. The "constitutional process", as hinted at in the said letter did not necessarily mean the 95

constitutional process of proclamation of President's rule, but could also mean the process of removal of the Chief Minister through constitutional means. On account thereof, the Bharatiya Janata Party was not necessarily deprived of a further opportunity of forming a Government after a change in the leadership of the legislature party. In fact, the same is evident from the reply given by the Appellants on 9th October, 2010, in reply to the Show-Cause notices issued to them, in which they had re-emphasized their position that they not only continued to be members of the Bharatiya Janata Party, but would also support any Government formed by the Bharatiya Janata Party headed by any leader, other than Shri B.S. Yeddyurappa, as the Chief Minister of the State. The conclusion arrived at by the Speaker does not find support from the contents of the said letter of 6th October, 2010, so as to empower the Speaker to take such a drastic step as to remove the 96

Appellants from the membership of the House.

77. The question which now arises is whether the Speaker was justified in concluding that by leaving Karnataka and going to Goa or to any other part of the country or by allegedly making statements regarding the withdrawal of support to the Government led by Shri Yeddyurappa and the formation of a new Government, the Appellants had voluntarily given up their membership of the B.J.P. and were contemplating the formation of a Government excluding the Bharatiya Janata Party. The Speaker has proceeded on the basis that the allegations must be deemed to have been proved, even in the absence of any corroborative evidence, simply because the same had not been denied by the Appellants. The Speaker apparently did not take into consideration the rule of evidence that a person making an allegation has to prove the same with supporting evidence and the mere fact that the 97

allegation was not denied, did not amount to the same having been proved on account of the silence of the person against whom such allegations are made. Except for the affidavit filed by Shri K.S. Eswarappa, State President of the B.J.P., and the statements of two of the thirteen MLAs, who had been joined in the Disqualification Application, there is nothing on record in support of the allegations which had been made therein. Significantly, the said affidavits had not been served on the Appellants. Since Shri K.S. Eswarappa was not a party to the proceedings, the Speaker should have caused service of copies of the same on the Appellants to enable them to meet the allegations made therein. In our view, not only did the Speaker's action amount to denial of the principles of natural justice to the Appellants, but it also reveals a partisan trait in the Speaker's approach in disposing of the Disqualification Application filed by Shri B.S. 98

Yeddyurappa. If the Speaker wished to rely on the statements of a third party which were adverse to the Appellants' interests, it was obligatory on his part to have given the Appellants an opportunity of questioning the deponent as to the veracity of the statements made in the affidavit. This conduct on the part of the Speaker is also indicative of the "hot haste" with which the Speaker disposed of the Disqualification Petition as complained of by the Appellants. The question does, therefore, arise as to why the Speaker did not send copies of the affidavit affirmed and filed by Shri Eswarappa as also the affidavits of the two MLAs, who had originally withdrawn support to the Government led by Shri Yeddyurappa, but were later allowed to retract their statements, to the Appellants. Given an opportunity to deal with the said affidavits, the Appellants could have raised the question as to why the said two MLAs, Shri M.P. Renukacharya and Shri Narasimha Nayak, were treated differently on 99

account of their having withdrawn the letters which they had addressed to the Governor, while, on the other hand, disqualifying the Appellants who had written identical letters to the Governor, upon holding that they had ceased to be members of the Bharatiya Janata Party, notwithstanding the Show- Cause notices issued to them. The explanation given as to why notices to show cause had been issued to the Appellants under Rule 7 of the Disqualification Rules, giving the Appellants only three days' time to respond to the same, despite the stipulated time of seven days or more indicated in Rule 7(3) itself, is not very convincing. There was no compulsion on the Speaker to decide the Disqualification Application filed by Shri Yeddyurappa in such a great hurry within the time specified by the Governor to the Speaker to conduct a Vote of Confidence in the Government headed by Shri Yeddyurappa. It would appear that such a course of action was adopted by the Speaker on 10th 100

October, 2010, since the Vote of Confidence on the Floor of the House was slated for 12th October, 2010. The element of hot haste is also evident in the action of the Speaker in this regard as well.

78. In arriving at the conclusion that by such short notice, no prejudice has been caused to the Appellants, since they had filed their detailed replies to the Show-Cause notices, the Speaker had relied on the two decisions of this Court, referred to hereinbefore in Dr. Mahachandra Prasad Singh's case and Ravi S. Naik's case, wherein it had been held that the 1986 Rules were directory and not mandatory in nature, and, as a result, the order dated 10th October, 2010, could not be set aside only on the ground of departure therefrom. Even if less than seven days' time is given to reply to the Show-Cause notice, the legislator must not be prejudiced or precluded from giving an effective reply to such notice.

101

79. One of the questions which was raised and answered in Dr. Mahachandra Prasad Singh's case was the nature and effect of non-compliance with the provisions of Rules 6 and 7 of the Disqualification Rules, 1994. It was held therein by a Bench of Three Judges of this Court that the said provisions were directory and not mandatory and the omission to file an affidavit neither rendered the petition invalid nor did it affect the assumption of jurisdiction by the Chairman to initiate proceedings to determine the question of disqualification of a Member of the House. In the facts of the said case it was held that the 1994 Rules being subordinate legislation, they were directory and not mandatory as they could not curtail the content and scope of the substantive provision under which they were made. However, the facts of this case differ significantly from the facts in Mahachandra's case (supra).

102

80. In Mahachandra's case, a member of the Indian National Congress, who had been elected as a Member of the Legislative Council on the ticket of the Indian National Congress, contested a Parliamentary election as an independent candidate, which facts were part of official records and not merely hearsay, as in the present case. In the aforesaid circumstances, the Chairman held that by contesting as an Independent Candidate, the said Member had given up his membership of the Indian National Congress. It is in that context that it was held that since the Member had not disputed the allegations, but had, in fact, admitted the same in his writ petition, he had not suffered any prejudice in not being provided with a copy of the letter from the leader of the Indian National Congress on which reliance had been placed by the Chairman. The distinguishing feature of the facts of Mahachandra Prasad Singh's case and this case is 103

that the facts in the former case were admitted and were part of the official records, while in this case the allegations are highly disputed and are in the realms of allegation which were yet to be proved with corroborating evidence, though according to the Speaker, such allegations were not disputed.

81. As far as the decision in Ravi S. Naik's case (supra) is concerned, the facts of the said case are somewhat different from the facts of this case. What is commonly known and referred to as Ravi S. Naik's case is, in fact, a decision in respect of the two Civil Appeals, namely, Civil Appeal No.2904 of 1993 filed by Ravi S. Naik and Civil Appeal No.3309 of 1993 filed by Shri Sanjay Bandekar and Shri Ratnakar Chopdekar. There is a certain degree of similarity between the facts of the latter appeal and this case. At the relevant time, the Congress (I) initially formed the Government with 104

the support of one independent member. Subsequently, seven members of the Congress (I) left the party and formed the Goan People's Party and formed a coalition government with the Maharashtrawadi Gomantak Party under the banner of Progressive Democratic Front (PDF). The said government was also short-lived and ultimately President's Rule was imposed in the State and the Legislative Assembly was suspended on 14th December, 1990. Prior to proclamation of President's Rule, Shri Ramakant Khalap, who was the leader of the Progressive Democratic Front, staked his claim to form a Government, but no further action was taken on such claim since the Assembly was suspended on 14th December, 1990. However, Shri Ramakant Khalap filed a petition before the Speaker under Article 191(2) read with paragraphs 2(1)(a) and 2(1)(b) of the Tenth Schedule to the Constitution for disqualification of two Members, who had joined the Congress Democratic Front inspite of being Members 105

of the Maharashtrawadi Gomantak Party. By his order dated 13th December, 1990, the Speaker disqualified the said two Members from the House on the ground of defection.

82. On 25th January, 1991, President's Rule was revoked and Shri Ravi S. Naik was sworn in as Chief Minister of Goa. On the same day, one Dr. Kashinath G. Jhalmi, belonging to the Maharashtrawadi Gomantak Party, filed a petition before the Speaker for Shri Naik's disqualification on the ground of defection. Simultaneously with the above, the Speaker, Shri Sirsat, was removed from the Office and was replaced by the Deputy Speaker who began to function as Speaker in his place. Shri Bandekar and Shri Chopdekar filed an application before the Deputy Speaker for review of the order dated 13th December, 1990, by which they had been disqualified from the membership of the House. The same was allowed by the Deputy Speaker by his order dated 7th 106

March, 1991, and the earlier order dated 13th December, 1990, was set aside. Similarly, Shri Ravi Naik also filed an application for review of the order dated 15th February, 1991, which was allowed by the Deputy Speaker by his order of 8th March, 1991. The said two orders passed by the Deputy Speaker were challenged by way of Writ Petitions which were allowed and the orders passed by the Deputy Speaker on 7th and 8th March, 1991, were held to be void. Consequently, the Writ Petitions filed by Shri Bandekar and Shri Chopdekar and by Shri Ravi S. Naik stood revived with a direction for disposal of the same on merits. The Writ Petitions were ultimately dismissed against which two appeals were filed.

83. It was in the appeal filed by Shri Bandekar and Shri Chopdekar that the issue of voluntary resignation from membership of the Maharashtrawadi Gomantak Party fell for consideration of the High 107

Court, while in Ravi S. Naik's case the question was whether a valid split of the aforesaid party had been effected with Shri Naik forming a new party with seven other Members of the said party. The said question was answered in Shri Ravi Naik's favour and his appeal was allowed and the order of his disqualification from the House was set aside. The other appeal filed by Shri Bandekar and Shri Chopdekar was dismissed and their disqualification by the Speaker was upheld. In other words, the High Court approved the proposition that it was not necessary for a Member of the House to formally tender his resignation from the party but that the same should be inferred from his conduct. It was held that a person may voluntarily give up his/her membership of a political party, even though he/she had not tendered his/her resignation from the membership of that party. However, the Division Bench of the High Court approved the said proposition in the facts and circumstances of that 108

case, where, after the Government was initially formed, there was an exodus from the principal party resulting in the formation of a new party which stood protected under paragraph 4 of the Tenth Schedule to the Constitution. Of course, it will also have to be noted that Shri Bandekar and Shri Chopdekar had not only accompanied Dr. Barbosa to the Governor and had informed the Governor that it did not support the Maharashtrawadi Gomantak Party any further, but they had also made it known to the public that they had voluntarily resigned from the membership of the said party. It is in these facts that a presumption was drawn from the conduct of the Members that they had voluntarily resigned from the membership of the Maharashtrawadi Gomantak Party. In the said case also, after Show- Cause notices were issued, both persons filed their replies stating that they had not given up the membership of the Maharashtrawadi Gomantak Party voluntarily or would otherwise continue to be a 109

Member of the said party and no document had been produced by the complainant nor has anything disclosed to show that they had resigned from the membership of the party. It was also denied that they had informed the Governor that they did not support the Maharashtrawadi Gomantak Party or that they had informed anybody that they had voluntarily resigned from the membership of said party. The Speaker, however, rejected the explanation given by Shri Bandekar and Shri Chopdekar and recorded that he was satisfied that by their conduct, actions and speech, they had voluntarily given up the membership of the Maharashtrawadi Gomantak Party.

84. This brings us to the next question regarding the manner in which the Disqualification Application filed by Shri B.S. Yeddyurappa was proceeded with and disposed of by the Speaker. On 6th October, 2010, on receipt of identical letters from the 13 BJP MLAs and the 5 independent MLAs 110

withdrawing support to the BJP Government led by Shri B.S. Yeddyurappa, the Governor on the very same day, wrote a letter to the Chief Minister, informing him of the developments regarding the withdrawal of support by 13 BJP MLAs and 5 independent MLAs and requesting him to prove his majority in the Assembly on or before 12th October, 2010 by 5.00 p.m. The Speaker was also requested accordingly. On the very same day, Shri Yeddyurappa, as the leader of the Bharatiya Janata Legislative Party in the Legislative Assembly, filed an application before the Speaker under Rule 6 of the Disqualification Rules, 1986, being Disqualification Application No.1 of 2010, for a declaration that all the thirteen MLAs elected on BJP tickets along with two other MLAs had incurred disqualification in view of the Tenth Schedule to the Constitution. Immediately thereafter, on 7th October, 2010, the Speaker issued Show-Cause notices to the aforesaid MLAs informing them of the 111

Disqualification Application filed by Shri B.S. Yeddyurappa and informing them that by submitting letters to the Governor withdrawing support to the Government led by Shri Yeddyurappa, they had violated paragraph 2(1)(a) of the Tenth Schedule to the Constitution and were, therefore, disqualified from continuing as Members of the House. The Appellants were given time till 5.00 p.m. on 10th October, 2010, to submit their objection, if any, to the said application. Even if as held by this Court in Mahachandra Prasad Singh's case (supra), Rules 6 and 7 of the Disqualification Rules are taken as directory and not mandatory, the Appellants were still required to be given a proper opportunity of meeting the allegations mentioned in the Show-Cause notices. The fact that the Appellants had not been served with notices directly, but that the same were pasted on the outer doors of their quarters in the MLA complex and that too without copies of the various 112

documents relied upon by Shri Yeddyurappa, giving them three days' time to reply to the said notices justifies the Appellants' contention that they had not been given sufficient time to give an effective reply to the Show-Cause notices. Furthermore, the Appellants were not served with copies of the affidavit filed by Shri K.S. Eswarappa, although, the Speaker relied heavily on the contents thereof in arriving at the conclusion that the Appellants stood disqualified under paragraph 2(1)(a) of the Tenth Schedule to the Constitution.

85. Likewise, the Appellants were also not supplied with the copies of the affidavits filed by Shri M.P. Renukacharya and Shri Narasimha Nayak, whereby they retracted the statements which they had made in their letters submitted to the Governor on 6th October, 2010. The Speaker not only relied upon the contents of the said affidavits, but also dismissed the Disqualification Application against 113

them on the basis of such retraction, after having held in the case of the Appellants that the provisions of paragraph 2(1)(a) of the Tenth Schedule to the Constitution were attracted immediately upon their intention to withdraw their support to the Government led by Shri Yeddyurappa. The Speaker ignored the claim of the Appellants to be given reasonable time to respond to the Show- Cause notices and also to the documents which were handed over to the learned Advocates of the Appellants at the time of hearing of the Disqualification Application. Incidentally, a further incidence of partisan behaviour on the part of the Speaker will be evident from the fact that not only were the Appellants not given an adequate opportunity to deal with the contents of the affidavits affirmed by Shri K.S. Eswarappa, Shri M.P. Renukacharya and Shri Narasimha Nayak, but the time given to submit the Show-Cause on 10th October, 2010, was preponed from 5.00 p.m. to 3.00 p.m., 114

making it even more difficult for the Appellants to respond to the Show-Cause notices in a meaningful manner. The explanation given by the Speaker that the Appellants had filed detailed replies to the Show-Cause notices does not stand up to the test of fairness when one takes into consideration the fact that various allegations had been made in the three affidavits filed by Shri K.S. Eswarappa, Shri M.P. Renukacharya and Shri Narasimha Nayak, which could only be answered by the Appellants themselves and not by their learned Advocates.

86. The procedure adopted by the Speaker seems to indicate that he was trying to meet the time schedule set by the Governor for the trial of strength in the Assembly and to ensure that the Appellants and the other independent MLAs stood disqualified prior to the date on which the Floor Test was to be held. Having concluded the hearing on 10th October, 2010, by 5.00 p.m., the Speaker 115

passed a detailed order in which various judgments, both of Indian Courts and foreign Courts, and principles of law from various authorities were referred to, on the same day, holding that the Appellants had voluntarily given up their membership of the Bharatiya Janata Party by their acts and conduct which attracted the provisions of paragraph 2(1)(a) of the Tenth Schedule to the Constitution, whereunder they stood disqualified. The Vote of Confidence took place on 11th October, 2010, in which the disqualified members could not participate and, in their absence Shri B.S. Yeddyurappa was able to prove his majority in the House.

87. Unless it was to ensure that the Trust Vote did not go against the Chief Minister, there was no conceivable reason for the Speaker to have taken up the Disqualification Application in such a great hurry. Although, in Mahachandra Prasad Singh's 116

case (supra) and in Ravi S. Naik's case (supra), this Court had held that the Disqualification Rules were only directory and not mandatory and that violation thereof amounted to only procedural irregularities and not violation of a constitutional mandate, it was also observed in Ravi S. Naik's case (supra) that such an irregularity should not be such so as to prejudice any authority who is affected aversely by such breach. In the instant case, it was a matter of survival as far as the Appellants were concerned. In such circumstances, they deserved a better opportunity of meeting the allegations made against them, particularly when except for the newspaper cuttings said to have been filed by Shri Yeddyurappa along with the Disqualification Application, there was no other evidence at all available against the Appellants.

88. We are quite alive to the decision in Jagjit Singh's case (supra), where it was held that 117

failure to provide documents relied upon by the Speaker to the concerned Member, whose membership of the House was in question, and denying him the right of cross-examination, did not amount to denial of natural justice and did not vitiate the proceedings. However, a rider was added to the said observation to the effect that the Speaker's decision in such a situation would have to be examined on a case-to-case basis. In Jagjit Singh's case (supra), video recordings of TV interviews, participation in the meeting of the Congress Legislative Party in the premises of the Assembly, the signatures on the register maintained by the Congress Legislative Party, were produced before the Speaker, who decided the matter on the basis thereof. That is not so in the present case. As mentioned hereinbefore, the Disqualification Application filed by Shri Yeddyurappa contained only bald allegations, which were not corroborated by any direct evidence. The 118

application did not even mention the provision under which the same had been made. By allowing Shri K.S. Eswarappa, who was not even a party to the proceedings, and Shri M.P. Renukacharya and Shri Narasimha Nayak to file their respective affidavits, the short-comings in the Disqualification Application were allowed to be made up. The Speaker, however, relied on the same to ultimately declare that the Appellants stood disqualified from the membership of the House, without even serving copies of the same on the Appellants, but on their learned Advocates, just before the hearing was to be conducted. If one were to take a realistic view of the matter, it was next to impossible to deal with the allegations at such short notice. In the circumstances, we cannot but hold that the conduct of the proceedings by the Speaker and the decision given by the Speaker on the basis thereof did not meet even the parameters laid down in Jagjit Singh's case (supra).

119

89. We cannot also lose sight of the fact that although the same allegations, as were made against the Appellants by Shri Yeddyurappa, were also made against Shri M.P. Renukacharya and Shri Narasimha Nayak, their retraction was accepted by the Speaker, despite the view expressed by him that upon submitting the letter withdrawing support to the BJP Government led by Shri Yeddyurappa, all the MLAs stood immediately disqualified under paragraph 2(1)(a) of the Tenth Schedule to the Constitution, and they were, accordingly, permitted to participate in the Confidence Vote for reasons which are not required to be spelt out.

90. On the question of justiceability of the Speaker's order on account of the expression of finality in paragraph 6 of the Tenth Schedule to the Constitution, it has now been well-settled that such finality did not include the powers of the superior Courts under Articles 32, 226 and 136 of 120

the Constitution to judicially review the order of the Speaker. Under paragraph 2(1)(a) of the Tenth Schedule, the Speaker functions in a quasi-judicial capacity, which makes an order passed by him in such capacity, subject to judicial review. The scope of paragraph 2(1)(a) of the Tenth Schedule to the Constitution, therefore, enables the Speaker in a quasi-judicial capacity to declare that a Member of the House stands disqualified for the reasons mentioned in paragraph 2(1)(a) of the Tenth Schedule to the Constitution.

91. Having considered all the different aspects of the matter and having examined the various questions which have been raised, we are constrained to hold that the proceedings conducted by the Speaker on the Disqualification Application filed by Shri B.S. Yeddyurappa do not meet the twin tests of natural justice and fair play. The Speaker, in our view, proceeded in the matter as if 121

he was required to meet the deadline set by the Governor, irrespective of whether, in the process, he was ignoring the constitutional norms set out in the Tenth Schedule to the Constitution and the Disqualification Rules, 1986, and in contravention of the basic principles that go hand-in-hand with the concept of a fair hearing.

92. As we have earlier indicated, even if the Disqualification Rules were only directory in nature, even then sufficient opportunity should have been given to the Appellants to meet the allegations levelled against them. The fact that the Show-Cause notices were issued within the time fixed by the Governor for holding the Trust Vote, may explain service of the Show-Cause notices by affixation at the official residence of the Appellants, though without the documents submitted by Shri Yeddyurappa along with his application, but it is hard to explain as to how the affidavits, 122

affirmed by Shri K.S. Eswarappa, Shri M.P. Renukacharya and Shri Narasimha Nayak, were served on the learned Advocates appearing for the Appellants only on the date of hearing and that too just before the hearing was to commence. Extraneous considerations are writ large on the face of the order of the Speaker and the same has to be set aside.

93. Incidentally, in paragraph 5 of the Tenth Schedule, which was introduced into the Constitution by the Fifty-second Amendment Act, 1985, to deal with the immorality of defection and Floor crossing during the tenure of a legislator, it has been indicated that notwithstanding anything contained in the said Schedule, a person who has been elected to the office of the Speaker or the Deputy Speaker of the House of the People or the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative 123

Council of the State or the Speaker or the Deputy Speaker of the Legislative Assembly of a State, shall not be disqualified under the Schedule if he by reason of his election to such office, voluntarily gives up the membership of the political party to which he belonged immediately before such election, and does not, so long as he continues to hold such office thereafter, rejoin that political party or become a member of another political party. The object behind the said paragraph is to ensure that the Speaker, while holding office, acts absolutely impartially, without any leaning towards any party, including the party from which he was elected to the House.

94. The Appeals are, therefore, allowed. The order of the Speaker dated 10th October, 2010, disqualifying the Appellants from the membership of the House under paragraph 2(1)(a) of the Tenth Schedule to the Constitution is set aside along 124

with the majority judgment delivered in Writ Petition (Civil) No.32660-32670 of 2010, and the portions of the judgment delivered by Justice N. Kumar concurring with the views expressed by the Hon'ble Chief Justice, upholding the decision of the Speaker on the Disqualification Application No.1 of 2010 filed by Shri B.S. Yeddyurappa. Consequently, the Disqualification Application filed by Shri B.S. Yeddyurappa is dismissed.

95. There will be no order as to costs.

................................................J. (ALTAMAS KABIR)
................................................J. (CYRIAC JOSEPH)

New Delhi,: 13.05.2011.