The anti-defection law was passed by parliament in 1985.

Twenty-five years down the road, it is pertinent to trace the several modifications and to evaluate how well the law has worked.

The 52nd amendment to the Constitution added the Tenth Schedule which laid down the process by which legislators may be disqualified on grounds of defection. A member of parliament or state legislature was deemed to have defected if he either voluntarily resigned from his party or disobeyed the directives of the party leadership on a vote. That is, they may not vote on any issue in contravention to the partys whip. Independent members would be disqualified if they joined a political party. Nominated members who were not members of a party could choose to join a party within six months; after that period, they were treated as a party member or independent member.

The law also made a few exceptions. Any person elected as speaker or chairman could resign from his party, and rejoin the party if he demitted that post. A party could be merged into another if at least two-thirds of its party legislators voted for the merger. The law initially permitted splitting of parties, but that has now been outlawed. Experience so far In the 24 years of this law, complaints have been made against 62 Lok Sabha MPs. Of these, 26 were disqualified. It is pertinent to note that ten of these disqualifications were after the trust vote of July 2008 (over India-US civil nuclear co-operation). Four cases were made against Rajya Sabha MPs (two in 1989 and two in 2008) and all were upheld. In state legislatures, up to 2004, out of 268 complaints, 113 were upheld. Challenges and Interpretations The anti-defection law raises a number of questions, several of which have been addressed by the courts and the presiding officers.

Does the law impinge on the right of free speech of the legislators? This issue was addressed by the five-judge Constitution Bench of the Supreme Court in 1992 (Kihoto Hollohan vs Zachilhu and others). The court said that the anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conductabove certain theoretical assumptions. It held that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy.

What constitutes voluntarily resigning from a party? Various judgements and orders indicate that a member who publicly opposes the party or states his support for another party would be deemed to have resigned from his party. News reports may be used as evidence for this purpose.

Can the decision of the presiding officer be challenged in the courts? The law states that the decision is final and not subject to judicial review. The Supreme Court struck down part of this condition. It held that there may not be any judicial intervention until the presiding officer gives his order. However, the final decision is subject to appeal in the High Courts and Supreme Court. Issues for consideration Should the law be valid for all votes or only for those that determine the stability of the government (such as the confidence and no-confidence motions)? The main intent of the law was to deter the evil of political defections by legislators motivated by lure of office or other similar considerations. However, loss of membership is hardly a penalty in cases ahead of the scheduled time of general electionsas seen last year. It also loses significance if the House is likely to be dissolved. On the other hand, the voting behaviour may be affected even on issues not related to the stability of the government. A member may be unable to express his actual belief or the interests of his constituents. Therefore, a case may be made for restricting the law to confidence and no-confidence motions. The

Dinesh Goswami Committee on electoral reforms (1990) recommended this change, while the Law Commission (170th report, 1999) suggested that political parties issue whips only when the government was in danger.

Should the law apply only to pre-poll alliances? The rationale that a representative is elected on the basis of the partys programme can be extended to pre-poll alliances. The Law Commission proposed this change with the condition that partners of such alliances inform the Election Commission before the elections. Should the judgement be made by the presiding officers? Several MPs had raised this issue at the time of passage of the law. The Supreme Court upheld the law in the Kihoto Hollohon judgment. The Goswami Committee, the Election Commission and the Venkatachaliah Commission to Review the Constitution (2002) have recommended that the decision should be made by the president or the governor on the advice of the Election Commission. This would be similar to the process for disqualification on grounds of office of profit.

Should there be any additional penalties on defectors? The Venkatachaliah Commission recommended that defectors should be barred from holding any ministerial or remunerative political office for the remaining term of the House. It also said that the vote of any defector should not be counted in a confidence or no-confidence motion. There is no ambiguity in the legality of current provisions related to these issues. Any change would require legislative action. There is, however, need for public debate on the working of the anti-defection law. Constitution of India

405. TENTH SCHEDULE

1[TENTH SCHEDULE [Articles 102(2) and 191(2)]

Provisions as to disqualification on ground of defection 1. Interpretation.In this Schedule, unless the context otherwise requires, (a) House means either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State; (b) legislature party, in relation to a member of a House belonging to any political party in accordance with the provisions of paragraph 2 or 2[***] paragraph 4, means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions; (c) original political party, in relation to a member of a House, means the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2; (d) paragraph means a paragraph of this Schedule. 2. Disqualification on ground of defection.(1) Subject to the provisions of 3[paragraphs 4 and 5], a member of a House belonging to any political party shall be disqualified for being a member of the House (a) if he has voluntarily gives up his membership of such political party; or

(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. Explanation.For the purposes of this sub-paragraph, (a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member; (b) a nominated member of a House shall, (i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party; (ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188. (2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election. (3) A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188. (4) Notwithstanding anything contained in the foregoing provisions of this paragraph, a person who, on the commencement of the Constitution (Fifty-second Amendment) Act, 1985, is a member of a House (whether elected or nominated as such) shall, (i) where he was a member of political party immediately before such commencement, be deemed, for the purposes of sub-paragraph (1) of this paragraph, to have been elected as a member of such House as a candidate set up by such political party; (ii) in any other case, be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of sub-paragraph (2) of this paragraph or, as the case may be, deemed to be a nominated member of the House for the purposes of sub-paragraph (3) of this paragraph. 4[***] 4. Disqualification on ground of defection not to apply in case of merger.(1) A member of a House shall not be disqualified under sub-paragraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party (a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or (b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph.

(2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger. 5. Exemption.Notwithstanding anything contained in this 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 Council of a State or the Speaker or the Deputy Speaker of the Legislative Assembly of a State, shall not be disqualified under this Schedule, (a) 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; or (b) if he, having given up by reason of his election to such office his membership of the political party to which he belonged immediately before such election, rejoins such political party after he ceases to hold such office. 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 of courts.Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule. 8. Rules.(1) Subject to the provisions of sub-paragraph (2) of this paragraph, the Chairman or the Speaker of a House may make rules for giving effect to the provisions of this Schedule, and in particular, and without prejudice to the generality of the foregoing, such rules may provide for (a) the maintenance of registers or other records as to the political parties if any, to which different members of the House belong; (b) the report which the leader of a legislature party in relation to a member of a House shall furnish with regard to any condonation of the nature referred to in clause (b) of sub-paragraph (1) of paragraph 2 in respect of such member, the time within which and the authority to whom such report shall be furnished; (c) the reports which a political party shall furnish with regard to admission to such political party of any members of the House and the officer of the House to whom such reports shall be furnished; and (d) the procedure for deciding any question referred to in sub-paragraph (1) of paragraph 6 including the procedure for any inquiry which may be made for the purpose of deciding such question. (2) The rules made by the Chairman or the Speaker of a House under sub-paragraph (1) of this paragraph shall be laid as soon as may be after they are made before the House for a total period of thirty days which may be comprised in one session or in two or more successive sessions and shall take effect upon the expiry of the said period of thirty days unless they are sooner approved with or without modifications or disapproved by the House

and where they are so approved, they shall take effect on such approval in the form in which they were laid or in such modified form, as the case may be, and where they are so disapproved, they shall be of no effect. (3) The Chairman or the Speaker of a House may, without prejudice to the provisions of article 105 or, as the case may be, article 194, and to any other power which he may have under this Constitution direct that any wilful contravention by any person of the rules made under this paragraph may be dealt with in the same manner as a breach of privilege of the House.] ------------------------------1. Added by the Constitution (Fifty-second Amendment) Act, 1985, sec. 6 (w.e.f. 1-3-1985). 2. The words paragraph 3, or as the case may be omitted by the Constitution (Ninety-first Amendment) Act, 2003, sec. 5(a) (w.e.f. 1-1-2004). 3. Subs. by the Constitution (Ninety-first Amendment) Act, 2003, sec. 5(b), for paragraphs 3, 4 and 5 (w.e.f. 1-12004). 4. Paragraph 3 omitted by the Constitution (Ninety-first Amendment) Act, 2003, sec. 5(c) (w.e.f. 1-1-2004). Prior to omission paragraph 3 stood as under: 3. Disqualification on ground of defection not to apply in case of split.Where a member of a House makes a claim that he and any other members of his legislature party constitute the group representing a faction which has arisen as a result of a split in his original political party and such group consists of not less than one third of the members of such legislature party, (a) he shall not be disqualified under sub-paragraph (1) of paragraph 2 on the ground (i) that he has voluntarily given up his membership of his original political party; or (ii) that he has voted or abstained from voting in such House contrary to any direction issued by such party or by any person or authority authorised by it in that behalf without obtaining the prior permission of such party, person or authority and such voting or abstention has not been condoned by such party, person or authority within fifteen days from the date of such voting or abstention; and (b) from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this paragraph. * Paragraph 7 declared invalid for want of ratification in accordance with the proviso to clause (2) of article 368 as per majority opinion in Kihota Hollohan v. Zachilhu, (1992) 1 SCC 309.

Defect-Shun: Understanding Schedule X to the Constitution of India

The menace of defection was spreading among political ranks and it became imperative to enact a legislation that could effectively curb this rising tendency. It was against this background that the Schedule was added to the constitution writes Jenna Narayan.

Introduction The 10th Schedule to the Indian Constitution, that is popularly referred to as the Anti-Defection Law was inserted by the 1985 Amendment to the Constitution. Defection has been defined as, To abandon a position or association, often to join an opposing group The Advanced Law Lexicon defines defection as, crossing the floor by a member of a Legislature is called defection. In short, defection is an act by a member of a particular party of disowning his loyalty towards that particular party and pledging allegiance to another party. This is what the Law Lexicon describes as crossing the floor. The reasons for the addition of this Schedule were explained by the Statement of Objects and Reasons of the Fifty-second Amendment (1985) to the constitution in the following words, The evil of political defections has been a matter of national concern. If it is not

combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the address by the President to Parliament that the government intended to introduce in the current session of Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance.

The scope of this anti-defection law was examined in detail in Kihoto Hollohan v Zachillhu , a case that also analyzed various other aspects of this legislation also. Here, the court, speaking about the necessity of an anti-defection legislation, said, The object is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy. The remedy proposed to disqualify the members of either House of Parliament or of the State Legislature who is found to have defected from continuing as a Member of the House. The grounds of disqualification are specified in Paragraph 2 of the Tenth Schedule. Overview of Schedule X This succinct legislation contains 8 paragraphs- the first setting out definitions, the second stating the disqualifications, the third (now deleted by the 2003 Amendment to the constitution) about splits within the party, the fourth about a disqualification not to apply in case of mergers, the fifth setting out certain exemptions, the sixth and seventh- stating the person who would decide disputes and barring jurisdiction of courts in respect of questions relating to disqualification of a member, and finally, the last paragraph enabling a Speaker or a Chairman to make rules for a House in order to give effect to the provisions contained in the Schedule. The Courts of the land have been called upon to adjudicate upon and interpret almost all these provisions. Perhaps the one clause that has come under the judicial microscope the maximum number of times, is para 2 that sets out the disqualifications of a member. Given the vicissitudes of Indian politics, the courts have taken defiant stands against acts of defection. These provisions are examined in greater detail below and aided by case laws. This article would attempt to bring out the scope and the essence of these rules. Analysis of Provisions of Schedule X A. Para 2-Disqualifications The section that would verily form the crux of this legislation is paragraph 2 that gives the circumstances when a member would incur disqualification from the House. This para would be dealt with in detail under this article, primarily for two reasons- one, that it forms the quintessence of this law and hence, a comprehensive understanding of this provision is crucial and two, because the judiciary has been called upon a number of times to interpret its provisions and it has therefore shed some light on the manner in which these provisions should be construed. Therefore, we see that the above para sets out when a member would incur a disqualification (under para 2 (1) (a) and (b)). The provision seems to be fairly clear when it provides two cases wherein the disqualification would apply- first, when there is a voluntarily giving up of seat by the member and second, when he votes (or abstains from voting) contrary to the directive issued by the party. Now, two important questions arise in this regard-

What would constitute voluntarily giving up of seat? What is the full import of 2 (1) (b) wherein voting/abstention from voting against the party?

At the first instance, the phrase voluntarily giving up of seat sounds pretty straightforward. It is giving up of the seat in the House by ones own will. However, the Courts have given certain pointers on its interpretation. In Ravi Naik v Union of India , the Supreme Court says, The words voluntarily given up his membership are not synonymous with resignation and have a wider connotation. A person

may voluntarily give up his membership of a political party even though he has not rendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.
Referring to these words, in the case of Rajendra Singh Rana v Swami Prasad Maurya and Others the Supreme Court held that the act of giving a letter requesting the Governor to call upon the leader of the other side to form a Government, itself would amount to an act of voluntarily giving up the membership of the party on whose ticket the said members had got elected. In this case, in the 2002 Assembly elections in the State of Uttar Pradesh, a coalition government was formed since none of the parties secured a majority. In the middle of 2003, a unanimous decision was taken by the Cabinet to dissolve the Assembly. After the Cabinets decision and before the resignation of the leader of the coalition Government (then, Mrs. Mayawati, belonging to the Bahujan Samaj Party [BSP]), thirteen members from the BSP met the Governor and requested him to invite the leader of the opposite party (then, the Samajwadi Party [SP]) to form the Government. It was in this context that the Court held the above. Para 2 and its Constitutional validity The constitutional validity of paragraph 2, especially the clause providing that the member would incur a disqualification if he votes/abstains from voting against the party directions, has been challenged. The Supreme Court has analyzed this point in detail in Kihoto Hollohan v Zachillhu . Explaining its position, the court said, there are certain side effects and fall out which might affect and

hurt even honest dissenters and conscientious objectors, but these are the usual plus and minus of all areas of experimental legislation. In these areas, the distinction between what is constitutionally permissible and what is outside it is marked by a hazy gray line and it is the Courts duty to identify, darken and deepen the demarcating line of constitutionality
Holding that the provisions of the Tenth Schedule are perfectly valid, the Court went on to say, [T]hat the Paragraph 2 of the Tenth Schedule of the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected members of the Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended. The provisions of Paragraph 2 do not violate any rights or freedom under Articles 105 and 195 of the Constitution. Other provisions regarding disqualifications under this head are contained in paragraph 3 (that was deleted by the 2004 Amendment to the Constitution), which provided for a case wherein a split takes place in the party. A number of cases have been decided on this subject. Paragraph 4 dealt with a disqualification in cases of merger whereas paragraph 5 sets out certain exemptions in favour of the Speaker or the Chairman of the Houses of Legislature. Other provisions of Schedule X Having set out what would entail a disqualification from the House, the Schedule now goes on to clarify, in paragraph 6, who the deciding authority would be in case a question regarding the incurrence of a disqualification. It says that any such question would be decided by the Speaker or the Chairman of the House and his decision in this regard would be final. An interesting question that the Court was called upon to decide with regard to this provision was whether the proceeding before the Speaker in the nature of a judicial one, and whether the office of a Speaker in this regard could be termed as a Tribunal? Answering both the questions in the affirmative the court said, It is therefore inappropriate to claim that the determinative jurisdiction of the Speaker of the Chairman in the tenth

Schedule is not a judicial power and is within the non-justiciable legislative area.

Speaking about how the Speakers authority could be a Tribunal, the Court elaborated thus, Where there is a lis -an affirmation by one

party and denial by another-and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is an exercise of judicial power. That authority is called a Tribunal, if it does not have all the trappings of a Court. In this instant case, the Court has taken recourse to many previous judgments and commentaries to explain this
point.

In Mannadi Satyanarayan Reddy v Andhra Pradesh Legislative Assembly and Ors , the Andhra Pradesh High Court had to decide, inter alia, the question of whether the Speaker, while exercising jurisdiction, can decide whether or not a Legislator belongs to a particular Legislature party. Holding that a Speaker could indeed decide thus, the Court said that if, in deciding the question of a members disqualification depended upon an answer to which political party had set such member up and whether or not he belonged to such party, he should be allowed to decide such question. In the words of the Court, there is nothing in paragraphs 1, 2, and 6 of the Tenth

Schedule which fetters exercise of jurisdiction by the Speaker to decide this question.

Paragraph 7 of the Schedule bars the jurisdiction of courts in any matter connection with the disqualification of a member of House under this Schedule. Of course, this does not exclude Courts intervention under articles 32, 226, 227, 136 under the Constitution. This position was made very clear by the Supreme Court inKihoto Hollohans case. Citing various authorities, the court analyzed the meaning of the word final in the context of such clauses and said, There is authority against the acceptability of the arguments that the word

final occurring in paragraph 6 (1) has the effect of excluding the jurisdiction of the courts in articles 136, 226, 227.

The final provision in this legislation gives the Speakers of the House to make rules for giving effect to any provision contained in the Schedule. In pursuance of this power, the states of Goa, Maharashtra, Gujarat, Haryana, Bihar, Kerala, Karnataka and others and also the Houses of the Parliament, both the Rajya Sabha and Lok Sabha have made rules in this regard. These Houses would be bound by the rules contained in the Schedules as also the ones that have been enacted specially for them. Conclusion The introduction of Schedule X in the Constitution attempted to bring in a comprehensive legislation that would assail the menace of defection. While the law has succeeded in this aspect to a reasonable degree, there were certain ambiguities. The Courts of the land have done a fair job in expounding the stance by applying the law to particular facts and circumstances. Nevertheless, very few general propositions have been laid down which have a universal application. Thus, there seems to be considerable scope for judicial interpretation, one that may give further clarity on the law and may bring in a wider range of cases within the umbrella of this legislation.
JENNA NARAYAN is an Associate with Paras Kuhad & Associates at its Mumbai office.

REFERENCES
Added by the Constitution (Fifty-Second Amendment) Act, 1985, S. 6 (w.e.f 1-3-1985) http://www.thefreedictionary.com/defection Advanced Law Lexicon, P. Ramantha Aiyer, 3rd Edition, 2005. 1992 Supp (2) SCC 651. (1) Subject to the provisions of paragraphs 4 and 5, a member if a House belonging to any political party shall be disqualified for being a member of the Housea) if he has voluntarily given up his membership of such political party b) if he votes of abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political; party, person or authority within fifteen days from the date of such voting or abstention. Explanation:- For the purposes of this sub-paragraph, a) an elected member of a House shall be deemed to belong to the political party, if ay, by which he was set up as a candidate for election as such member; b) a nominated member of a House shall,i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party; ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188. 2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election. 3) A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99, or, as the case may be, article 188. 4) Notwithstanding anything contained in the foregoing provisions of their paragraph, a person who, on the commencement of the Constitution (Fifty-second Amendment) Act, 1985, is a member of a House (whether elected or nominated as such) shall,i) where he was a member of political party immediately before such commencement, be deemed, for the purposes of sub-paragraph (1) of this paragraph, to have been elected as a member of such House as a candidate set up by such political party; ii) in any other case, be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of sub-paragraph (2) of this paragraph or, as the case may be, be deemed to be a nominated member of the House for the purposes of sub-paragraph (1) of this paragraph 1994 Supp (2) SCC 641 para 11 (2007) 4 SCC 270, para 48 1992 Supp (2) SCC 651 Ibid, Para 34 Article 105 speaks about the powers, privileges etc of the House of Parliament and of the members and committees thereof and article 194 sets out the powers, privileges etc of the Houses of Legislatures and the members and committees thereof. Ibid, Para 53

See Kibitz Hollohan v Zachillhu (ibid) pares 94-100 Ibid, Para 94 2009 (3) ALT 324 Article 32 deals with writ jurisdiction of the Supreme Court, articles 226,227 relates to the writ jurisdiction as can be exercised by the High Court and art.136 provides provisions relating to Special Leave to Appeal by the Supreme Court. Supra, Para 85

Schedule X Of Our Indian Constitution- A Myth Or A Reality? Our Indian Bureaucratic and Legislative system is running through our politicians, politicians comes from the word Politics. The word politics comes from the Greek word Politika which means of, for, or relating to citizens, but our Indian Politics according to a layman is a bog where a person once enters never comes out. Politicians make promises but never fulfill those promises; they work on filling their pockets and making life of people miserable. Earlier after the Independence, it was very easy for a legislative elected member to hop around from one party to another to fulfill their ambitions, but this led to many Governments toppling around, keeping in mind all this our legislatures made an amendment in the year 1985 which was our 52nd Amendment Act and passed a law called Anti-defection law which added a new schedule to our Constitution, i.e., X Schedule. Anti-defection law, its main intent is to combat the evil of political defections. This law was passed soon after Lt. Shri. Rajiv Gandhi became the Prime Minister of the country with a massive mandate. This law would not have been passed if there had been no Rajiv Gandhi and his government with an unparalleled massive majority. This law was passed so that it curbs the political deflections but the ever increasing hunger of our legislatures and with our excellent legal fraternity it was not a difficult task to find some loopholes in this law and they used it to their interest. What is Anti-defection law? Schedule X of our Constitution provides for Anti-defection law, it is as follows:1. Interpretation.In this Schedule, unless the context otherwise requires, ( a ) " House " means e i t h e r H o u s e o f P a r l i a m e n t o r t h e L e g i s l a t i v e A s s e m b l y o r , a s t h e c a s e m a y b e , e i t h e r H o u s e o f t h e L e g i s l a t u r e o f a State ; ( b ) " l e g i s l a t u r e p a r t y " , i n r e l a t i o n t o a m e m b e r o f a H o u s e b e l o n g i n g t o a n y political p a r t y i n a c c o r d a n c e wi t h t h e p r o v i s i o n s o f paragraph 2 o r p a r a g r a p h 4 , m e a n s t h e g r o u p c o nsistingofallthemembersofthatHouseforthetimebeingbelongingtothatpolitic alpartyinaccordancewiththesaidprovisions; (c)"originalpoliticalparty",inrelationtoamemberofaHouse,meansthe politicalpartytowhichhebelongsforthepurposesofsub-paragraph(1)of paragraph 2 ; ( d ) " paragraph " means a paragraph of t h i s Schedule . 2. Disqualification on ground of defection.(1) Subject to the provisions of [Paragraphs 4 and 5], a member of a House belonging to any political party shall be disqualified for being a member of the House ( a ) if he has voluntarily given up his membership of such political party ; or ( b ) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf , without obtaining , in either case , the prior permission of such political party , person or authority and such voting or abstention has not been condoned by such political party , person or authority within fifteen days from the date of such voting or abstention . Explanation.For the purposes of this sub-paragraph, ( a ) an elected member of a House shall be deemed to belong to the political party, if any , by which he was set up as a candidate for election as such member ;

( b ) a nominated member of a House shall , (i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party; (ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188. (2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election (3) A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after Complying with the requirements of article 99 or, as the case may be, article 188. (4) Notwithstanding anything contained in the foregoing provisions of this paragraph, a person who, on the commencement of the Constitution (Fifty-second Amendment) Act, 1985, is a member of a House (whether elected or nominated as such) shall, (i) where he was a member of political party immediately before such commencement , be deemed , for the purposes of sub-paragraph (1) of this paragraph , to have been elected as a member of such House as a candidate set up by such political party ; (ii) in any other case , be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of sub-paragraph (2) of this paragraph or , as the case may be , be deemed to be a nominated member of the House for the purposes of sub-paragraph (3) of this paragraph . ***** 4. Disqualification on ground of defection not to apply in case of merger.(1) A member of a House shall not be disqualified under sub-paragraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party (a) have become members of such other political party or , as the case may be, of a new political party formed by such merger ; or ( b ) have not accepted the merger and opted to function as a separate group, and from the time of such merger , such other political party or new political party or group , as the case may be , shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph ( 1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph . (2) For the purposes of sub-paragraph (1) of this paragraph , the merger of the original political party of a member of a House shall be deemed to have taken place if , and only if , not less than two - thirds of the members of the legislature party concerned have agreed to such merger . 5. Exemption , Notwithstanding anything contained in this 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 Council of a State or the Speaker or the Deputy Speaker of the Legislative Assembly of a State , shall not be disqualified under this Schedule,

( a ) 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 ; or ( b ) if he , having given up by reason of his election to such office his membership of the political party to which he belonged immediately before such election , rejoins such political party after he ceases to hold such office . 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 of courts.notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule. 8. Rules.(1) Subject to the provisions of sub-paragraph (2) of this paragraph, the Chairman or the Speaker of a House may make rules for giving effect to the provisions of this Schedule, and in particular, and without prejudice to the generality of the foregoing, such rules may provide for (a)the maintenance of registersorotherrecordsastothepoliticalparties,if any, towhichdifferentmembersoftheHousebelong; (b)thereportwhichtheleaderofalegislaturepartyinrelationtoamembe rof aHou s e s h a l l f u r n i s h w i t h r e g a r d t o a ny c o n d o n a t i o n o f t h e n a t u r e r e f e r r e d t o i n c l a u s e ( b )ofsub-paragraph(1)ofparagraph2inrespectofsuchmember,the timewithinwhi chandtheauthoritytowhomsuchreportshallbefurnished; (c)thereportswhichapoliticalpartyshallfurnishwithregardtoadmissiontosuch politicalpartyofanymembersoftheHouseandtheofficeroftheHousetowhomsuc hreportsshallbefurnished;and ( d ) t h e p r o c e d u r e f o r d e c i d i n g a n y q u e s t io n referred t o i n s u b - p a r a g r a p h ( 1 ) o f p a r a graph6includingtheprocedureforanyinquirywhichmaybe made for the p urpose of deciding such question. (2) The rules made by the Chairman or the Speaker of a House under sub-paragraph (1) of this paragraph shall be laid as soon as may be after they are made before the House for a total period of thirty days which may be comprised in one session or in two or more successive sessions and shall take effect upon the expiry of the said period of thirty days unless they are sooner approved with or without modifications or disapproved by the House and where they are so approved, they shall take effect on such approval in the form in which they were laid or in such modified form, as the case may be, and where they are so disapproved, they shall be of no effect. (3) The Chairman or the Speaker of a House may, without prejudice to the provisions of Article 105 or, as the case may be, article 194, and to any other power which he may have under this Constitution direct that any willful contravention by any person of the rules made under this paragraph may be dealt with in the same manner as a breach of privilege of the House. Advantages and Disadvantages of this law:

This law have its own advantage and disadvantages and it is upon our politicians and our citizens to see how they interpret this law and help in the proper functioning of the democracy. Advantages: Provides stability to the government by preventing shifts of party allegiance. Ensures that candidates elected with party support and on the basis of party manifestoes remain loyal to the party policies. Also promotes party discipline. Disadvantages: By preventing parliamentarians from changing parties, it reduces the accountability of the government to the Parliament and the people. Interferes with the members freedom of speech and expression by curbing dissent against party policies. Disqualifications in Parliament and State Legislatures: According to a statistics from 2004, from 1985 to 2004 there had been 88 complaints of anti-defection made in Parliament and 268 complaints in State Legislatures, out of which 26 were approved in the Parliament and 113 in State Legislatures. Punjab State Legislature tops the chart with 23 disqualifications till 2004 followed by Nagaland with 15 and Goa with 12. The Law Relating to Defection in Other Countries : Anti- defection law is not only practiced in India but it is provided by various other countries like Bangladesh, Kenya, South Africa, etc. Article 70 of the Bangladesh Constitution says a member shall vacate his seat if he resigns from or votes against the directions given by his party. The dispute is referred by the Speaker to the Election Commission. Section 40 of the Kenyan Constitution states that a member who resigns from his party has to vacate his seat. The decision is by the Speaker, and the member may appeal to the High Court. Article 46 of the Singapore Constitution says a member must vacate his seat if he resigns, or is expelled from his party. Article 48 states that Parliament decides on any question relating to the disqualification of a member. Section 47 of the South African Constitution provides that a member loses membership of the Parliament if he ceases to be a member of the party that nominated him. Defect of Defections: Defections numbering more than one-third of the party's strength were considered to be legal. It also provided for the disqualification of individual members defecting from the party through which the member was elected. Even here, the law is open to considerable interpretation, and in some state legislatures the bias of the Speaker leads to confusion, often resulting in litigation. The first challenge to the anti-defection law was made in the Punjab and Haryana high court in Parkash Singh Badal and others v. Union of India and others . One of the grounds on which the law was challenged was that paragraph 2(b) of the Tenth Schedule to the Constitution violated Article 105 of the Constitution, wherein the court held: "So far as the right of a member under Article 105 is concerned, it is not an absolute one and has been made subject to the provisions of the Constitution and the rules and standing orders regulating the procedure of Parliament. The framers of the Constitution, therefore, never intended to confer any absolute right of freedom of speech on a member of the Parliament and the same can be regulated or curtailed by making any constitutional provision, such as the 52nd Amendment. The provisions of Para 2(b) cannot, therefore, be termed as violative of the provisions of Article 105 of the Constitution.(Para 28)." The Constitution (32nd Amendment) Bill 1973 and the Constitution (48th Amendment) Bill 1978 had provisions for decision-making by the president and governors of states in relation to questions on disqualification on ground of defection.

The Constitution (52nd Amendment) Bill 1985 suddenly introduced the provision that questions of disqualification on ground of defection shall be decided by chairmen and speakers of the legislative bodies. The intention was to have speedier adjudicative processes under the Tenth Schedule. This provision was a subject matter of serious debate in both Houses of Parliament when the bill was being passed. The 91st Amendment to the Constitution was enacted in 2003 to tighten the anti-defection provisions of the Tenth Schedule, enacted earlier in 1985. This amendment makes it mandatory for all those switching political sides whether singly or in groups to resign their legislative membership. They now have to seek re-election if they defect and cannot continue in office by engineering a "split" of one-third of members, or in the guise of a "continuing split of a party". The amendment also bars legislators from holding, post-defection, any office of profit. This amendment has thus made defections virtually impossible and is an important step forward in cleansing politics. Irony of the situation today is that the events have nullified the real intent of the dream of Rajiv Gandhi. There have been instances wherein after the declaration of election results, winning candidates have resigned from their membership of the House as well as the party from which they got elected. Immediately, they have joined the political party which has formed the government and have again contested from that political party, which appears to be a fraud and goes against the spirit of the democracy and 52nd constitutional amendment. The ingenious human brain invented innovative ideas to obtain resignations and, in effect, made the anti-defection law a cover to hide their heinous crime. This law excluded the jurisdiction of judiciary from reviewing the decisions of Speakers. This part was held to be unconstitutional by Supreme Court, while it upheld the rest of the law. The Supreme Court was unanimous in holding that paragraph 7 of tenth schedule completely excluded jurisdiction of all courts including the Supreme Court under Article 136 and High Courts under Articles 226 and 227 in respect of any matter connected with the disqualification of the member of a House. The Constitution does not allow the legislature to limit the powers of judiciary. The Speakers/Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review, Supreme Court said. Accordingly the Supreme Court reviewed and struck down the order passed by Speaker of Goa Assembly for disqualifying two members in violation of constitutional mandate contained in paragraph 3 of Tenth Schedule to the Constitution. If we go deep into the impact of this law, it curbs the legislators freedom of opposing the wrong policies, bad leaders and anti-people bills proposed by the High Command in arbitrary and undemocratic manner. This law has given additional dictatorial power to the political party to keep the flock together for an entire term. Jeeth Choudhary in his article Whether Dissent Equals Defection in the Indian Parliament? Concluded: Section 2(b) of the Tenth Schedule puts the Member of Parliament into the straight jacket of obedience to the despotic dictates of the party whips which undermines the democratic spirit. It also violates the principle of representative democracy by empowering the party, and undermining the relationship between elected representatives and their constituents. The anti defection law makes a mockery of parliamentary democracy by marginalizing debates, as the legislators are not allowed to dissent, without being disqualified by the House. Disruptions, rather than substantive debate, become the only form of opposition possible. Parliamentary debate has thereby become largely redundant. Without letting Indian politics degenerate like this, the author supports the proposed amendment so that our politicians can be allowed to publicly and legitimately debate political ideology, negotiate electoral prospect and be persuaded by ideas. The Tenth Schedule has laid down certain norms for keeping the flock of legislators of each party together, and the whips in the hands of legislative party leaders reducing the honble leaders and peoples representatives into shepherds and sheep. As the political parties invented mechanisms to fail this constitutional legislation, the judiciary played a very significant role in upholding the legality and morality of the law besides expanding its horizons to curb most treacherous practice of sudden political disloyalty. This Tenth Schedule whenever used enhancing the burden of courts. The political parties, instead of maintaining standards within the party with effective leadership, are resorting to litigation, begging the courts to decide the political issues, which they failed to

settle. The Karnataka High Court is now engaged with the issue of political leadership of ruling party and manipulative politics of opposition party. This is another unfortunate development. It is not fair to blame judiciary for taking time to decide this tricky question within the frame work of constitution. Neither the Governor nor the Speaker is bona fide. Their moves are not fair. They desperately try to use Constitutional power to settle political scores and wreck political vengeance. In the process they just do not care the peoples will in electing a party to power, for whatever reasons that might be. Dependents and Independents There are a few nominated seats provided by the Constitution in legislative houses. Unless he is dependent, he cannot be nominated as legislator. Hence he can decide his loyalty. A nominated member of a house will be disqualified if he joins any political party after six months. That means law permits him to be loyal or disloyal to nominating party only for six months. (Section 2(3) of Tenth Schedule of Constitution of India) It is wrong to say that there are no provisions for disqualifying independent members for defection from their independent status. If an independent legislator joins a political party he would lose membership. Law mandates an independent legislator to maintain the independent status. He can choose to support any political party but should not attach himself to any. . This decision should be supported by the material placed on record. . In Jagjit Singh v State of Haryana the legislators were elected as Members of Assembly as independent candidates. Later they joined a political party and news of their joining was reported in print as well as electronic media. That fact was allegedly admitted by members in an interview given to a TV news channel. Thereafter those members were disqualified from being members of Assembly by Speaker. It was challenged. The Supreme Court held: when an independent member is alleged to have joined a political party the test to be applied is whether the member has given up his independent character on which he was elected. This has to be determined on appreciation of material on record and conduct of the member of the Speaker. No hard and fast rule can be laid down when the answer is dependent on facts of each case. The substance and spirit of anti-defection provisions are the guiding factors. Disqualification of these members by speaker was upheld, despite the allegation of procedural defect in enquiry. Supreme Court also clarified one more question in Jagjit Singh case: Where a sole member of a political party in an Assembly joins another political party, he can not get protection of paragraph 3 of Tenth Schedule of the Constitution and will be disqualified from being member under paragraph 2 of the Tenth Schedule of the Constitution. Judicial interpretation by Courts : In Kihota Hollohon vs. Zachilhu and Others a question was raised that whether the right to freedom of speech and expression is curtailed by the Tenth Schedule, the Apex Court held that The provisions do not subvert the democratic rights of elected members in Parliament and state legislatures. It does not violate their conscience. The provisions do not violate any right or freedom under Articles 105 and 194 of the Constitution. In the present case few more issues were raised that whether Para 6 & 7 of the X schedule are constitutional or not? The Supreme Court held that to the extend that the provisions grant finality to the orders of the Speaker, the provision is valid. However, the High Courts and the Supreme Court can exercise judicial review under the Constitution. Judicial review should not cover any stage prior to the making of a decision by the Speakers/ Chairmen. Para 7 seeks to change the operation and effect of Articles 136, 226 and 227 of the Constitution which give the High Courts and Supreme Court jurisdiction in such cases. Any such provision is required to be ratified by state legislatures as per Article 368(2). The paragraph was therefore held invalid as it had not been ratified. In another case an issue was raised that whether a member can be said to voluntarily give up his membership of a Party , if he joins another party after being expelled by his old political party, it was held by S.C. that Once a member is expelled, he is treated as an unattached member in the house. However, he continues to be a member of the old party as per the Tenth Schedule. So if he joins a new party after being expelled, he can be said to have voluntarily given up membership of his old party. In another case it was asked whether a Speaker can review his own decision to disqualify a member under the Tenth Schedule, it was held that The Speaker of a House does not have the power to review his own decisions

to disqualify a candidate. Such power is not provided for under the Schedule, and is not implicit in the provisions either. In Ravi S, Nayak v. Union of India two issues were raised that whether the Speaker of a legislature is bound by the directions of a Court and Whether judicial review by courts extends to rules framed under the Tenth Schedule, it was held by the Honble Apex Court that the orders passed by a speaker are subject to judicial review and rules under the Tenth Schedule are procedural in nature. Any violation of those would be a procedural irregularity. Procedural irregularity is immune from judicial scrutiny. A very important issue regarding that when can a court review the Speakers decision making process under the Tenth Schedule was answered by the S.C. in Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya and Ors., it was held that if the Speaker fails to act on a complaint, or accepts claims of splits or mergers without making a finding, he fails to act as per the Tenth Schedule. The Court said that ignoring a petition for disqualification is not merely an irregularity but a violation of constitutional duties. Recent Orders on Disqualification by the Speaker for Defection: Shri Rajeev Ranjan Singh Lalan vs. Dr. P.P. Koya, JD(U), (January 9, 2009). Dr. Koya defied a party whip requiring him to be present in the House and vote against the Motion of Confidence for the government. He claimed he was too ill to be present in the House. The Speaker concluded that Dr. Koya abstained from voting by remaining absent, and the evidence of the illness is not sufficient to conclude that he was so ill that he could not be present in the House. Shri Prabhunath Singh vs. Shri Ram Swaroop Prasad, JD(U), (October 3, 2008). Shri Prasad defied a party whip requiring him to be present in the House. In his defence, he denied that any whip was issued or served. The Speaker held that in view of the fact that there is evidence to show that the whip had been delivered to Shri Prasads house, and had been duly received, it cannot be said that Shri Prasad had no knowledge of the whip. Shri Avtar Singh Bhadana vs. Shri Kuldeep Singh, Indian National Congress, (September 10, 2008). The INC alleged that Shri Bishnoi often dissented from, and criticized the Congress government publicly, and had demanded the dismissal of the government in Haryana. The Speaker held that a person getting elected as a candidate of a political party also gets elected because of the programs of the party. If the person leaves the party, he should go back before the electorate. Shri Rajesh Verma vs. Shri Mohammad Shahid Akhlaque, BSP, (January 27, 2008). It was alleged that Shri Akhlaque joined the Samajwadi Party in a public meeting. It was alleged that at this meeting, Shri Akhlaque had said that at heart, he had always been a member of the SP. The Speaker reasoned that there is no reason why news clippings and stories in the media would be untruthful. The Speaker therefore held Shri Akhlaque disqualified for having voluntarily given up membership of the BSP. The most recent case relating to anti-defection is from the Karnataka State Legislature where B.J.P. is the ruling party and 14 members of B.J.P. and 5 independent members sent a letter of discontent against the Chief Minister. A complaint was made against them and speaker disqualified them from their membership. The case is pending in the S.C. Recommendations of Various Bodies on Reforming the Anti-Defection Law: Dinesh Goswami Committee on electoral reforms (1990) Disqualification should be limited to cases where (a) a member voluntarily gives up the membership of his political party, (b) a member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence. The issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission.

 Law Commission (170th Report, 1999) Provisions which exempt splits and mergers from disqualification to be deleted. Pre-poll electoral fronts should be treated as political parties under anti-defection law. Political parties should limit issuance of whips to instances only when the government is in danger. Election Commission Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission. Constitution Review Commission (2002) Defectors should be barred from holding public office or any remunerative political post for the duration of the remaining term. The vote cast by a defector to topple a government should be treated as invalid. Conclusion: Anti-defection law when it was passed, it aimed at bringing down the political defect but due to ever increasing political dishonesty and corruption this law never evolved properly and now a question have arose that whether achieving the goals of this law a reality or a myth? Politicians found loopholes in this law and used it for their own benefit. It is high time that a watchdog should be provided to our Parliament and there is a need for our constitutional pundits to revisit the issue to combat the menace of corruption and defection which has eroded the values of democracy. Social activists like Anna Hazare and now public figures like Baba Ramdev are doing their best with the help of citizens and using the method of non-violence and satyagrah which were adopted by the father of the nation Mahatma Gandhi to eradicate Britishers from the country and doing their best to make sure that our sleeping government should wake up and start taking steps towards eradicating political corruption and only this will help in achieving the goal which was set while passing this law. This law can also work if certain recommendations mentioned above are taken into consideration and an amendment be made in this law. In the end I would like to quote that a government, for protecting business only, is about a carcass, and soon falls by its own corruption and decay, so the government has a duty to stand and deliver now and not let this law turn into a myth. ******************************** # M.P. Jain, 5th Edition, 2003 Vol. 2 Indian Constitutional Law" target=_blank>Constitutional Law, Pg. 2292 # M.P. Jain, 5th Edition, 2003 Vol. 2 Indian Constitutional Law" target=_blank>Constitutional Law, Pg. 2053 # M.P. Jain, 5th Edition, 2003 Vol. 2 Indian Constitutional Law" target=_blank>Constitutional Law, Pg. 2082 # RTI filed by PRS # AIR 1987 Punjab & Haryana 263 # Ravi S. Naik and Sanjay Bandekar Vs. Union of India AIR 1994 SC 1558 # SSRN Article dated 27 May 2010 # AIR 2007 SC 590 # AIR 1993 SC 412 # G.Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly (1996) 2 SCC 353 # Dr. Kashinath G Jhalmi v. Speaker, Goa Legislative Assembly (1993) 2 SCC 703 # Supra at 3 # (2007) 4 SCC 270] # Bulletin II of the Lok Sabha on different dates as mentioned

G. Viswanathan V. Hon'ble Speaker Tamil Nadu Legislative Assembly, Madras And Anr Equivalent citations: 1996 AIR 1060, 1996 SCC (2) 353 - Bench: Ahmadi A.M. (Cj), Paripoornan, K.S.(J), Citation: 1996 AIR 1060 1996 SCC (2) 353, JT 1996 (1) 607 1996 SCALE (1)531 - Date Of Judgment: 24/01/1996 Ahmadi A.M. (Cj) Special leave granted. The appellants are two members of the Tamil Nadu Legislative Assembly elected in the general elections held in 1991. Both of them were candidates set up by All India Anna Dravida Munnetra Khazhagam (for short `AIADMK'). Mr. Viswanathan was elected from Arcot Legislative Assembly constituency whereas Mr. Azhaagu Thirunavukkarasu was elected from Orathanadu constituency. Both of them were expelled from Orathanadu constituency. Both of them were expelled from AIADMK party of January 8, 1994. On March 16, 1994 the Speaker of Tamil Nadu Legislative Assembly (for short `Assembly') declared the two appellants as `unattached' members of the Assembly. Enclosing certain papers and other documents one Subburethinam, Member of the Assembly, informed the Speaker that both the appellants have joined another (new) party called Maru Malarchi Dravida Munnetra Khazhagam (`MDMK' for short) and hence they should, as per the provisions of law, be disqualified from the membership of the Assembly issued a notice under Section 7 of the Tamil Nadu Assembly (Disqualification on Ground of Defections) Rules, 1986, and called for the comments of the appellants on the representation made by Subburethinam to disqualify them. The appellants filed Write Petitions Nos.3562 and 3563/95 in the High Court of Judicature at Madras and assailed the said notice of the Secretary of the Assembly, dated March 6, 1995. Sivaraj Patil, J. by order dated March 10, 1995 dismissed the writ petitions with the following observations: "Having regard to the law declared by the Apex Court, I do not think it is appropriate to entertain these writ petitions. The Learned Senior Counsel for the Petitioner submitted that on similar questions this court has already entertained two writ petitions by the same petitioners in W.P. No. 5349 of 1994 and 5496 of 1994. When specifically asked, the learned Senior Counsel fairly submitted that as on the date when the earlier writ petitions were filed the petitioners were only unattached members having been expelled from the party and did not join other political party, but as on today, they have joined some other political party. Be that as it may, in the light of the judgment of the Supreme Court aforementioned, I am not inclined to entertain these writ petitions." (Emphasis supplied) Thereafter, the appellants filed representations before the Speaker, Tamil Nadu Legislative Assembly, stating they were "unattached members" of the Assembly and so the provisions of the Tenth Schedule of the Constitution of India regarding disqualifications did not apply to them. They also prayed that the preliminary question as to whether the Tenth Schedule of the Constitution would apply to them, they being unattached members, may be adjudicated in the first instance. The Speaker considered the entire matter in detail and disposed of the same by separate but similar orders dated April 20, 1995. In paragraph 14 thereof, the Speaker stated thus: "14. The admitted relevant facts which are necessary for determination of the issues raised are as follows:A. That the Respondent contested as an official candidate of All India Anna Dravida Munnetra Khazhagam party from (Arcot) Orathandu Constituency. B. That he was expelled from All India Anna Dravida Munnetra Khazhagam party for anti-party activities. C. That he had been declared as an `unattached' member by a ruling dated 16.3.1994 as per the convention and not as per the Tenth Schedule or the relevant rules made by that Act. D. That he had joined another political party, viz., Marumalarchi Dravida Munnetra Khazhagam." Discussing the matter in detail, the Speaker construed, paragraphs 2(1), 2(2) and Explanation (a) to subparagraph (1) of paragraph 2 of the Tenth Schedule and held that if a person is set up as a candidate for election by a political party and gets elected, he must be deemed always to belong to the same party from which he was elected and if he joins another political party, it would amount to voluntarily giving up his membership of such political party and will become subject to disqualification under sub-paragraph (1)(a). In the light of the admitted facts and the view of law held by him, particularly in view of the fact that the appellants had not denied in their explanation that they had joined a new party, the Speaker in paragraph 20 of the said order, entered the following findings: "1. that he got elected to the Tamil Nadu Legislative Assembly as a candidate set up by a political party (viz.) All India Anna Dravida Munnetra Khazhagam (A.I.A.D.M.K.), 2. that for the purpose of Tenth Schedule, he shall be deemed to belong to the Political Party, i.e., All India Anna Dravida Munnetra Khazhagam (A.I.A.D.M.K.) in accordance with the explanatory note of Sub-para 2(1)(a), though he had been expelled from that party and declared as an `unattached' member by me,

3. that he has joined another Political Party, viz., Marumalarchi Dravida Munnetra Khazhagam, 4. that he has not denied any of the contents (sic) of the petitioner as alleged in the petition, and 5. that he does not come under the purview of the exception, envisaged in Paragraph 3 and 4 of the tenth Schedule." It was held that the appellants had incurred disqualification for being members of the Tamil Nadu Legislative Assembly under Article 191(2) of the Constitution of India read with clause (a) of sub-para (1) of Paragraph 2 of Tenth Schedule and had ceased to be members of the Assembly with immediate effect. The appellants filed writ petitions Nos.6331 and 6332/95 and assailed the aforesaid order of the Speaker dated 20th April, 1995. They also filed CMP Nos. 10261 and 10262/95, praying for the grant of ad interim injuction to restrain the Speaker from giving effect to the aforesaid order. Though initially an order of injunction was passed, the learned Single Judge vacated the injunction by his order dated April 26, 1995 and dismissed the CMPs. Aggrieved by the orders vacating interim injunction, the appellants filed Writ Appeals Nos.559 and 560 of 1995. A Division Bench of the High Court noticing that the writ appellants and the writ petitions raised the same issues, heard them together and disposed them of by a common judgment dated September 29, 1995. The Division Bench saw no merit, whatsoever, in the writ petitions and the writ appeals and dismissed them. It is against the said common judgment of the High Court, that the appellants have filed the present appeals by special leave. We heard Mr. Shanti Bhushan, Senior Counsel, for the appellants and Mr. Soli J. Sorabjee, Senior Counsel, for the respondents. The main thrust of the submissions made by appellants' Counsel was that Paragraph 2(a) of the Tenth Schedule of the Constitution comes into play only to disqualify a member who voluntarily gives up his membership of the political party that had set him up as a candidate, and not when he is expelled from the party and declared "unattached" i.e., not belonging to any political party. Paragraph 2(a) will apply only when a member himself of his own volition gives up his membership of the party. Any member thrown out or expelled from the party that had set him up as a candidate, will not fall within the mischief of paragraph 2 (a). By expulsion, the member thrown out will `cease' to be a member of the party that set him up as a candidate and even if he joins another party thereafter, it will not be a case of `voluntarily' giving up his membership of the political party that had set him up as a candidate for the election. On the other hand, Counsel for the respondents, Mr. Soli J. Sorabjee, submitted that the Tenth Schedule of the Constitution should be interpreted strictly, and keeping in view the mischief sought to be prevented by enacting the law, it is evident that though expulsion by the political party that had set up a person as a candidate by itself may not attract paragraph 2(1)(a), the further act of his joining another party amounts to `voluntarily giving up' the membership of the political party that had set him up as a candidate. Learned Counsel submitted that the deeming provision contained in the explanation should be given full effect and in the light of the finding that the appellants had joined another political party, the High Court was justified in confirming the conclusion of the Speaker that the appellants had voluntarily given up their membership of the political party that had set them up as candidates and had thereby incurred the disqualification for being members of the Assembly under Article 191(2) of the Constitution read with clause (a) of sub-paragraph (1) of paragraph 2 of the Tenth Schedule. Before we proceed further, we may notice the relevant provisions of the Constitution. Article 190 deals with `vacation of seats' and Article 191 speaks of `Disqualifications for membership'. The relevant parts of the said two articles with which we are concerned read as under: "190. (1) ................ (2) ................ (3) If a member of a House of the Legislature of a State (a) becomes subject to any of the disqualifications mentioned in clause (1) of article 191; or ................." "191. (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Counsel of a State (a) ............. (b) ............. (c) ............. (d) ............. (e) if he is so disqualified by or under any law made by Parliament -

(2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule." Tenth Schedule "1. Interpretation. In this Schedule, unless the context otherwise requires, - (a) "House" means either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State; (b) "legislative party", in relation to a member of a House belonging to any political party in accordance with the provisions of paragraph 2 or paragraph 3 or, as the case may be, paragraph 4, means the group consisting of all the members of the House for the time being belonging to that political party in accordance with the said provisions; (c) "original political party", in relation to a member of a House, means the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2; (d) "paragraph" means a paragraph of this Schedule. 2. Disqualification on ground of defection. (1) Subject to the provisions of paragraphs 3, 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House (a) if he has voluntarily given up his membership of such political party; or (b) .......... Explanation. For the purposes of this sub-paragraph, (a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member, (b) a nominated member of a House shall, (i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party; (ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188. (2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election. (3) A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188." The crucial point raised in these appeals centres round the interpretation to be placed on paragraph 2(1)(a) read with the explanation thereto of the Tenth Schedule. Does a member of a House, belonging to a political party, become disqualified as having voluntarily given up his membership of such political party on his joining another political party after his expulsion from the former? The legislative background for enacting the law affords a key for an understanding of the relevant provisions. What impelled the Parliament to insert the Tenth Schedule can be seen from the Statement of Objects and Reasons appended to the Bill which ultimately resulted in the Constitution (Fifty-Second Amendment) Act, 1985, quoted in the decision, Kihoto Hollohan v. Zachillhu and Others, 1992 Supp. (2) SCC 651 (668). It is to the following effect: "The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the government intended to introduce in the current session of Parliament an anti- defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance." When the constitutionality of the above provisions was challenged, this Court, after referring to paragraphs 2, 3 and 4 of the Tenth Schedule of the Constitution stated in Kihoto Hollohan (supra), as under: "These provisions in the Tenth Schedule give recognition to the role of political parties in the political process. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of paragraph 2(1)(a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his membership of the legislature and go back before the electorate. The same yardstick is applied to a person who is elected as an Independent candidate and wishes to join a political party after the election." (Emphasis supplied)

The scope of the legal fiction enacted in the explanation (a) to paragraph (2)(1) of the Tenth Schedule assumes importance in this context. By the decision of this Court it is fairly well settled that a deeming provision is an admission of the non-existence of the fact deemed. The Legislature is competent to enact a deeming provision for the purpose of assuming the existence of a fact which does not even exist. It means that the Courts must assume that such a state of affairs exists as real, and should imagine as real the consequences and incidents which inevitably flow therefrom, and give effect to the same. The deeming provision may be intended to enlarge the meaning of a particular word or to include matters which otherwise may or may not fall within the main provision. the law law laid down in this regard in East End Dwellings Co. Ltd. case (1952 AC 109 + 1951 (2) All. E.R. 587) has been followed by this Court in a number of cases, beginning from State of Bombay v. Pandurang (AIR 1953 SC 244) and ending with a recent decision of a three Judge Bench in M. Venugopal v. Divisional Manager (1994 (2) SCC 323). N.P. Singh, J., speaking for the Bench, stated the law thus at page 329: "The effect of a deeming clause is well- known. Legislature can introduce a statutory fiction and courts have to proceed on the assumption that such state of affairs exists on the relevant date. In this connection, one is often reminded of what was said by Lord Asquith in the case of East End Dwellings Co. Ltd. V. Finsbury Borough Council that when one is bidden to treat an imaginary state of affairs as real, he must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which inevitably have flowed from it - one must not permit his "imagination to boggle" when it comes to the inevitably corollaries of that state of affairs." It appears that since the explanation to paragraph 2(1) of the Tenth Schedule provides that an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member, such person so set up as a candidate and elected as a member, shall continue to belong to that party. Even if such a member is thrown out or expelled from the party, for the purposes of the Tenth Schedule he will not cease to be a member of the political party that had set him up as a candidate for the election. He will continue to belong to that political party even if he is treated as `unattached'. The further question is when does a person `voluntarily give up' his membership of such political party, as provided in paragraph 2(1)(a)? The act of voluntarily giving up the membership of the political party may be either express or implied. When a person who has been thrown out or expelled from the party which set him up as sa candidate and got elected, joins another (new) party, it will certainly amount to his voluntarily giving up the membership of the political party which had set him up as a candidate for election as such member. We are of the view that labelling of a member as `unattached' finds no place nor has any recognition in the Tenth Schedule. It appears to us that the classification of the members in the Tenth Schedule proceeds only on the manner of their entry into the House, (1) one who has been elected on his being set up by a political party as a candidate for election as such member; (2) one who has been elected as a member otherwise than as a candidate set up by any political party - usually referred to as an `independent' candidate in an election; and (3) one who has been nominated. The categories mentioned are exhaustive. In our view, it is impermissible to invent a new category or clause other than the one envisaged or provided in the Tenth Schedule of the Constitution. If a person belonging to a political party that had set him up as a candidate, gets elected to the House and thereafter joins another political party for whatever reasons, either because of his expulsion from the party or otherwise, he voluntarily gives up his membership of the political party and incurs the disqualification. Being treated as `unattached' is a matter of mere convenience outside the Tenth Schedule and does not alter the fact to be assumed under the explanation to paragraph 2(1). Such an arrangement and labelling has no legal bearing so far as the Tenth Schedule is concerned. If the contention urged on behalf of the appellant is accepted it will defeat the very purpose for which the Tenth Schedule came to be introduced and would fail to suppress the mischief, namely, breach of faith of the electorate. We are, therefore, of the opinion that the deeming fiction must be given full effect for otherwise the expelled member would escape the rigor of the law which was intended to curb the evil of defections which had polluted our democratic polity. Mr. Shanti Bhushan laid stress on paragraph 1(b) of the Tenth Schedule and contended that the Legislative Party in relation to a member of a House belonging to any political party means the group consisting of all the members of that House for the time being belonging to that political party, and so understood, the appellants who were thrown out or expelled from the party, did not belong to that political party nor will they be bound by any whip given by that party, and so, they are unattached members who did not belong to any political party, and in such a situation the deeming provision in sub-paragraph (a) of the explanation to paragraph 2(1) will not apply. We are afraid it is nothing but begging the question. Paragraph 1(b) cannot be read in isolation. It should be read along with paragraphs 2,3 and

4. Paragraph 1(b) in referring to the Legislative Party in relation to a member of a House belonging to any political party, refers to the provisions of paragraphs 2,3 and 4, as the case may be, to mean the group consisting of all members of that House for the time being belonging to that political party in accordance with the said provisions, namely, paragraphs 2,3 and 4, as the case may be. Paragraph 2(1) read with the explanation clearly points out that an elected member shall continue to belong to that political party by which he was set up as a candidate for election as such member. This is so notwithstanding that he was thrown out or expelled from that party. That is a matter between the member and his party and has nothing to do so far as deeming clause in the Tenth Schedule is concerned. The action of a political party qua its member has no significance and cannot impinge on the fiction of law under the Tenth Schedule. We reject the plea solely based on clause 1(b) of the Tenth Schedule. Our Attention was drawn to the decision of this Court in Ravi S. Naik v. Union of India and Others, (1994) Supp. (2) SCC 641. In the said decision, paragraph 2(1)(a) of the Tenth S schedule of the Constitution was construed and it is observed at page 649 thus: "The said paragraph provides for disqualification of a member of a House belonging to a political party "if he has voluntarily given up his membership of such political party." The words "voluntarily given up his membership" are not synonymous with "resignation" and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs." (Emphasis supplied) If he of his own volition joins another political party, as the appellants did in the present case, he must be taken to have acquired the membership of another political party by abandoning the political party to which he belonged or must be deemed to have belonged under the explanation to paragraph 2(1) of the Tenth Schedule. Of course, courts would insist on evidence which is positive, reliable and unequivocal. For the aforesaid reasons, We hold that the judgment of the High Court declining to interfere with the order of the disqualification passed by the Speaker, Tamil Nadu Legislative Assembly, calls for no interference in these appeals. The appeals are dismissed with costs. Each appellant to pay the costs in separate sets.

Shri Kihota Hollohon vs Mr. Zachilhu And Others Equivalent citations: AIR 1993 SC 412, JT 1992 (1) SC 600, 1992 (1) SCALE 338 - Bench: L M Sharma, M V Verma, K J Reddy, S Agrawal - 18 February, 1992 M.N. Venkatachaliah, J. 1. In these petitions the constitutional validity of the Tenth Schedule of the Constitution introduced by the Constitution (Fifty-Second Amendment) Act, 1985, is assailed. These two cases were amongst a batch of Writ Petitions, Transfer Petitions, Civil Appeals, Special Leave Petitions and other similar and connected matters raising common questions which were all heard together. On 12.11.1991 we made an order pronouncing our findings and conclusions upholding the constitutional validity of the amendment and of the provisions of the Tenth Schedule, except for Paragraph 7 which was declared invalid for want of ratification in terms of and as required by the proviso to Article 368(2) of the Constitution. In the order dated 12.11.1991 our conclusions were set out and we indicated that the reasons for the conclusions would follow later. The reasons for the conclusions are now set out. 2. This order is made in Transfer Petition No. 40 of 1991 and in Writ Petition No. 17 of 1991. We have not gone into the factual controversies raised in the Writ-Petition before the Gauhati High Court in Rule No. 2421 of 1990 from which Transfer Petition No. 40 of 1991 arises. Indeed, in the order of 12th November, 1991 itself the said Writ Petition was remitted to the High Court for its disposal in accordance with law. 3. Shri F.S. Nariman, Shri Shanti Bhushan, Shri M.C. Bhandare, Shri Kapil Sibal, Shri Sharma and Shri Bhim Singh, learned Counsel addressed arguments in support of the petitions. Learned Attorney-General, Shri Soli J. Sorabjee, Shri R.K. Garg and Shri Santhosh Hegde sought to support the constitutional validity of the amendment. Shri Ram Jethmalani has attacked the validity of the amendment for the same reasons as put forward by Shri Sharma. 4. Before we proceed to record our reasons for the conclusions reached in our order dated 12th November, 1991, on the contentions raised and argued, it is necessary to have a brief look at the provisions of the Tenth Schedule. The Statement of Objects and Reasons appended to the Bill which was adopted as the Constitution (Fifty-Second Amendment) Act, 1985 says: The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance. On December 8, 1967, the Lok Sabha had passed an unanimous Resolution in terms following: a high-level Committee consisting of representatives of political parties and constitutional experts be set up immediately by Government to consider the problem of legislators changing their allegiance from one party to another and their frequent crossing of the floor in all its aspects and make recommendations in this regard." The said Committee known as the "Committee on Defections" in its report dated January 7, 1969, inter-alia, observed: Following the Fourth General Election, in the short period between March 1967 and February, 1968, the Indian political scene was characterised by numerous instances of change of party allegiance by legislators in several States. Compared to roughly 542 cases in the entire period between the First and Fourth General Election, at least 438 defections occurred in these 12 months alone. Among Independents, 157 out of a total of 376 elected joined various parties in this period. That the lure of office played a dominant part in decisions of legislators to defect was obvious from the fact that out of 210 defecting legislators of the States of Bihar, Haryana, Madhya Pradesh, Punjab, Rajasthan, Uttar Pradesh and West Bengal, 116 were included in the Council of Ministers which they helped to bring into being by defections. The other disturbing features of this phenomenon were: multiple acts of defections by the same person or set of persons (Haryana affording a conspicuous example); few resignations of the membership of the legislature or explanations by individual defectors, indifference on the part of defectors to political proprieties, constituency preference or public opinion; and the belief held by the people and expressed in the press that corruption and bribery were behind some of these defections [Emphasis supplied] The Committee on Defections recommended that a defector should be debarred for a period of one year or till such time as he resigned his seat and got himself re-elected from appointment to the office of a Minister including Deputy Minister or Speaker or Deputy Speaker, or any post carrying salaries or allowances to be paid from the Consolidated Fund of India or of the State or from the funds of Government Undertakings in public sector in addition to those to which the defector might be entitled as legislator. The Committee on Defections could not,

however, reach an agreed conclusion in the matter of disqualifying a defector from continuing to be a Member of Parliament/State Legislator. Keeping in view the recommendations of the Committee on Defections, the Constitution (Thirty-Second Amendment) Bill, 1973 was introduced in the Lok Sabha on May 16, 1973. It provided for disqualifying a Member from continuing as a Member of either House of Parliament or the State Legislature on his voluntarily giving up his membership of the political party by which he was set up as a candidate at such election or of which he became a Member after such election, or on his voting or abstaining from voting in such House contrary to any direction issued by such political party or by any person or authority authorised by it in this behalf without obtaining prior permission of such party, person or authority. The said Bill, however, lapsed on account of dissolution of the House. Thereafter, the Constitution (Forty-eighth Amendment) Bill, 1979 was introduced in the Lok Sabha which also contained similar provisions for disqualification on the ground of defection. This Bill also lapsed and it was followed by the Bill which was enacted into the Constitution (Fifty-Second Amendment) Act, 1985. 5. This brings to the fore the object underlying the provisions in the Tenth Schedule. The object is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy. The remedy proposed is to disqualify the Member of either House of Parliament or of the State Legislature who is found to have defected from continuing as a Member of the House. The grounds of disqualification are specified in Paragraph 2 of the Tenth Schedule. Paragraph 2(1) relates to a Member of the House belonging to a political party by which he was set up as a candidate at the election. Under Paragraph 2(1)(a) such a Member would incur disqualification if he voluntarily gives up his membership of such political party. Under Clause (b) he would incur the disqualification if he votes or abstains from voting in the House contrary to "any direction" issued by the political party to which he belongs or by any person or authority authorised by it in this behalf without obtaining, in either case, prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. This sub para would also apply to a nominated Member who is a Member of a political party on the date of his nomination as such Member or who joins a political party within six months of his taking oath. Paragraph 2(2) deals with a Member who has been elected otherwise than as a candidate set up by any political party and would incur the disqualification if he joins any political party after such election. A nominated Member of a House would incur his disqualification under sub para (3) if he joins any political party after the expiry of six months from the date of which he takes his seat. 6. Paragraphs 3 and 4 of the Tenth Schedule, however, exclude the applicability of the provisions for disqualification under para 2 in cases of "split" in the original political party or merger of the original political party with another political party. These provisions in the Tenth Schedule give recognition to the role of political parties in the political process. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of Paragraph 2(1)(a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his Membership of the legislature and go back before the electorate. The same yard stick is applied to a person who is elected as an Independent candidate and wishes to join a political party after the election. Paragraph 2(1)(b) deals with a slightly different situation i.e., a variant where dissent becomes defection. If a Member while remaining a Member of the political party which had set him up as a candidate at the election, votes or abstains from voting contrary to "any direction'' issued by the political party to which he belongs or by any person or authority authorised by it in this behalf he incurs the disqualification. In other words, it deals with a Member who expresses his dissent from the stand of the political party to which he belongs by voting or abstaining from voting in the House contrary to the direction issued by the political party. Paragraph 6 of the Tenth Schedule reads: 6(1) If any question arises as to whether a Member of a House has become subject to disqualification under this Schedule the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such house and his decision shall be final: Provided that where the question which has arisen is as to whether the Chairman or the . Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such Member of the House as the House may elect in this behalf and his decision shall be final.

(2) All proceedings under sub-Paragraph (1) of this Paragraph in relation to any question as to disqualification of a Member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State within the. meaning of Article 212." Paragraph 7 says: 7. Bar of jurisdiction of courts: Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a Member of a House under this Schedule. 7. The challenge to the constitutional validity of the Amendment which introduces the Tenth Schedule is sought to be sustained on many grounds. It is urged that the constitutional Amendment introducing Paragraph 7 of the Tenth Schedule, in terms and in effect, seeks to make a change in Chapter IV of Part V of the Constitution in that it denudes the jurisdiction of the Supreme Court under Article 136 of the Constitution of India and in Chapter V of Part VI in that it takes away the jurisdiction of the High Courts under Article 226 and that, therefore, the legislative Bill, before presentation to the President for assent, would require to be ratified by the Legislature of not less than one half of the States by resolution to that effect. In view of the admitted position that no such ratification was obtained for the Bill, it is contended, the whole Amending Bill -- not merely Paragraph 7 - fails and the amendment merely remains an abortive attempt to bring about an amendment. It is further contended that the very concept of disqualification for defection is violative of the fundamental values and principles underlying Parliamentary democracy and violates an elected representative's freedom of speech, right to dissent and freedom of conscience and is, therefore, unconstitutional as destructive of a basic feature of the Indian Constitution. It is also urged that the investiture in the Speaker or the Chairman of the power to adjudicate disputed defections would violate an important incident of another basic feature of the Constitution, viz., Parliamentary democracy. It is contended that an independent, fair and impartial machinery for resolution of electoral disputes is an essential and important incident of democracy and that the vesting of the power of adjudication in the Speaker or the Chairman -- who, in the Indian Parliamentary system are nominees of political parties and are not obliged to resign their party affiliations after election - is violative of this requirement. It is alternatively contended that if it is to be held that the amendment does not attract the proviso to Article 368(2), then Paragraph 7 in so far as it takes away the power of judicial review, which, in itself, is one of the basic features of the Constitution is liable to be struck down. 8. There are certain other contentions which, upon a closer examination, raise issues more of construction than constitutionality. For instance, some arguments were expended on the exact connotations of a "split" as distinct from a "defection" within the meaning of Paragraph 3. Then again, it was urged that under Paragraph 2(b) the expression "any direction" is so wide that even a direction, which if given effect to and implemented might bring about a result which nay itself be obnoxious to and violative of constitutional ideals and values would be a source of disqualification. These are, indeed, matters of construction as to how, in the context in which the occasion for the introduction of the Tenth Schedule arose and the high purpose it is intended to serve, the expression "any direction'' occurring in Paragraph 2(b) is to be understood. Indeed, in one of the decisions cited before us Prakash Singh Badal and Ors. v. Union of India and Ors. this aspect has been considered by the High Court. The decision was relied upon before us. We shall examine it presently. 9. Supporting the constitutionality of the Amendment, respondents urge that the Tenth Schedule creates a nonjusticiable constitutional area dealing with certain complex political issues which have no strict adjudicatory disposition. New rights and obligations are created for the first time inflate by the Constitution and the Constitution itself has envisaged a distinct constitutional machinery for the resolution of those disputes. These rights, obligations and remedies, it is urged, which are in their very nature and innate complexities are in political thickets and are not amenable to judicial processes and the Tenth Schedule has merely recognised this complex character of the issues and that the exclusion of this area is constitutionally preserved by imparting a finality to the decisions of the Speaker or the Chairman and by deeming the whole proceedings as proceedings within Parliament or within the Houses of Legislature of the States envisaged in Articles 122 and 212, respectively, and further by expressly excluding the Courts' jurisdiction under Paragraph 7. Indeed, in constitutional and legal theory, it is urged, there is really no ouster of jurisdiction of Courts or of Judicial Review as the subject-matter itself by its inherent character and complexities is not amenable to but outside judicial power and that the ouster of jurisdiction under Paragraph 7 is merely a consequential constitutional recognition of the non-amenability of the subject-matter to the judicial power of the State, the corollary of which is that the Speaker or the Chairman, as the case may be, exercising powers under Paragraph 6(1) of the Tenth Schedule function not as a statutory Tribunal but as a part of the State's Legislative Department. It is, therefore, urged that

no question of the ouster of jurisdiction of Courts would at all arise inasmuch as in the first place, having regard to the political nature of the issues, the subject-matter is itself not amenable to judicial power. It is urged that the question in the last analyses pertains to the Constitution of the House and the Legislature is entitled to deal with it exclusively. 10. It is further urged that Judicial Review -- apart from Judicial Review of the legislation as inherent under a written Constitution - is merely a branch of administrative law remedies and is by no means a basic feature of the Constitution and that, therefore, Paragraph 7, being a constitutional provision cannot be invalidated on some general doctrine not found in the Constitution itself. 11. On the contentions raised and urged at the hearing the questions that fall for consideration are the following: (A) The Constitution (Fifty-Second Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule is destructive of the basic structure of the Constitution as it is violative of the fundamental principles of Parliamentary democracy, a basic feature of the Indian constitutionalism and is destructive of the freedom of speech, right to dissent and freedom of conscience as the provisions of the Tenth Schedule seek to penalize and disqualify elected representatives for the exercise of these rights and freedoms which are essential to the sustenance of the system of Parliamentary democracy. (B) Having regard to the legislative history and evolution of the principles underlying the Tenth Schedule, Paragraph 7 thereof in terms and in effect, brings about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India and, therefore, the Bill introducing the amendment attracts the proviso to Article 368(2) of the Constitution and would require to be ratified by the legislative of the States before the Bill is presented for Presidential assent. (C) In view of the admitted non-compliance with the proviso to Article 368(2) not only Paragraph 7 of the Tenth Schedule, but also the entire Bill resulting in the Constitution (Fifty-Second Amendment) Act, 1985, stands vitiated and the purported amendment is abortive and does not in law bring about a valid amendment. Or whether, the effect of such non-compliance invalidates Paragraph 7 alone and the other provisions which, by themselves, do not attract the proviso do not become invalid. (D) That even if the effect of non-ratification by the legislature of the States is to invalidate Paragraph 7 alone, the whole of the Tenth Schedule fails for non-severability. Doctrine of severability, as applied to ordinary statutes to promote their constitutionality, is inapplicable to constitutional Amendments. Even otherwise, having regard to legislative intent and scheme of the Tenth Schedule, the other provisions of the Tenth Schedule, after the severance and excision of Paragraph 7, become truncated, and unworkable and cannot stand and operate independently. The Legislature would not have enacted the Tenth Schedule without Paragraph 7 which forms its heart and core. (E) That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts the immunity under Articles 122 and 212. The Speaker and the Chairman in relation to the exercise of the powers under the Tenth Schedule shall not be subjected to the jurisdiction of any Court. The Tenth Schedule seeks to and does create a new and non-justiciable area of rights, obligations and remedies to be resolved in the exclusive manner envisaged by the Constitution and is not amenable to, but constitutionally immune from curial adjudicative processes. (F) That even if Paragraph 7 erecting a bar on the jurisdiction of Courts is held inoperative, the Courts' jurisdiction is, in any event, barred as Paragraph 6(1) which imparts a constitutional 'finality' to the decision of the Speaker or the Chairman, as the case may be, and that such concept of 'finality' bars examination of the matter by the Courts. (G) The concept of free and fair elections as a necessary concomitant and attribute of democracy which is a basic feature includes an independent impartial machinery for the adjudication of the electoral disputes. The Speaker and the Chairman do not satisfy these incidents of an independent adjudicatory machinery. The investiture of the determinative and adjudicative jurisdiction in the Speaker or the Chairman, as the case may be, would, by itself, vitiate the provision on the ground of reasonable likelihood of bias and lack of impartiality and therefore denies the imperative of an independent adjudicatory machinery. The Speaker and Chairman are elected and hold office on the support of the majority party and are not required to resign their Membership of the political party after their election to the office of the Speaker or Chairman. (H) That even if Paragraph 7 of the Tenth Schedule is held not to bring about a change or affect Articles 136, 226 and 227 of the Constitution, the amendment is unconstitutional as it erodes and destroys judicial review which is one of the basic features of the Constitution. 12. Re: Contention (A):

The Tenth Schedule is part of the Constitution and attracts the same canons of construction as are applicable to the expounding of the fundamental law. One constitutional power is necessarily conditioned by the others as the Constitution is one "coherent document". learned Counsel for the petitioners accordingly say that the Tenth Schedule should be read subject to the basic features of the Constitution. The Tenth Schedule and certain essential incidents of democracy, it is urged, cannot co-exist. In expounding the processes of the fundamental law, the Constitution must be treated as a logical-whole. Westel Woodbury Willoughby in the "Constitutional law of the United States" states: The Constitution is a logical whole, each provision of which is an integral part thereof, and it is, therefore, logically proper, and indeed imperative, to construe one part in the light of the provisions of the other parts. 2nd Edn: Vol. 1 page 65) A constitutional document outlines only broad and general principles meant to endure and be capable of flexible application to changing circumstances - a distinction which differentiates a statute from a Charter under which all statutes are made. Cooley on "Constitutional Limitations:" says: Upon the adoption of an amendment to a constitution, the amendment becomes a part thereof; as much so as if it had been originally incorporated in the Constitution; and it is to be construed accordingly. [8th Edn. Vol. I page 129] 13. In considering the validity of a constitutional amendment the changing and the changed circumstances that compelled the amendment are important criteria. The observations of the U.S. Supreme Court in Maxwell v. Dow 44 Lawyer's Edition 597 at page 605 are worthy of note: ...to read its language in connection with the known condition of affairs out of which the occasion for its adoption may have arisen and then to construe it, if there be therein any doubtful expressions, in a way so far as is reasonably possible, to forward the known purpose or object for which the amendment was adopted.... The Report of the Committee on Defections took note of the unprincipled and unethical defections induced by considerations of personal gains said: ...What was most heartening was the feeling of deep concern over these unhealthy developments in national life on the part of the leaders of political parties themselves. Parliament mirrored this widespread concern.... [page 1] 14. It was strenuously contended by Shri Ram Jethmalani and Shri Sharma that the provisions of the Tenth Schedule constitute a flagrant violation of those fundamental principles and values which are basic to the sustenance of the very system of Parliamentary democracy. The Tenth Schedule, it is urged, negates those very foundational assumptions of Parliamentary democracy; of freedom of speech; of the right to dissent and of the freedom of conscience. It is urged that unprincipled political defections may be an evil, but it will be the beginning of much greater evils if the remedies, graver than the disease itself, are adopted. The Tenth Schedule, they say, seeks to throw away the baby with the bath-water. learned Counsel argue that "crossing the floor", as it has come to be called, mirrors the meanderings of a troubled conscience on issues of political morality and to punish an elected representative for what really amounts to an expression of conscience negates the very democratic principles which the Tenth Schedule is supposed to preserve and sustain. learned Counsel referred to the famous Speech to the Electors of Bristol, 1774, where Edmund Burke reportedly said: It ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unmerited attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions to theirs -- and above all, ever, and in all cases, to prefer their interest to his own. But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living.... Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion. [See: Parliament Functions, Practice & Procedures by JAG Griffith and Michael Ryle 1989 Edn. page 70] 15. Shri Jethmalani and Shri Sharma also relied upon certain observations of Lord Shaw in Amalgamated Society of Railway Servants v. Osborne 1910 A.C.87 to contend that a provision which seeks to attach a liability of disqualification of an elected Member for freely expressing his views on matters of conscience, faith and political belief are indeed restraints on the freedom of speech -- restraints opposed to public policy. In that case a registered trade union framed a rule enabling it to levy contributions on the Members to support its efforts to obtain Parliamentary representation by setting up candidates at elections. It also framed a rule requiring all such

candidates to sign and accept the conditions of the Labour Party and be subject to its whip. The observations in the case relied upon by learned Counsel are those of Lord Shaw of Dunfermline who observed: Take the testing instance: should his view as to right and wrong on a public issue as to the true line of service to the realm, as to the real interests of the constituency which has elected him, or even of the society which pays him, differ from the decision of the parliamentary party and the maintenance by it of its policy, he has come under a contract to place his vote and action into subjection not to his own convictions, but to their decisions. My Lords, I do not think that such a subjection is compatible either with the spirit of our parliamentary Constitution or with that independence and freedom which have hitherto been held to lie at the basis of representative government in the United Kingdom. [Page 111] For the people having reserved to themselves the choice of their representatives, as the fence to their properties, could do it for no other end but that they might always be freely chosen, and so chosen freely act and advise, as the necessity of the commonwealth and the public good should upon examination and mature debate be judged to require.... [Page 113] Still further, in regard to the Member of Parliament himself, he too is to be free; he is not to be the paid mandatory of any man, or organization of men, nor is he entitled to bind himself to subordinate his opinions on public questions to others, for wages, or at the peril of pecuniary loss; and any contract of this character would not be recognized by a Court of law, either for its enforcement or in respect of its breach.... [page 115] It is relevant to observe here that the rule impugned in that case was struck down by the Court of Appeal -- whose decision was upheld by the House of Lords -- on grounds of the Society's competence to make the rule. It was held that the rule was beyond its powers. Lord Shaw, however, was of the view that the impugned rule was opposed to those principles of public policy essential to the working of a representative Government. The view expressed by Lord Shaw was not the decision of the House of Lords in that case. But, the real question is whether under the Indian constitutional scheme is there any immunity from constitutional correctives against a legislatively perceived political evil of unprincipled defections induced by the lure of office and monetary inducements? 16. The points raised in the petitions are, indeed, far-reaching and of no small importance - invoking the 'sense of relevance of constitutionally stated principles to unfamiliar settings'. On the one hand there is the real and imminent threat to the very fabric of Indian democracy posed by certain levels of political behaviour conspicuous by their utter and total disregard of well recognised political proprieties and morality. These trends tend to degrade the tone of political life and, in their wider propensities, are dangerous to and undermine the very survival of the cherished values of democracy. There is the legislative determination through experimental constitutional processes to combat that evil. On the other hand, there are, as in all political and economic experimentations, certain side-effects and fall-out which might affect and hurt even honest dissenters and conscientious objectOrs. These are the usual plus and minus of all areas of experimental legislation. In these areas the distinction between what is constitutionally permissible and what is outside it is marked by a 'hazy gray-line' and it is the Court's duty to identity, "darken and deepen" the demarcating line of constitutionality -- a task in which some element of Judges' own perceptions of the constitutional ideals inevitably participate. There is no single litmus test of constitutionality. Any suggested sure decisive test, might after all furnish a "transitory delusion of certitude" where the "complexities of the strands in the web of constitutionality which the Judge must alone disentangle" do not lend themselves to easy and sure formulations one way or the other. It is here that it becomes difficult to refute the inevitable legislative element in all constitutional adjudications. 17. All distinctions of law -- even Constitutional law - are, in. the ultimate analyses, "matters of degree". At what line the 'white' fades into the 'black' is essentially a legislatively perceived demarcation. In his work "Oliver Wendell Holmes - Free Speech and the Living Constitution" (1991 Edition: New York University Publication) Pohlman says: All distinctions of law, as Holmes never tired of saying, were therefore "matters of degree." Even in the case of constitutional adjudication, in which the issue was whether a particular exercise of power was within or without the legislature's authority, the judge's decision "will depend on a judgment or intuition more subtle than any articulate major premise." As the particular exertion of legislative power approached the hazy gray line separating individual

rights from legislative powers, the judge's assessment of constitutionality became a subtle value judgment. The judge's decision was therefore not deductive, formal, or conceptual in any sense. [page 217] (emphasis supplied) Justice Holmes himself had said: Two widely different cases suggest a general distinction, which is a clear one when stated broadly. But as new cases cluster around the opposite poles, and begin to approach each other, the distinction becomes more difficult to trace; the determination are made one way or the other on a very slight preponderance of feeling, rather than articulate reason; and at last a mathematical line is arrived at by the contact of contrary decisions, which is so far arbitrary that it might equally well have been drawn a little further to the one side or to the other. [Emphasis supplied] [See: "Theory of Torts" American Law Review 7 (1873)] The argument that the constitutional remedies against the immorality and unprincipled chameleon-like changes of political hues in pursuit of power and pelf suffer from something violative of some basic features of the Constitution, perhaps, ignores the essential organic and evolutionary character of a Constitution and its flexibility as a living entity to provide for the demands and compulsions of the changing times and needs. The people of this country were not beguiled into believing that the menace of unethical and unprincipled changes of political affiliations is something which the law is helpless against and is to be endured as a necessary concomitant of freedom of conscience. The onslaughts on their sensibilities by the incessant unethical political defections did not dull their perception of this phenomenon as a canker eating into the vitals of those values that make democracy a living and worth-while faith. This is preeminently an area where judges should defer to legislative perception of and reaction to the . pervasive dangers of unprincipled defections to protect the community.' 'Legislation may begin where an evil begins." Referring to the judicial philosophy of Justice Holems in such areas, Pohlman again says: A number of Holme's famous aphorisms point in the direction that judges should defer when the legislature reflected the pervasive and predominant values and interests of the community. He had, for example, no "practical" criterion to go on except "what the crowd wanted." He suggested, in a humorous vein that his epitaph.... No judge ought to interpret a provision of the Constitution in a way that would prevent the American people from doing what it really wanted to do. If the general consensus was that a certain condition was an "evil" that ought to be corrected by certain means, then the government had the power to do it: "Legislation may begin where an evil begins"; "Constitutional law like other mortal contrivances has to take some changes...." "Some play must be allowed to the joints if the machine is to work." All of these rhetorical flourishes suggest that Holmes deferred to the legislature if and when he thought it accurately mirrored the abiding beliefs, interests, and values of the American public. (emphasis supplied) [See: Justice Oliver Wendell Holmes -- Free Speech and the Living Constitution by H.L. Pohlman 1991 Edn. page 233] 18. Shri Sharma contends that the rights and immunities under Article 105(2) of the Constitution which according to him are placed by judicial decisions even higher than the fundamental-right in Article 19(1)(a), have violated the Tenth Schedule. There are at least two objections to the acceptability of this contention. The first is that the Tenth Schedule does not impinge upon the rights or immunities under Article 105(2). Article 105(2) of the Constitution provides: 105. Powers, privileges, etc., of the Houses of Parliament and of the Members and committees thereof.- (1) ... (2) No Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of cither House of Parliament of any report, paper, votes or proceedings. The freedom of speech of a Member is not an absolute freedom. That apart, the provisions of the Tenth Schedule do not purport to make a Member of a House liable in any 'Court' for anything said or any vote given by him in Parliament. It is difficult to conceive how Article 105(2) is a source of immunity from the consequences of unprincipled floor-crossing. Secondly, on the nature and character of electoral rights this Court in Jyoti Basu and Ors. v. Debi Ghosal and Ors. observed: A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an

election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they arc, and therefore, subject to statutory limitation. [page 326] Democracy is a basic feature of the Constitution. Whether any particular brand or system of Government by itself, has this attribute of a basic feature, as long as the essential characteristics that entitle a system of government to be called democratic are otherwise satisfied is not necessary to be gone into. Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the Constitution. So is the need to protect and sustain the purity of the electoral process. That may take within it the quality, efficacy and adequacy of the machinery for resolution of electoral disputes. From that it does not necessarily follow that the rights and immunities under sub-Article (2) of Article 105 of the Constitution, are elevated into fundamental rights and that the Tenth Schedule would have to be struck down for its inconsistency with Article 105(2) as urged by Shri Sharma. 19. Parliamentary democracy envisages that matters involving implementation of policies of the Government should be discussed by the elected representatives of the people. Debate, discussion and persuasion arc, therefore, the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not unoften the views expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy. At times such an expression of views during the debate in the House may lead to voting or abstinence from voting in the House otherwise than on party lines. But a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles. Any freedom of its Members to vote as they please independently of the political party's declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance -- nay, indeed, its very survival. Intra-party debates are of course a different thing. But a public image of disparate stands by Members of the same political party is not looked upon, in political tradition, as a desirable state of things. Griffith and Ryle on "Parliament, Functions, Practice & Procedure" (1989 Edn. page 119) say; Loyalty to party is the norm, being based on shared beliefs. A divided party is looked on with suspicion by the electorate. It is natural for Members to accept the opinion of their Leaders and Spokesmen on the wide variety of matters on which those Members have no specialist knowledge. Generally Members will accept majority decisions in the party even when they disagree. It is understandable therefore that a Member who rejects the party whip even on a single occasion will attract attention and more criticism than sympathy. To abstain from voting when required by party to vote is to suggest a degree of unreliability. To vote against party is disloyalty. To join with others in abstention or voting with the other side smacks of conspiracy. (emphasis supplied) Clause (b) of sub-para (1) of Paragraph 2 of the Tenth Schedule gives effect to this principle and sentiment by imposing a disqualification on a Member who voles or abstains from voting contrary to "any directions" issued by the political party. The provision, however, recognises two exceptions: one when the Member obtains from the political party prior permission to vote or abstain from voting and the other when the Member has voted without obtaining such permission but his action has been condoned by the political party. This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting contrary to the direction of the party to which he belongs. This, in itself again, may provide a clue to the proper understanding and construction of the expression "Any Direction" in Clause (b) of Paragraph 2(1) -- whether really all directions or whips from the party entail the statutory consequences or whether having regard to the extraordinary nature and sweep of the power and the very serious consequences that flow including the extreme penalty of disqualification the expression should be given a meaning confining its operation to the contexts indicated by the objects and purposes of the Tenth Schedule. We shall deal with this aspect separately. 20. The working of the modern Parliamentary democracy is complex. The area of the inter-sc relationship between the electoral constituencies and their elected representatives has many complex features and overtones. The citizen as the electorate is said to be the political sovereign. As long as regular general elections occur, the electorate remains the arbiter of the ultimate composition of the representative legislative body to which the Government of the day is responsible. There are, of course, larger issues of theoretical and philosophical objections to the

legitimacy of a representative Government which might achieve a majority of the seats but obtains only minority of the electoral votes. It is said that even in England this has been the phenomenon in every general elections in this century except the four in the years 1900, 1918, 1931 and 1935. But in the area of the inter-relationship between the constituency and its elected representative, it is the avowed endeavour of the latter to requite the expectations of his voters. Occasionally, this might conflict with his political obligations to the political party sponsoring him which expects - and exacts in its own way - loyalty to it. This duality of capacity functions are referred to by a learned author thus: The functions of Members are of two kinds and flow from the working of representative government. When a voter at a general election, in that hiatus between parliaments, puts his cross against the name of the candidate he is [most often] consciously performing two functions: seeking to return a particular person to the house of commons as Member for that constituency; and seeking to return to power as the government of the country a group of individuals of the same party as that particular person. The voter votes for a representative and for a government. He may know that the candidate he votes has little chance of being elected.... When a candidate is elected as a Member of the House of Commons, he reflects those two functions of the voter. Whatever other part he may play, he will be a constituency M.P. As such, his job will be to help his constituents as individuals in their dealings with the departments of State. He must listen to their grievances and often seek to persuade those in authority to provide remedies. He must have no regard to the political leanings of his constituents for he represents those who voted against him or who did not vote at all as much as those who voted for him. Even if he strongly disagrees with their complaint he may still seek to represent it, though the degree of enthusiasm with which he does so is likely to be less great. [See: Parliament -- Functions, Practice and Procedures by JAG Griffith and Ryle -- 1989 Edn. page 69]. So far as his own personal views on freedom of conscience are concerned, there may be exceptional occasions when the elected representative finds himself compelled to consider more closely how he should act. Referring to these dilemma the authors say; ... The first is that he may feel that the policy of his party whether it is in office or in opposition, on a particular matter is not one of which he approves. He may think this because of his personal opinions or because of its special consequences for his constituents or outside interests or because it reflects a general position within the party with which he cannot agree. On many occasions, he may support the party despite his disapproval. But occasionally the strength of his feeling will be such that he is obliged to express his opposition either by speaking or by abstaining on a vote or even by voting with the other side. Such opposition will not pass unnoticed and, unless the matter is clearly one of conscience, he will not be popular with the party whips. The second complication is caused by a special aspect of parliamentary conduct which not frequently transcends party lines. Members, who are neither Ministers nor front-bench Opposition spokesmen, do regard as an important part of their function the general scrutiny of Governmental activity. This is particularly the role of select committees which have, as we shall see, gained new prominence since 1979. No doubt, it is superficially paradoxical to see Members on the Government side of the House joining in detailed criticism of the administration and yet voting to maintain that Government in office. But as one prominent critic of government has said, there is nothing inherently contradictory in a Member sustaining the Executive in its power or helping it to overcome opposition at the same time as scrutinising the work of the executive in order both to improve it and to see that power is being exercised in a proper and legitimate fashion. [pages 69 and 70] Speaking of the claims of the political party on its elected Member Rodney Brazier says: "Once returned to the House of Commons the Member's party expects him to be loyal. This is not entirely unfair or improper, for it is the price of the party's label which secured his election. But the question is whether the balance of a Member's obligations has titled too far in favour of the requirements of party. The nonsense that a Whip -- even a three-line whip -- is no more than a summons to attend the House, and that, once there, the Member is completely free to speak and vote as he thinks fit, was still being put about, by the Parliamentary Private Secretary to the Prime Minister, as recently as 1986. No one can honestly believe that. Failure to vote with his party on a three-line whip without permission invites a party reaction. This will range (depending on the circumstances and whether the offence is repeated) from a quiet word from a Whip and appeals to future loyalty, to a ticking-off or a formal reprimand (perhaps from the Chief Whip himself), to any one of a number of threats. The armoury of intimidation includes the menaces that the Member will never get ministerial office, or go on overseas trips sponsored by the party, or be nominated by his party for Commons committee Memberships, or that he might be deprived of his

party's whip in the House, or that he might be reported to his constituency which might wish to consider his behaviour when reselection comes round again.... Does the Member not enjoy the Parliamentary privilege of freedom of speech? How can his speech be free in the face of such party threats? The answer to the inquiring citizen is that the whip system is part of the conventionally established machinery of political organisation in the house, and has been ruled not to infringe a Member's parliamentary privilege in any way. The political parties are only too aware of the utility of such a system, and would fight in the last ditch to keep it." [See; Constitutional Reform - Reshaping the British Political System by Rodney Brazier, 1991 Edn. pages 48 and 49]. The learned author, referring to cases in which an elected Member is seriously unrepresentative of the general constituency opinion, or whose personal behaviour falls below standards acceptable to his constituents commends that what is needed is some additional device to ensure that a Member pays heed to constituents' views. Brazier speaks of the efficacy of device where the constituency can recall its representative. Brazier says: "What sort of conduct might attract the operation of the recall power? First, a Member might have misused his Membership of the House, for example to further his personal financial interests in a manner offensive to his constituents. They might consider that the action taken against him by the house (or, indeed, lack of action) was inadequate... Thirdly, the use of a recall power might be particularly apt when a Member changed his party but declined to resign his seat and fight an immediate by-election. It is not unreasonable to expect a Member who crosses the floor of the House, or who joins a new party, to resubmit himself quickly to the electors who had returned him in different colours. Of course, in all those three areas of controversial conduct the ordinary process of reselection might well result in the Member being dropped as his party's candidate (and obviously would definitely have that result in the third case). But that could only occur when the time for reselection came; and in any event the constituency would still have the Member representing them until the next general election. A cleaner and more timely parting of the ways would be preferable. Sometimes a suspended sentence does not meet the case. [p. 52 and 53.] Indeed, in a sense an anti-defection law is a statutory variant of its moral principle and justification underlying the power of recall. What might justify a provision for recall would justify a provision for disqualification for defection. Unprincipled defection is a political and social evil. It is perceived as such by the legislature. People, apparently, have grown distrustful of the emotive political exultations that such floor-crossings belong to the sacred area of freedom of conscience, or of the right to dissent or of intellectual freedom. The anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct -- whose awkward erosion and grotesque manifestations have been the base of the times -- above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation. We should, we think, defer to this legislature wisdom and perception. The choices in constitutional adjudications quite clearly indicate the need for such deference. "Let the end be legitimate, let it be within the scope of the Constitution and all means which are appropriate, which are adopted to that end..." are constitutional. See Kazurbach v. Morgan: 384 US 641. 21. It was then urged by Shri Jethmalani that the distinction between the conception of "defection" and "split" in the Tenth Schedule is so thin and artificial that the differences on which the distinction rests are indeed an outrageous defiance of logic. Shri Jethmalani used that if floor-crossing by one Member is an evil, then a collective perpetration of it by l/3rd of the elected Members of a party is no better and should be regarded as an aggravated evil both logically and from the part of its aggravated consequences. But the Tenth Schedule, says Shri Jethmalani, employs its own inverse ratiocination and perverse logic to declare that where such evil is perpetrated collectively by an artificially classified group of not less than l/3rd Members of that political party that would not be a "defection" but a permissible "split" or "merger." This exercise to so hold-up the provision as such crass imperfection is performed by Shri Jethmalani with his wonted forensic skill. But we are afraid what was so attractively articulated, on closer examination, is, perhaps, more attractive than sound. The underlying premise in declaring an individual act of defection as forbidden is that lure of office or money could be presumed to have prevailed. Legislature has made this presumption on its own perception and assessment of the extant standards of political proprieties and morality. At the same time legislature envisaged the need to provide for such "floor-crossing" on the basis of honest dissent. That a particular course of conduct commended itself to a number of elected representatives might, in itself, lend credence and reassurance to a presumption of bona fides. The presumptive impropriety of motives progressively weakens according as the numbers sharing the action and there is nothing capricious and arbitrary in this legislative perception of the distinction between 'defection' and 'split'.

Where is the line to be drawn? What number can be said to generate a presumption of bona fides? Here again the Courts have nothing else to go by except the legislative wisdom and, again, as Justice Holmes said, the Court has no practical criterion to go by except "what the crowd wanted". We find no substance in the attack on the statutory distinction between "defection" and "split". Accordingly we hold; that the Paragraph 2 of the Tenth Schedule to the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended. The provisions of Paragraph 2 do not violate any rights or freedom under Articles 105 and 194 of the Constitution. The provisions are salutary and are intended to strengthen the fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections. The contention that the provisions of the Tenth Schedule, even with the exclusion of Paragraph 7, violate the basic structure of the Constitution in that they affect the democratic rights of elected Members and, therefore, of the principles of Parliamentary democracy is unsound and is rejected. 22. Re: Contention (B): The thrust of the point is that paragraph 7 brings about a change in the provisions of Chapter IV of Part V and Chapter V of Part VI of the Constitution and that, therefore, the amending Bill falls within proviso to Article 368(2). We might, at the outset, notice Shri Sibal's submissions on a point of construction of Paragraph 7. Shri Sibal urged that Paragraph 7, properly construed, does not seek to oust the jurisdiction of Courts under Article 136, 226 and 227 but merely prevents an interlocutory intervention or a quia-time action. He urged that the words "in respect of any matters connected with the disqualification of a Member" seek to bar jurisdiction only till the matter is finally decided by the Speaker or Chairman, as the case may be, and does not extend beyond that stage and that in dealing with the dimensions of exclusion of the exercise of judicial power the broad considerations are that provisions which seek to exclude Courts' jurisdiction shall be strictly construed. Any construction which results in denying the Courts is, it is urged, not favoured. Shri Sibal relied upon the following observations of this Court in H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and Ors. v. Union of India : ... The proper forum under our Constitution for determining a legal dispute is the Court which is by training and experience, assisted by properly qualified advocates, fitted to perform that task. A provision which purports to exclude the jurisdiction of the Courts in certain matters and to deprive the aggrieved party of the normal remedy will be strictly construed, for it is a principle not to be whittled down that an aggrieved party will not, unless the jurisdiction of the Courts is by clear enactment or necessary implication barred, be denied his right to seek recourse to the Courts for determination of his rights...." "The Court will avoid imputing to the Legislature an intention to enact a provision which flouts notions of justice and norms of fair-play, unless a contrary intention is manifest from words plain and unambiguous. A provision in a statute will not be construed to defeat its manifest purpose and general values which animate its structure. In an avowedly democratic polity, statutory provisions ensuring the security of fundamental human rights including the right to property will, unless the contrary mandate be precise and unqualified, be construed liberally so as to uphold the right. These rules apply to the interpretation of constitutional and statutory provisions alike. [pages 94 - 95] It is true that the provision which seeks to exclude the jurisdiction of Courts is strictly construed. See also: Mask & Co. v. Secretary of State AIR 1940 P.C. 105. But the rules of construction are attracted where two or more reasonably possible constructions are open on the language of the statute. But, here both on the language of Paragraph 7 and having regard to the legislative evolution of the provision, the legislative intent is plain and manifest. The words ''no Court shall have any jurisdiction in respect of any matter connected with the disqualification of a member'' are of wide import and leave no constructional options. This is reinforced by the legislative history of the anti-defection law. The deliberate and purposed presence of Paragraph 7 is clear from the history of the previous proposed legislations on the subject. A comparison of the provisions of the Constitution (Thirty-second Amendment) Bill, 1973 and the Constitution (Fortyeight Amendment) Bill, 1978, (both of which had lapsed) on the one hand and the Constitution (52nd Amendment) Bill, 1985, would bring-out the avowed and deliberate intent of Paragraph 7 in the Tenth Schedule. The previous Constitution (38th and 48th Amendment) Bills contained similar provisions for disqualification on grounds of defection, but, these Bills did not contain any clause ousting the jurisdiction of the Courts. Determination of disputed disqualifications was left to the Election Commission as in the case of other disqualifications under Articles 102 and 103 in the case of Members of Parliament and Articles 191 and 192 in the case of Members of Legislature

of the States. The Constitution (Fifty-second Amendment) Bill for the first time envisaged the investiture of the power to decide disputes on the Speaker or the Chairman. The purpose of the enactment of Paragraph 7, as the debates in the Houses indicate, was to bar the jurisdiction of the Courts under Articles 136, 226 and 227 of the Constitution of India. Shri Sibal's suggested contention would go against all these over-whelming interpretative criteria apart from its unacceptability on the express language of Paragraph 7. 23. But it was urged that no question of change in Articles 136, 226 and 227 of the Constitution within the meaning of Clause (b) of the proviso to Article 368(2) arises at all in view of the fact that the area of these rights and obligations being constitutionally rendered non-justiciable, there is no judicial review under Articles 136, 226 and 227 at all in the first instance so as, to admit of any idea of its exclusion. Reliance was placed on the decisions of this Court in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar 1952 SCR 89 and Sajjan Singh v. State of Rajasthan . 24. In Sankari Prasad's case, the question was whether the Amendment introducing Articles 31A and 31B in the Constitution required ratification under the said proviso. Repelling this contention it was observed: It will be seen that these articles do not either in terms or in effect seek to make any change in Article 226 or in Articles 132 and 136. Article 31A aims at saving laws providing for the compulsory acquisition by the State of a certain kind of property from the operation of the 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 arc 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 power in such cases. [1982 SCR 89 at 108] In Sajjan Singh's case, a similar contention was raised against the validity of the Constitution (17th Amendment) Act, 1964 by which Article 31A was again amended and 44 statutes were added to the IX Schedule to the Constitution. The question again was whether the amendment required ratification under the proviso to Article 368. this Court noticed the question thus: The question which calls for our decision is: what would be the requirement about making an amendment in a constitutional provision contained in Part III, if as a result of the said amendment, the powers conferred on the High Courts under Article 226 are likely to be affected?" [P. 940] Negativing the challenge to the amendment on the ground of non-ratification, it was held: ".... Thus, if the pith and substance test is applied to the amendment made by the impugned Act, it would be clear that Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfilment of the socioeconomic policy in which the party in power believes. If that be so, the effect of the amendment on the area over which the High Courts' powers prescribed by Article 226 operate, is incidental and in the present case can be described as of an insignificant order. The impugned Act does not purport to change the provisions of Article 226 and it cannot be said even to have that effect directly or in any appreciable measure. That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained....

Shri Kihota Hollohon vs Mr. Zachilhu And Others Equivalent citations: AIR 1993 SC 412, JT 1992 (1) SC 600, 1992 (1) SCALE 338 - Bench: L M Sharma, M V Verma, K J Reddy, S Agrawal - 18 February, 1992 M.N. Venkatachaliah, J. 1. In these petitions the constitutional validity of the Tenth Schedule of the Constitution introduced by the Constitution (Fifty-Second Amendment) Act, 1985, is assailed. These two cases were amongst a batch of Writ Petitions, Transfer Petitions, Civil Appeals, Special Leave Petitions and other similar and connected matters raising common questions which were all heard together. On 12.11.1991 we made an order pronouncing our findings and conclusions upholding the constitutional validity of the amendment and of the provisions of the Tenth Schedule, except for Paragraph 7 which was declared invalid for want of ratification in terms of and as required by the proviso to Article 368(2) of the Constitution. In the order dated 12.11.1991 our conclusions were set out and we indicated that the reasons for the conclusions would follow later. The reasons for the conclusions are now set out. 2. This order is made in Transfer Petition No. 40 of 1991 and in Writ Petition No. 17 of 1991. We have not gone into the factual controversies raised in the Writ-Petition before the Gauhati High Court in Rule No. 2421 of 1990 from which Transfer Petition No. 40 of 1991 arises. Indeed, in the order of 12th November, 1991 itself the said Writ Petition was remitted to the High Court for its disposal in accordance with law. 3. Shri F.S. Nariman, Shri Shanti Bhushan, Shri M.C. Bhandare, Shri Kapil Sibal, Shri Sharma and Shri Bhim Singh, learned Counsel addressed arguments in support of the petitions. Learned AttorneyGeneral, Shri Soli J. Sorabjee, Shri R.K. Garg and Shri Santhosh Hegde sought to support the constitutional validity of the amendment. Shri Ram Jethmalani has attacked the validity of the amendment for the same reasons as put forward by Shri Sharma. 4. Before we proceed to record our reasons for the conclusions reached in our order dated 12th November, 1991, on the contentions raised and argued, it is necessary to have a brief look at the provisions of the Tenth Schedule. The Statement of Objects and Reasons appended to the Bill which was adopted as the Constitution (Fifty-Second Amendment) Act, 1985 says: The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance. On December 8, 1967, the Lok Sabha had passed an unanimous Resolution in terms following: a high-level Committee consisting of representatives of political parties and constitutional experts be set up immediately by Government to consider the problem of legislators changing their allegiance from one party to another and their frequent crossing of the floor in all its aspects and make recommendations in this regard." The said Committee known as the "Committee on Defections" in its report dated January 7, 1969, inter-alia, observed: Following the Fourth General Election, in the short period between March 1967 and February, 1968, the Indian political scene was characterised by numerous instances of change of party allegiance by legislators in several States. Compared to roughly 542 cases in the entire period between the First and Fourth General Election, at least 438 defections occurred in these 12 months alone. Among Independents, 157 out of a total of 376 elected joined various parties in this period. That the lure of office played a dominant part in decisions of legislators to defect was obvious from the fact that out of 210 defecting legislators of the States of Bihar, Haryana, Madhya Pradesh, Punjab, Rajasthan, Uttar Pradesh and West Bengal, 116 were included in the Council of Ministers which they helped to bring into being by defections. The other disturbing features of this phenomenon were: multiple acts of

defections by the same person or set of persons (Haryana affording a conspicuous example); few resignations of the membership of the legislature or explanations by individual defectors, indifference on the part of defectors to political proprieties, constituency preference or public opinion; and the belief held by the people and expressed in the press that corruption and bribery were behind some of these defections [Emphasis supplied] The Committee on Defections recommended that a defector should be debarred for a period of one year or till such time as he resigned his seat and got himself re-elected from appointment to the office of a Minister including Deputy Minister or Speaker or Deputy Speaker, or any post carrying salaries or allowances to be paid from the Consolidated Fund of India or of the State or from the funds of Government Undertakings in public sector in addition to those to which the defector might be entitled as legislator. The Committee on Defections could not, however, reach an agreed conclusion in the matter of disqualifying a defector from continuing to be a Member of Parliament/State Legislator. Keeping in view the recommendations of the Committee on Defections, the Constitution (ThirtySecond Amendment) Bill, 1973 was introduced in the Lok Sabha on May 16, 1973. It provided for disqualifying a Member from continuing as a Member of either House of Parliament or the State Legislature on his voluntarily giving up his membership of the political party by which he was set up as a candidate at such election or of which he became a Member after such election, or on his voting or abstaining from voting in such House contrary to any direction issued by such political party or by any person or authority authorised by it in this behalf without obtaining prior permission of such party, person or authority. The said Bill, however, lapsed on account of dissolution of the House. Thereafter, the Constitution (Forty-eighth Amendment) Bill, 1979 was introduced in the Lok Sabha which also contained similar provisions for disqualification on the ground of defection. This Bill also lapsed and it was followed by the Bill which was enacted into the Constitution (Fifty-Second Amendment) Act, 1985. 5. This brings to the fore the object underlying the provisions in the Tenth Schedule. The object is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy. The remedy proposed is to disqualify the Member of either House of Parliament or of the State Legislature who is found to have defected from continuing as a Member of the House. The grounds of disqualification are specified in Paragraph 2 of the Tenth Schedule. Paragraph 2(1) relates to a Member of the House belonging to a political party by which he was set up as a candidate at the election. Under Paragraph 2(1)(a) such a Member would incur disqualification if he voluntarily gives up his membership of such political party. Under Clause (b) he would incur the disqualification if he votes or abstains from voting in the House contrary to "any direction" issued by the political party to which he belongs or by any person or authority authorised by it in this behalf without obtaining, in either case, prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. This sub para would also apply to a nominated Member who is a Member of a political party on the date of his nomination as such Member or who joins a political party within six months of his taking oath. Paragraph 2(2) deals with a Member who has been elected otherwise than as a candidate set up by any political party and would incur the disqualification if he joins any political party after such election. A nominated Member of a House would incur his disqualification under sub para (3) if he joins any political party after the expiry of six months from the date of which he takes his seat. 6. Paragraphs 3 and 4 of the Tenth Schedule, however, exclude the applicability of the provisions for disqualification under para 2 in cases of "split" in the original political party or merger of the original political party with another political party.

These provisions in the Tenth Schedule give recognition to the role of political parties in the political process. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of Paragraph 2(1)(a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his Membership of the legislature and go back before the electorate. The same yard stick is applied to a person who is elected as an Independent candidate and wishes to join a political party after the election. Paragraph 2(1)(b) deals with a slightly different situation i.e., a variant where dissent becomes defection. If a Member while remaining a Member of the political party which had set him up as a candidate at the election, votes or abstains from voting contrary to "any direction'' issued by the political party to which he belongs or by any person or authority authorised by it in this behalf he incurs the disqualification. In other words, it deals with a Member who expresses his dissent from the stand of the political party to which he belongs by voting or abstaining from voting in the House contrary to the direction issued by the political party. Paragraph 6 of the Tenth Schedule reads: 6(1) If any question arises as to whether a Member of a House has become subject to disqualification under this Schedule the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such house and his decision shall be final: Provided that where the question which has arisen is as to whether the Chairman or the . Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such Member of the House as the House may elect in this behalf and his decision shall be final. (2) All proceedings under sub-Paragraph (1) of this Paragraph in relation to any question as to disqualification of a Member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State within the. meaning of Article 212." Paragraph 7 says: 7. Bar of jurisdiction of courts: Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a Member of a House under this Schedule. 7. The challenge to the constitutional validity of the Amendment which introduces the Tenth Schedule is sought to be sustained on many grounds. It is urged that the constitutional Amendment introducing Paragraph 7 of the Tenth Schedule, in terms and in effect, seeks to make a change in Chapter IV of Part V of the Constitution in that it denudes the jurisdiction of the Supreme Court under Article 136 of the Constitution of India and in Chapter V of Part VI in that it takes away the jurisdiction of the High Courts under Article 226 and that, therefore, the legislative Bill, before presentation to the President for assent, would require to be ratified by the Legislature of not less than one half of the States by resolution to that effect. In view of the admitted position that no such ratification was obtained for the Bill, it is contended, the whole Amending Bill -- not merely Paragraph 7 - fails and the amendment merely remains an abortive attempt to bring about an amendment. It is further contended that the very concept of disqualification for defection is violative of the fundamental values and principles underlying Parliamentary democracy and violates an elected representative's freedom of speech, right to dissent and freedom of conscience and is, therefore, unconstitutional as destructive of a basic feature of the Indian Constitution. It is also urged that the investiture in the Speaker or the Chairman of the power to adjudicate disputed defections would violate an important incident of another basic feature of the Constitution, viz., Parliamentary democracy. It is contended that an independent, fair and impartial machinery for resolution of electoral disputes is an essential and important incident of democracy and that the vesting of the power of adjudication in the Speaker or the Chairman -- who,

in the Indian Parliamentary system are nominees of political parties and are not obliged to resign their party affiliations after election - is violative of this requirement. It is alternatively contended that if it is to be held that the amendment does not attract the proviso to Article 368(2), then Paragraph 7 in so far as it takes away the power of judicial review, which, in itself, is one of the basic features of the Constitution is liable to be struck down. 8. There are certain other contentions which, upon a closer examination, raise issues more of construction than constitutionality. For instance, some arguments were expended on the exact connotations of a "split" as distinct from a "defection" within the meaning of Paragraph 3. Then again, it was urged that under Paragraph 2(b) the expression "any direction" is so wide that even a direction, which if given effect to and implemented might bring about a result which nay itself be obnoxious to and violative of constitutional ideals and values would be a source of disqualification. These are, indeed, matters of construction as to how, in the context in which the occasion for the introduction of the Tenth Schedule arose and the high purpose it is intended to serve, the expression "any direction'' occurring in Paragraph 2(b) is to be understood. Indeed, in one of the decisions cited before us Prakash Singh Badal and Ors. v. Union of India and Ors. this aspect has been considered by the High Court. The decision was relied upon before us. We shall examine it presently. 9. Supporting the constitutionality of the Amendment, respondents urge that the Tenth Schedule creates a non-justiciable constitutional area dealing with certain complex political issues which have no strict adjudicatory disposition. New rights and obligations are created for the first time inflate by the Constitution and the Constitution itself has envisaged a distinct constitutional machinery for the resolution of those disputes. These rights, obligations and remedies, it is urged, which are in their very nature and innate complexities are in political thickets and are not amenable to judicial processes and the Tenth Schedule has merely recognised this complex character of the issues and that the exclusion of this area is constitutionally preserved by imparting a finality to the decisions of the Speaker or the Chairman and by deeming the whole proceedings as proceedings within Parliament or within the Houses of Legislature of the States envisaged in Articles 122 and 212, respectively, and further by expressly excluding the Courts' jurisdiction under Paragraph 7. Indeed, in constitutional and legal theory, it is urged, there is really no ouster of jurisdiction of Courts or of Judicial Review as the subject-matter itself by its inherent character and complexities is not amenable to but outside judicial power and that the ouster of jurisdiction under Paragraph 7 is merely a consequential constitutional recognition of the non-amenability of the subject-matter to the judicial power of the State, the corollary of which is that the Speaker or the Chairman, as the case may be, exercising powers under Paragraph 6(1) of the Tenth Schedule function not as a statutory Tribunal but as a part of the State's Legislative Department. It is, therefore, urged that no question of the ouster of jurisdiction of Courts would at all arise inasmuch as in the first place, having regard to the political nature of the issues, the subject-matter is itself not amenable to judicial power. It is urged that the question in the last analyses pertains to the Constitution of the House and the Legislature is entitled to deal with it exclusively. 10. It is further urged that Judicial Review -- apart from Judicial Review of the legislation as inherent under a written Constitution - is merely a branch of administrative law remedies and is by no means a basic feature of the Constitution and that, therefore, Paragraph 7, being a constitutional provision cannot be invalidated on some general doctrine not found in the Constitution itself. 11. On the contentions raised and urged at the hearing the questions that fall for consideration are the following: (A) The Constitution (Fifty-Second Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule is destructive of the basic structure of the Constitution as it is violative of the fundamental principles of Parliamentary democracy, a basic feature of the Indian constitutionalism and is destructive of the freedom of speech, right to dissent and freedom of conscience as the provisions of

the Tenth Schedule seek to penalize and disqualify elected representatives for the exercise of these rights and freedoms which are essential to the sustenance of the system of Parliamentary democracy. (B) Having regard to the legislative history and evolution of the principles underlying the Tenth Schedule, Paragraph 7 thereof in terms and in effect, brings about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India and, therefore, the Bill introducing the amendment attracts the proviso to Article 368(2) of the Constitution and would require to be ratified by the legislative of the States before the Bill is presented for Presidential assent. (C) In view of the admitted non-compliance with the proviso to Article 368(2) not only Paragraph 7 of the Tenth Schedule, but also the entire Bill resulting in the Constitution (Fifty-Second Amendment) Act, 1985, stands vitiated and the purported amendment is abortive and does not in law bring about a valid amendment. Or whether, the effect of such non-compliance invalidates Paragraph 7 alone and the other provisions which, by themselves, do not attract the proviso do not become invalid. (D) That even if the effect of non-ratification by the legislature of the States is to invalidate Paragraph 7 alone, the whole of the Tenth Schedule fails for non-severability. Doctrine of severability, as applied to ordinary statutes to promote their constitutionality, is inapplicable to constitutional Amendments. Even otherwise, having regard to legislative intent and scheme of the Tenth Schedule, the other provisions of the Tenth Schedule, after the severance and excision of Paragraph 7, become truncated, and unworkable and cannot stand and operate independently. The Legislature would not have enacted the Tenth Schedule without Paragraph 7 which forms its heart and core. (E) That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts the immunity under Articles 122 and 212. The Speaker and the Chairman in relation to the exercise of the powers under the Tenth Schedule shall not be subjected to the jurisdiction of any Court. The Tenth Schedule seeks to and does create a new and non-justiciable area of rights, obligations and remedies to be resolved in the exclusive manner envisaged by the Constitution and is not amenable to, but constitutionally immune from curial adjudicative processes. (F) That even if Paragraph 7 erecting a bar on the jurisdiction of Courts is held inoperative, the Courts' jurisdiction is, in any event, barred as Paragraph 6(1) which imparts a constitutional 'finality' to the decision of the Speaker or the Chairman, as the case may be, and that such concept of 'finality' bars examination of the matter by the Courts. (G) The concept of free and fair elections as a necessary concomitant and attribute of democracy which is a basic feature includes an independent impartial machinery for the adjudication of the electoral disputes. The Speaker and the Chairman do not satisfy these incidents of an independent adjudicatory machinery. The investiture of the determinative and adjudicative jurisdiction in the Speaker or the Chairman, as the case may be, would, by itself, vitiate the provision on the ground of reasonable likelihood of bias and lack of impartiality and therefore denies the imperative of an independent adjudicatory machinery. The Speaker and Chairman are elected and hold office on the support of the majority party and are not required to resign their Membership of the political party after their election to the office of the Speaker or Chairman. (H) That even if Paragraph 7 of the Tenth Schedule is held not to bring about a change or affect Articles 136, 226 and 227 of the Constitution, the amendment is unconstitutional as it erodes and destroys judicial review which is one of the basic features of the Constitution. 12. Re: Contention (A): The Tenth Schedule is part of the Constitution and attracts the same canons of construction as are applicable to the expounding of the fundamental law. One constitutional power is necessarily conditioned by the others as the Constitution is one "coherent document". learned Counsel for the petitioners accordingly say that the Tenth Schedule should be read subject to the basic features of the Constitution. The Tenth Schedule and certain essential incidents of democracy, it is urged, cannot coexist.

In expounding the processes of the fundamental law, the Constitution must be treated as a logicalwhole. Westel Woodbury Willoughby in the "Constitutional law of the United States" states: The Constitution is a logical whole, each provision of which is an integral part thereof, and it is, therefore, logically proper, and indeed imperative, to construe one part in the light of the provisions of the other parts. 2nd Edn: Vol. 1 page 65) A constitutional document outlines only broad and general principles meant to endure and be capable of flexible application to changing circumstances - a distinction which differentiates a statute from a Charter under which all statutes are made. Cooley on "Constitutional Limitations:" says: Upon the adoption of an amendment to a constitution, the amendment becomes a part thereof; as much so as if it had been originally incorporated in the Constitution; and it is to be construed accordingly. [8th Edn. Vol. I page 129] 13. In considering the validity of a constitutional amendment the changing and the changed circumstances that compelled the amendment are important criteria. The observations of the U.S. Supreme Court in Maxwell v. Dow 44 Lawyer's Edition 597 at page 605 are worthy of note: ...to read its language in connection with the known condition of affairs out of which the occasion for its adoption may have arisen and then to construe it, if there be therein any doubtful expressions, in a way so far as is reasonably possible, to forward the known purpose or object for which the amendment was adopted.... The Report of the Committee on Defections took note of the unprincipled and unethical defections induced by considerations of personal gains said: ...What was most heartening was the feeling of deep concern over these unhealthy developments in national life on the part of the leaders of political parties themselves. Parliament mirrored this widespread concern.... [page 1] 14. It was strenuously contended by Shri Ram Jethmalani and Shri Sharma that the provisions of the Tenth Schedule constitute a flagrant violation of those fundamental principles and values which are basic to the sustenance of the very system of Parliamentary democracy. The Tenth Schedule, it is urged, negates those very foundational assumptions of Parliamentary democracy; of freedom of speech; of the right to dissent and of the freedom of conscience. It is urged that unprincipled political defections may be an evil, but it will be the beginning of much greater evils if the remedies, graver than the disease itself, are adopted. The Tenth Schedule, they say, seeks to throw away the baby with the bath-water. learned Counsel argue that "crossing the floor", as it has come to be called, mirrors the meanderings of a troubled conscience on issues of political morality and to punish an elected representative for what really amounts to an expression of conscience negates the very democratic principles which the Tenth Schedule is supposed to preserve and sustain. learned Counsel referred to the famous Speech to the Electors of Bristol, 1774, where Edmund Burke reportedly said: It ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unmerited attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions to theirs -- and above all, ever, and in all cases, to prefer their interest to his own. But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living.... Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion. [See: Parliament Functions, Practice & Procedures by JAG Griffith and Michael Ryle 1989 Edn. page 70]

15. Shri Jethmalani and Shri Sharma also relied upon certain observations of Lord Shaw in Amalgamated Society of Railway Servants v. Osborne 1910 A.C.87 to contend that a provision which seeks to attach a liability of disqualification of an elected Member for freely expressing his views on matters of conscience, faith and political belief are indeed restraints on the freedom of speech -restraints opposed to public policy. In that case a registered trade union framed a rule enabling it to levy contributions on the Members to support its efforts to obtain Parliamentary representation by setting up candidates at elections. It also framed a rule requiring all such candidates to sign and accept the conditions of the Labour Party and be subject to its whip. The observations in the case relied upon by learned Counsel are those of Lord Shaw of Dunfermline who observed: Take the testing instance: should his view as to right and wrong on a public issue as to the true line of service to the realm, as to the real interests of the constituency which has elected him, or even of the society which pays him, differ from the decision of the parliamentary party and the maintenance by it of its policy, he has come under a contract to place his vote and action into subjection not to his own convictions, but to their decisions. My Lords, I do not think that such a subjection is compatible either with the spirit of our parliamentary Constitution or with that independence and freedom which have hitherto been held to lie at the basis of representative government in the United Kingdom. [Page 111] For the people having reserved to themselves the choice of their representatives, as the fence to their properties, could do it for no other end but that they might always be freely chosen, and so chosen freely act and advise, as the necessity of the commonwealth and the public good should upon examination and mature debate be judged to require.... [Page 113] Still further, in regard to the Member of Parliament himself, he too is to be free; he is not to be the paid mandatory of any man, or organization of men, nor is he entitled to bind himself to subordinate his opinions on public questions to others, for wages, or at the peril of pecuniary loss; and any contract of this character would not be recognized by a Court of law, either for its enforcement or in respect of its breach.... [page 115] It is relevant to observe here that the rule impugned in that case was struck down by the Court of Appeal -- whose decision was upheld by the House of Lords -- on grounds of the Society's competence to make the rule. It was held that the rule was beyond its powers. Lord Shaw, however, was of the view that the impugned rule was opposed to those principles of public policy essential to the working of a representative Government. The view expressed by Lord Shaw was not the decision of the House of Lords in that case. But, the real question is whether under the Indian constitutional scheme is there any immunity from constitutional correctives against a legislatively perceived political evil of unprincipled defections induced by the lure of office and monetary inducements? 16. The points raised in the petitions are, indeed, far-reaching and of no small importance - invoking the 'sense of relevance of constitutionally stated principles to unfamiliar settings'. On the one hand there is the real and imminent threat to the very fabric of Indian democracy posed by certain levels of political behaviour conspicuous by their utter and total disregard of well recognised political proprieties and morality. These trends tend to degrade the tone of political life and, in their wider propensities, are dangerous to and undermine the very survival of the cherished values of democracy. There is the legislative determination through experimental constitutional processes to combat that evil. On the other hand, there are, as in all political and economic experimentations, certain side-effects and fallout which might affect and hurt even honest dissenters and conscientious objectOrs. These are the usual plus and minus of all areas of experimental legislation. In these areas the distinction between what is constitutionally permissible and what is outside it is marked by a 'hazy gray-line' and it is the

Court's duty to identity, "darken and deepen" the demarcating line of constitutionality -- a task in which some element of Judges' own perceptions of the constitutional ideals inevitably participate. There is no single litmus test of constitutionality. Any suggested sure decisive test, might after all furnish a "transitory delusion of certitude" where the "complexities of the strands in the web of constitutionality which the Judge must alone disentangle" do not lend themselves to easy and sure formulations one way or the other. It is here that it becomes difficult to refute the inevitable legislative element in all constitutional adjudications. 17. All distinctions of law -- even Constitutional law - are, in. the ultimate analyses, "matters of degree". At what line the 'white' fades into the 'black' is essentially a legislatively perceived demarcation. In his work "Oliver Wendell Holmes - Free Speech and the Living Constitution" (1991 Edition: New York University Publication) Pohlman says: All distinctions of law, as Holmes never tired of saying, were therefore "matters of degree." Even in the case of constitutional adjudication, in which the issue was whether a particular exercise of power was within or without the legislature's authority, the judge's decision "will depend on a judgment or intuition more subtle than any articulate major premise." As the particular exertion of legislative power approached the hazy gray line separating individual rights from legislative powers, the judge's assessment of constitutionality became a subtle value judgment. The judge's decision was therefore not deductive, formal, or conceptual in any sense. [page 217] (emphasis supplied) Justice Holmes himself had said: Two widely different cases suggest a general distinction, which is a clear one when stated broadly. But as new cases cluster around the opposite poles, and begin to approach each other, the distinction becomes more difficult to trace; the determination are made one way or the other on a very slight preponderance of feeling, rather than articulate reason; and at last a mathematical line is arrived at by the contact of contrary decisions, which is so far arbitrary that it might equally well have been drawn a little further to the one side or to the other. [Emphasis supplied] [See: "Theory of Torts" American Law Review 7 (1873)] The argument that the constitutional remedies against the immorality and unprincipled chameleon-like changes of political hues in pursuit of power and pelf suffer from something violative of some basic features of the Constitution, perhaps, ignores the essential organic and evolutionary character of a Constitution and its flexibility as a living entity to provide for the demands and compulsions of the changing times and needs. The people of this country were not beguiled into believing that the menace of unethical and unprincipled changes of political affiliations is something which the law is helpless against and is to be endured as a necessary concomitant of freedom of conscience. The onslaughts on their sensibilities by the incessant unethical political defections did not dull their perception of this phenomenon as a canker eating into the vitals of those values that make democracy a living and worth-while faith. This is preeminently an area where judges should defer to legislative perception of and reaction to the . pervasive dangers of unprincipled defections to protect the community.' 'Legislation may begin where an evil begins." Referring to the judicial philosophy of Justice Holems in such areas, Pohlman again says: A number of Holme's famous aphorisms point in the direction that judges should defer when the legislature reflected the pervasive and predominant values and interests of the community. He had, for example, no "practical" criterion to go on except "what the crowd wanted." He suggested, in a humorous vein that his epitaph.... No judge ought to interpret a provision of the Constitution in a way that would prevent the American people from doing what it really wanted to do. If the general

consensus was that a certain condition was an "evil" that ought to be corrected by certain means, then the government had the power to do it: "Legislation may begin where an evil begins"; "Constitutional law like other mortal contrivances has to take some changes...." "Some play must be allowed to the joints if the machine is to work." All of these rhetorical flourishes suggest that Holmes deferred to the legislature if and when he thought it accurately mirrored the abiding beliefs, interests, and values of the American public. (emphasis supplied) [See: Justice Oliver Wendell Holmes -- Free Speech and the Living Constitution by H.L. Pohlman 1991 Edn. page 233] 18. Shri Sharma contends that the rights and immunities under Article 105(2) of the Constitution which according to him are placed by judicial decisions even higher than the fundamental-right in Article 19(1)(a), have violated the Tenth Schedule. There are at least two objections to the acceptability of this contention. The first is that the Tenth Schedule does not impinge upon the rights or immunities under Article 105(2). Article 105(2) of the Constitution provides: 105. Powers, privileges, etc., of the Houses of Parliament and of the Members and committees thereof.- (1) ... (2) No Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of cither House of Parliament of any report, paper, votes or proceedings. The freedom of speech of a Member is not an absolute freedom. That apart, the provisions of the Tenth Schedule do not purport to make a Member of a House liable in any 'Court' for anything said or any vote given by him in Parliament. It is difficult to conceive how Article 105(2) is a source of immunity from the consequences of unprincipled floor-crossing. Secondly, on the nature and character of electoral rights this Court in Jyoti Basu and Ors. v. Debi Ghosal and Ors. observed: A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they arc, and therefore, subject to statutory limitation. [page 326] Democracy is a basic feature of the Constitution. Whether any particular brand or system of Government by itself, has this attribute of a basic feature, as long as the essential characteristics that entitle a system of government to be called democratic are otherwise satisfied is not necessary to be gone into. Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the Constitution. So is the need to protect and sustain the purity of the electoral process. That may take within it the quality, efficacy and adequacy of the machinery for resolution of electoral disputes. From that it does not necessarily follow that the rights and immunities under sub-Article (2) of Article 105 of the Constitution, are elevated into fundamental rights and that the Tenth Schedule would have to be struck down for its inconsistency with Article 105(2) as urged by Shri Sharma. 19. Parliamentary democracy envisages that matters involving implementation of policies of the Government should be discussed by the elected representatives of the people. Debate, discussion and persuasion arc, therefore, the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not unoften the views expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view,

thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy. At times such an expression of views during the debate in the House may lead to voting or abstinence from voting in the House otherwise than on party lines. But a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles. Any freedom of its Members to vote as they please independently of the political party's declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance -- nay, indeed, its very survival. Intra-party debates are of course a different thing. But a public image of disparate stands by Members of the same political party is not looked upon, in political tradition, as a desirable state of things. Griffith and Ryle on "Parliament, Functions, Practice & Procedure" (1989 Edn. page 119) say; Loyalty to party is the norm, being based on shared beliefs. A divided party is looked on with suspicion by the electorate. It is natural for Members to accept the opinion of their Leaders and Spokesmen on the wide variety of matters on which those Members have no specialist knowledge. Generally Members will accept majority decisions in the party even when they disagree. It is understandable therefore that a Member who rejects the party whip even on a single occasion will attract attention and more criticism than sympathy. To abstain from voting when required by party to vote is to suggest a degree of unreliability. To vote against party is disloyalty. To join with others in abstention or voting with the other side smacks of conspiracy. (emphasis supplied) Clause (b) of sub-para (1) of Paragraph 2 of the Tenth Schedule gives effect to this principle and sentiment by imposing a disqualification on a Member who voles or abstains from voting contrary to "any directions" issued by the political party. The provision, however, recognises two exceptions: one when the Member obtains from the political party prior permission to vote or abstain from voting and the other when the Member has voted without obtaining such permission but his action has been condoned by the political party. This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting contrary to the direction of the party to which he belongs. This, in itself again, may provide a clue to the proper understanding and construction of the expression "Any Direction" in Clause (b) of Paragraph 2(1) -- whether really all directions or whips from the party entail the statutory consequences or whether having regard to the extra-ordinary nature and sweep of the power and the very serious consequences that flow including the extreme penalty of disqualification the expression should be given a meaning confining its operation to the contexts indicated by the objects and purposes of the Tenth Schedule. We shall deal with this aspect separately. 20. The working of the modern Parliamentary democracy is complex. The area of the inter-sc relationship between the electoral constituencies and their elected representatives has many complex features and overtones. The citizen as the electorate is said to be the political sovereign. As long as regular general elections occur, the electorate remains the arbiter of the ultimate composition of the representative legislative body to which the Government of the day is responsible. There are, of course, larger issues of theoretical and philosophical objections to the legitimacy of a representative Government which might achieve a majority of the seats but obtains only minority of the electoral votes. It is said that even in England this has been the phenomenon in every general elections in this century except the four in the years 1900, 1918, 1931 and 1935. But in the area of the inter-relationship between the constituency and its elected representative, it is the avowed endeavour of the latter to requite the expectations of his voters. Occasionally, this might conflict with his political obligations to the political party sponsoring him which expects - and exacts in its own way - loyalty to it. This duality of capacity functions are referred to by a learned author thus:

The functions of Members are of two kinds and flow from the working of representative government. When a voter at a general election, in that hiatus between parliaments, puts his cross against the name of the candidate he is [most often] consciously performing two functions: seeking to return a particular person to the house of commons as Member for that constituency; and seeking to return to power as the government of the country a group of individuals of the same party as that particular person. The voter votes for a representative and for a government. He may know that the candidate he votes has little chance of being elected.... When a candidate is elected as a Member of the House of Commons, he reflects those two functions of the voter. Whatever other part he may play, he will be a constituency M.P. As such, his job will be to help his constituents as individuals in their dealings with the departments of State. He must listen to their grievances and often seek to persuade those in authority to provide remedies. He must have no regard to the political leanings of his constituents for he represents those who voted against him or who did not vote at all as much as those who voted for him. Even if he strongly disagrees with their complaint he may still seek to represent it, though the degree of enthusiasm with which he does so is likely to be less great. [See: Parliament -- Functions, Practice and Procedures by JAG Griffith and Ryle -- 1989 Edn. page 69]. So far as his own personal views on freedom of conscience are concerned, there may be exceptional occasions when the elected representative finds himself compelled to consider more closely how he should act. Referring to these dilemma the authors say; ... The first is that he may feel that the policy of his party whether it is in office or in opposition, on a particular matter is not one of which he approves. He may think this because of his personal opinions or because of its special consequences for his constituents or outside interests or because it reflects a general position within the party with which he cannot agree. On many occasions, he may support the party despite his disapproval. But occasionally the strength of his feeling will be such that he is obliged to express his opposition either by speaking or by abstaining on a vote or even by voting with the other side. Such opposition will not pass unnoticed and, unless the matter is clearly one of conscience, he will not be popular with the party whips. The second complication is caused by a special aspect of parliamentary conduct which not frequently transcends party lines. Members, who are neither Ministers nor front-bench Opposition spokesmen, do regard as an important part of their function the general scrutiny of Governmental activity. This is particularly the role of select committees which have, as we shall see, gained new prominence since 1979. No doubt, it is superficially paradoxical to see Members on the Government side of the House joining in detailed criticism of the administration and yet voting to maintain that Government in office. But as one prominent critic of government has said, there is nothing inherently contradictory in a Member sustaining the Executive in its power or helping it to overcome opposition at the same time as scrutinising the work of the executive in order both to improve it and to see that power is being exercised in a proper and legitimate fashion. [pages 69 and 70] Speaking of the claims of the political party on its elected Member Rodney Brazier says: "Once returned to the House of Commons the Member's party expects him to be loyal. This is not entirely unfair or improper, for it is the price of the party's label which secured his election. But the question is whether the balance of a Member's obligations has titled too far in favour of the requirements of party. The nonsense that a Whip -- even a three-line whip -- is no more than a summons to attend the House, and that, once there, the Member is completely free to speak and vote as he thinks fit, was still being put about, by the Parliamentary Private Secretary to the Prime Minister, as recently as 1986. No one can honestly believe that. Failure to vote with his party on a three-line whip without permission invites a party reaction. This will range (depending on the circumstances and whether the offence is repeated) from a quiet word from a Whip and appeals to future loyalty, to a ticking-off or a

formal reprimand (perhaps from the Chief Whip himself), to any one of a number of threats. The armoury of intimidation includes the menaces that the Member will never get ministerial office, or go on overseas trips sponsored by the party, or be nominated by his party for Commons committee Memberships, or that he might be deprived of his party's whip in the House, or that he might be reported to his constituency which might wish to consider his behaviour when reselection comes round again.... Does the Member not enjoy the Parliamentary privilege of freedom of speech? How can his speech be free in the face of such party threats? The answer to the inquiring citizen is that the whip system is part of the conventionally established machinery of political organisation in the house, and has been ruled not to infringe a Member's parliamentary privilege in any way. The political parties are only too aware of the utility of such a system, and would fight in the last ditch to keep it." [See; Constitutional Reform - Reshaping the British Political System by Rodney Brazier, 1991 Edn. pages 48 and 49]. The learned author, referring to cases in which an elected Member is seriously unrepresentative of the general constituency opinion, or whose personal behaviour falls below standards acceptable to his constituents commends that what is needed is some additional device to ensure that a Member pays heed to constituents' views. Brazier speaks of the efficacy of device where the constituency can recall its representative. Brazier says: "What sort of conduct might attract the operation of the recall power? First, a Member might have misused his Membership of the House, for example to further his personal financial interests in a manner offensive to his constituents. They might consider that the action taken against him by the house (or, indeed, lack of action) was inadequate... Thirdly, the use of a recall power might be particularly apt when a Member changed his party but declined to resign his seat and fight an immediate by-election. It is not unreasonable to expect a Member who crosses the floor of the House, or who joins a new party, to resubmit himself quickly to the electors who had returned him in different colours. Of course, in all those three areas of controversial conduct the ordinary process of reselection might well result in the Member being dropped as his party's candidate (and obviously would definitely have that result in the third case). But that could only occur when the time for reselection came; and in any event the constituency would still have the Member representing them until the next general election. A cleaner and more timely parting of the ways would be preferable. Sometimes a suspended sentence does not meet the case. [p. 52 and 53.] Indeed, in a sense an anti-defection law is a statutory variant of its moral principle and justification underlying the power of recall. What might justify a provision for recall would justify a provision for disqualification for defection. Unprincipled defection is a political and social evil. It is perceived as such by the legislature. People, apparently, have grown distrustful of the emotive political exultations that such floor-crossings belong to the sacred area of freedom of conscience, or of the right to dissent or of intellectual freedom. The anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct -- whose awkward erosion and grotesque manifestations have been the base of the times -- above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation. We should, we think, defer to this legislature wisdom and perception. The choices in constitutional adjudications quite clearly indicate the need for such deference. "Let the end be legitimate, let it be within the scope of the Constitution and all means which are appropriate, which are adopted to that end..." are constitutional. See Kazurbach v. Morgan: 384 US 641. 21. It was then urged by Shri Jethmalani that the distinction between the conception of "defection" and "split" in the Tenth Schedule is so thin and artificial that the differences on which the distinction rests are indeed an outrageous defiance of logic. Shri Jethmalani used that if floor-crossing by one Member is an evil, then a collective perpetration of it by l/3rd of the elected Members of a party is no

better and should be regarded as an aggravated evil both logically and from the part of its aggravated consequences. But the Tenth Schedule, says Shri Jethmalani, employs its own inverse ratiocination and perverse logic to declare that where such evil is perpetrated collectively by an artificially classified group of not less than l/3rd Members of that political party that would not be a "defection" but a permissible "split" or "merger." This exercise to so hold-up the provision as such crass imperfection is performed by Shri Jethmalani with his wonted forensic skill. But we are afraid what was so attractively articulated, on closer examination, is, perhaps, more attractive than sound. The underlying premise in declaring an individual act of defection as forbidden is that lure of office or money could be presumed to have prevailed. Legislature has made this presumption on its own perception and assessment of the extant standards of political proprieties and morality. At the same time legislature envisaged the need to provide for such "floor-crossing" on the basis of honest dissent. That a particular course of conduct commended itself to a number of elected representatives might, in itself, lend credence and reassurance to a presumption of bona fides. The presumptive impropriety of motives progressively weakens according as the numbers sharing the action and there is nothing capricious and arbitrary in this legislative perception of the distinction between 'defection' and 'split'. Where is the line to be drawn? What number can be said to generate a presumption of bona fides? Here again the Courts have nothing else to go by except the legislative wisdom and, again, as Justice Holmes said, the Court has no practical criterion to go by except "what the crowd wanted". We find no substance in the attack on the statutory distinction between "defection" and "split". Accordingly we hold; that the Paragraph 2 of the Tenth Schedule to the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended. The provisions of Paragraph 2 do not violate any rights or freedom under Articles 105 and 194 of the Constitution. The provisions are salutary and are intended to strengthen the fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections. The contention that the provisions of the Tenth Schedule, even with the exclusion of Paragraph 7, violate the basic structure of the Constitution in that they affect the democratic rights of elected Members and, therefore, of the principles of Parliamentary democracy is unsound and is rejected. 22. Re: Contention (B): The thrust of the point is that paragraph 7 brings about a change in the provisions of Chapter IV of Part V and Chapter V of Part VI of the Constitution and that, therefore, the amending Bill falls within proviso to Article 368(2). We might, at the outset, notice Shri Sibal's submissions on a point of construction of Paragraph 7. Shri Sibal urged that Paragraph 7, properly construed, does not seek to oust the jurisdiction of Courts under Article 136, 226 and 227 but merely prevents an interlocutory intervention or a quia-time action. He urged that the words "in respect of any matters connected with the disqualification of a Member" seek to bar jurisdiction only till the matter is finally decided by the Speaker or Chairman, as the case may be, and does not extend beyond that stage and that in dealing with the dimensions of exclusion of the exercise of judicial power the broad considerations are that provisions which seek to exclude Courts' jurisdiction shall be strictly construed. Any construction which results in denying the Courts is, it is urged, not favoured. Shri Sibal relied upon the following observations of this Court in H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and Ors. v. Union of India : ... The proper forum under our Constitution for determining a legal dispute is the Court which is by training and experience, assisted by properly qualified advocates, fitted to perform that task. A provision which purports to exclude the jurisdiction of the Courts in certain matters and to deprive the aggrieved party of the normal remedy will be strictly construed, for it is a principle not to be whittled

down that an aggrieved party will not, unless the jurisdiction of the Courts is by clear enactment or necessary implication barred, be denied his right to seek recourse to the Courts for determination of his rights...." "The Court will avoid imputing to the Legislature an intention to enact a provision which flouts notions of justice and norms of fair-play, unless a contrary intention is manifest from words plain and unambiguous. A provision in a statute will not be construed to defeat its manifest purpose and general values which animate its structure. In an avowedly democratic polity, statutory provisions ensuring the security of fundamental human rights including the right to property will, unless the contrary mandate be precise and unqualified, be construed liberally so as to uphold the right. These rules apply to the interpretation of constitutional and statutory provisions alike. [pages 94 - 95] It is true that the provision which seeks to exclude the jurisdiction of Courts is strictly construed. See also: Mask & Co. v. Secretary of State AIR 1940 P.C. 105. But the rules of construction are attracted where two or more reasonably possible constructions are open on the language of the statute. But, here both on the language of Paragraph 7 and having regard to the legislative evolution of the provision, the legislative intent is plain and manifest. The words ''no Court shall have any jurisdiction in respect of any matter connected with the disqualification of a member'' are of wide import and leave no constructional options. This is reinforced by the legislative history of the anti-defection law. The deliberate and purposed presence of Paragraph 7 is clear from the history of the previous proposed legislations on the subject. A comparison of the provisions of the Constitution (Thirty-second Amendment) Bill, 1973 and the Constitution (Forty-eight Amendment) Bill, 1978, (both of which had lapsed) on the one hand and the Constitution (52nd Amendment) Bill, 1985, would bring-out the avowed and deliberate intent of Paragraph 7 in the Tenth Schedule. The previous Constitution (38th and 48th Amendment) Bills contained similar provisions for disqualification on grounds of defection, but, these Bills did not contain any clause ousting the jurisdiction of the Courts. Determination of disputed disqualifications was left to the Election Commission as in the case of other disqualifications under Articles 102 and 103 in the case of Members of Parliament and Articles 191 and 192 in the case of Members of Legislature of the States. The Constitution (Fifty-second Amendment) Bill for the first time envisaged the investiture of the power to decide disputes on the Speaker or the Chairman. The purpose of the enactment of Paragraph 7, as the debates in the Houses indicate, was to bar the jurisdiction of the Courts under Articles 136, 226 and 227 of the Constitution of India. Shri Sibal's suggested contention would go against all these over-whelming interpretative criteria apart from its unacceptability on the express language of Paragraph 7. 23. But it was urged that no question of change in Articles 136, 226 and 227 of the Constitution within the meaning of Clause (b) of the proviso to Article 368(2) arises at all in view of the fact that the area of these rights and obligations being constitutionally rendered non-justiciable, there is no judicial review under Articles 136, 226 and 227 at all in the first instance so as, to admit of any idea of its exclusion. Reliance was placed on the decisions of this Court in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar 1952 SCR 89 and Sajjan Singh v. State of Rajasthan . 24. In Sankari Prasad's case, the question was whether the Amendment introducing Articles 31A and 31B in the Constitution required ratification under the said proviso. Repelling this contention it was observed: It will be seen that these articles do not either in terms or in effect seek to make any change in Article 226 or in Articles 132 and 136. Article 31A aims at saving laws providing for the compulsory acquisition by the State of a certain kind of property from the operation of the 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 arc 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 power in such cases. [1982 SCR 89 at 108] In Sajjan Singh's case, a similar contention was raised against the validity of the Constitution (17th Amendment) Act, 1964 by which Article 31A was again amended and 44 statutes were added to the IX Schedule to the Constitution. The question again was whether the amendment required ratification under the proviso to Article 368. this Court noticed the question thus: The question which calls for our decision is: what would be the requirement about making an amendment in a constitutional provision contained in Part III, if as a result of the said amendment, the powers conferred on the High Courts under Article 226 are likely to be affected?" [P. 940] Negativing the challenge to the amendment on the ground of non-ratification, it was held: ".... Thus, if the pith and substance test is applied to the amendment made by the impugned Act, it would be clear that Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfilment of the socioeconomic policy in which the party in power believes. If that be so, the effect of the amendment on the area over which the High Courts' powers prescribed by Article 226 operate, is incidental and in the present case can be described as of an insignificant order. The impugned Act does not purport to change the provisions of Article 226 and it cannot be said even to have that effect directly or in any appreciable measure. That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained....
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Registered: 2012-02-14 Posts: 476 The propositions that fell for consideration in Sankari Prasad Singh's and Sajjan Singh's cases are indeed different. There the jurisdiction and power of the Courts under Articles 136 and 226 were not sought to be taken away nor was there any change brought about in those provisions either "in terms or in effect", since the very rights which could be adjudicated under and enforced by the Courts were themselves taken away by the Constitution. The result was that there was no area for the jurisdiction of the Courts to operate upon. Matters are entirely different in the context of Paragraph 7. Indeed the aforesaid cases, by necessary implication support the point urged for the petitioners. The changes in Chapter IV of Part V and Chapter V of Part VI envisaged by the proviso need not be direct. The change could be either "in terms of or in effect". It is not necessary to change the language of Articles 136 and 226 of the Constitution to attract the proviso. If in effect these Articles are rendered ineffective and made inapplicable where these articles could otherwise have been invoked or would, but for Paragraph 7, have operated there is 'in effect' a change in those provisions attracting the proviso. Indeed this position was recognised in Sajjan Singh's case where it was observed: If the effect of the amendment made in the fundamental rights on Article 226 is direct and not incidental and is of a very significant order, different considerations may perhaps arise. [p. 944]

In the present cases, though the amendment does not bring in any change directly in the language of Articles 136, 226 and 227 of the Constitution, however, in effect paragraph 7 curtails the operation of those Articles respecting matters falling under the Tenth Schedule. There is a change in the effect in Articles 136, 226 and 227 within the meaning of Clause (b) of the proviso to Article 368(2). Paragraph 7, therefore, attracts the proviso and ratification was necessary. Accordingly on Point B, we hold: That having regard to the background and evolution of the principles underlying the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the Constitution in terms and in effect bring about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India and, therefore, the amendment would require to be ratified in accordance with the proviso to sub-Article (2) of Article 368 of the Constitution of India. 25. Re. Contentions 'C' and 'D': The criterion for determining the validity of a law is the competence of the law-making authority. The competence of the law-making authority would depend on the ambit of the legislative power, and the limitations imposed thereon as also the limitations on mode of exercise of the power. Though the amending power in a Constitution is in the nature of a constituent power and differs in content from the legislative power, the limitations imposed on the constituent power may be substantive as well as procedural. Substantive limitations are those which restrict the field of exercise of the amending power and exclude some areas from its ambit. Procedural limitations are those which impose restrictions with regard to the mode of exercise of the amending power. Both these limitations, however, touch and affect the constituent power itself, disregard of which invalidates its exercise. 26. The Constitution provides for amendment in Articles 4, 169, 368, paragraph 7 of Fifth Schedule and paragraph 21 of Sixth Schedule. Article 4 makes provisions for amendment of the First and the Fourth Schedules, Article 169 provides for amendment in the provision of the Constitution which may be necessary for abolition or creation of Legislative Councils in States, paragraph 7 of the Fifth Schedule provides for amendment of the Fifth Schedule and paragraph 21 of the Sixth Schedule provides for amendment of the Sixth Schedule. All these provisions prescribe that the said amendments can be made by a law made by Parliament which can be passed like any other law by a simple majority in the Houses of Parliament. Article 368 confers the power to amend the rest of the provisions of the Constitution. In sub-Article (2) of Article 368, a special majority - two-thirds of the members of each House of Parliament present and voting and majority of total membership of such House - is required to effectuate the amendments. The proviso to sub-Article (2) of Article 368 imposes a further requirement that if any change in the provisions set out in Clauses (a) to (e) of the proviso, is intended it would then be necessary that the amendment be ratified by the legislature of not less than one-half of the States. Although there is no specific enumerated substantive limitation on the power in Article 368, but as arising from very limitation in the word 'amend', a substantive limitation is inherent on the amending power so that the amendment does not alter the basic structure or destroy the basic features of the Constitution. The amending power under Article 368 is subject to the substantive limitation in that the basic structure cannot be altered or the basic features of the Constitution destroyed. The limitation requiring a special majority is a procedural one. Both these limitations impose a fetter on the competence of Parliament to amend the Constitution and any amendment made in disregard of these limitations would go beyond the amending power. 27. While examining the constitutional validity of laws the principle that is applied is that if it is possible to construe a statute so that its validity can be sustained against a constitutional attack it should be so construed and that when part of a statute is valid and part is void, the valid part must be

separated from the invalid part. This is done by applying the doctrine of severability. The rationale of this doctrine has been explained by Cooley in the following words: It will sometimes be found that an act of the legislature is opposed in some of its provisions to the constitution, while others, standing by themselves, would be unobjectionable. So the forms observed in passing it may be sufficient for some of the purposes sought to be accomplished by it, but insufficient for others. In any such case the portion which conflicts with the constitution, or in regard to which the necessary conditions have not been observed, must be treated as a nullity. Whether the other parts of the statute must also be adjudged void because of the association must depend upon a consideration of the object of the law, and in what manner and to what extent the unconstitutional portion affects the remainder. A statute, it has been said, is judicially held to be unconstitutional, because it is not within the scope of legislative authority; it may either propose to accomplish something prohibited by the constitution, or to accomplish some lawful, and even laudable object, by means repugnant to the Constitution of the United States or of the State. A statute may contain some such provisions, and yet the same act, having received the sanction of all branches of the legislature, and being in the form of law, may contain other useful and salutary provisions, not obnoxious to any just constitutional exception. It would be inconsistent with all just principles of constitutional law to adjudge these enactments void because they are associated in the same act, but not connected with or dependent on others which are unconstitutional. [Cooley's Constitutional Limitations; 8th Edn. Vol. I, p. 359-360] In R.M.D. Chamarbaugwalla v. Union of India 1957 SCR 930, this Court has observed: The question whether a statute, which is void in part is to be treated as void in toto, or whether it is capable of enforcement as to that part which is valid is one which can arise only with reference to laws enacted by bodies which do not possess unlimited powers of legislation, as, for example, the legislatures in a Federal Union. The limitation on their powers may be of two kinds: It may be with reference to the subject-matter on which they could legislate, as, for example, the topics enumerated in the Lists in the Seventh Schedule in the Indian Constitution, Section 91 and 92 of the Canadian Constitution, and Section 51 of the Australian Constitution; or it may be with reference to the character of the legislation which they could enact in respect of subjects assigned to them, as for example, in relation to the fundamental rights guaranteed in Part III of the Constitution and similar constitutionally protected rights in the American and other Constitutions. When a legislature whose authority is subject to limitations aforesaid enacts a law which is wholly in excess of its powers, it is entirely void and must be completely ignored. But where the legislation falls in part within the area allotted to it and in part outside it, it is undoubtedly void as to the latter; but does it on that: account become necessarily void in its entirety? The answer to this question must depend on whether what is valid could be separated from what is invalid, and that is a question which has to be decided by the court on a consideration of the provisions of the Act. (p. 940). The doctrine of severability has been applied by this Court in cases of challenge to the validity of an amendment on the ground of disregard to the substantive limitations on the amending power, namely, alteration of the basic structure. But only the offending part of the amendment which had the effect of altering the basic structure was struck down while the rest of the amendment was upheld [See: Sri Kesavananda Bharti Sripadagalavaru v. State of Kerala, 1973 Supp. SCR 1; Minerva Mills Ltd. and Ors. v. Union of India and Ors., ; P. Sambhamurthy and Ors. etc v. State of Andhra Pradesh and Anr. ] 28. Is there anything in the procedural limitations imposed by sub-Article (2) of Article 368 which excludes the doctrine of severability in respect of a law which violates the said limitations? Such a violation may arise when there is a composite Bill or what is in statutory context or jargon called a 'Rag-Bag' measure seeking amendments to several statutes under one amending measure which seeks to amend various provisions of the Constitution some of which may attract Clauses (a) to (e) of

the proviso to Article 368(2) and the Bill, though passed by the requisite majority in both the Houses of Parliament has received the assent of the President without it being sent to States for ratification or having been so sent fails to receive such ratification from not less than half the States before the Bill is presented for assent. Such an Amendment Act is within the competence of Parliament insofar as it relates to provisions other than those mentioned in Clauses (a) to (e) of proviso to Article 368(2) but in respect of the amendments introduced in provisions referred to in Clauses (a) to (e) of proviso to Article 368(2), Parliament alone is not competent to make such amendments on account of some constitutionally recognised federal principle being invoked. If the doctrine of severability can be applied it can be upheld as valid in respect of the amendments within the competence of Parliament and only the amendments which Parliament alone was not competent to make could be declared invalid. 29. Is there anything compelling in the proviso to Article 368(2) requiring it to be construed as excluding the doctrine of severability to such an amendment? It is settled rule of statutory construction that "the proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case" and that where "the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its express terms''. [See Madras & Southern Mahratta Railway Co. v. Bezwada Municipality, (1944) 71 I.A. 113 at p. 122; Commissioner of Income Tax, Mysore v. IndoMercantile Bank Ltd. 1959 Supp. (2) SCR 256 at p. 266]. The proviso to Article 368(2) appears to have been introduced with a view to giving effect to the federal principle. In the matter of amendment of provisions specified in Clauses (a) to (e) relating to legislative and executive powers of the States vis-a-vis the Union, the Judiciary, the election of the President and the amending power itself, which have a bearing on the States, the proviso imposes an additional requirement of ratification of the amendment which seeks to effect a change in those provisions before the Bill is presented for the assent of the President. It is salutary that the scope of the proviso is confined to the limits prescribed therein and is not construed so as to take away the power in the main part of Article 368(2). An amendment which otherwise fulfils the requirements of Article 368(2) and is outside the specified cases which require ratification cannot be denied legitimacy on the ground alone of the company it keeps. The main part of Article 368(2) directs that when a Bill which has been passed by the requisite special majority by both the Houses has received the assent of the President "the Constitution shall stand amended in accordance with the terms of the Bill". The proviso cannot have the effect of interdicting this constitutional declaration and mandate to mean that in a case where the proviso has not been complied -- even the amendments which do not fall within the ambit of the proviso also become abortive. The words "the amendment shall also require to be ratified by the legislature" indicate that what is required to be ratified by the legislatures of the States is the amendment seeking to make the change in the provisions referred to in Clauses (a) to (e) of the proviso. The need for and the requirement of the ratification is confined to that particular amendment alone and not in respect of amendments outside the ambit of the proviso. The proviso can have, therefore, no bearing on the validity of the amendments which do not fall within its ambit. Indeed the following observations of this Court in Sajjan Singh case (supra) are apposite: In our opinion, the two parts of Article 368 must on a reasonable construction be harmonised with each other in the sense that the scope and effect of either of them should not be allowed to be unduly reduced or enlarged. 30. During the arguments reliance was placed on the words "before the Bill making provision for such amendment is presented to the President for assent" to sustain the argument that these words imply that the ratification of the Bill by not less than one-half of the States is a condition-precedent for the presentation of the Bill for the assent of the President. It is further argued that a Bill which seeks to

make a change in the provisions referred to in Clauses (a) to (e) of the proviso cannot be presented before the President for his assent without such ratification and if assent is given by the President in the absence of such ratification, the amending Act would be void and ineffective in its entirety. A similar situation can arise in the context of the main part of Article 368(2) which provides: "when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the Members of that House present and voting, it shall be presented to the President". Here also a condition is imposed that the Bill shall be presented to the President for his assent only after it has been passed in each House by the prescribed special majority. An amendment in the First and Fourth Schedules referable to Article 4 can be introduced by Parliament by an ordinary law passed by simple majority. There may be a Bill which may contain amendments made in the First and Fourth Schedules as well as amendments in other provisions of the Constitution excluding those referred to in the proviso which can be amended only by a special majority under Article 368(2) and the Bill after having been passed only by an ordinary majority instead of a special majority has received the assent of the President. The amendments which are made in the First and Fourth Schedules by the said amendment Act were validly made in view of Article 4 but the amendments in other provisions were in disregard to Article 368(2) which requires a special majority. Is not the doctrine of severability applicable to such an amendment so that amendments made in the First and Fourth Schedules may be upheld while declaring the amendments in the other provisions as ineffective? A contrary view excluding the doctrine of severability would result in elevating a procedural limitation on the amending power to a level higher than the substantive limitations. 31. In Bribery Commissioner v. Pedrick Ranasinghe 1956 A.C. 172, the Judicial Committee has had to deal with a somewhat similar situation. This was a case from Ceylon under the Ceylon (Constitution) Order of 1946. Clause (4) of Section 29 of the said order in Council contained the amending power in the following terms: (4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island: Provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under the hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two-thirds of the whole number of Members of the House (including those not present). Every certificate of the Speaker under this sub-section shall be conclusive for all purposes and shall not be questioned in any court of law. [p. 194] In that case, it was found that Section 41 of the Bribery Amendment Act, 1958 made a provision for appointment of a panel by the Governor-General on the advice of the Minister of Justice for selecting members of the Bribery Tribunal while Section 55 of the Constitution vested the appointment, transfer, dismissal and disciplinary control of judicial officers in the Judicial Service Commission. It was held that the legislature had purported to pass a law which, being in conflict with Section 55 of the Order in Council, must be treated, if it is to be valid, as an implied alteration of the Constitutional provisions about the appointment of judicial officers and could only be made by laws which comply with the special legislative procedure laid down in Section 29(4). Since there was nothing to show that the Bribery Amendment Act, 1951 was passed by the necessary two-thirds majority, it was held that "any Bill which does not comply with the condition precedent of the proviso, is and remains, even though it receives the Royal Assent, invalid and ultra vires". Applying the doctrine of severability the Judicial Committee, however, struck down the offending provision, i.e., Section 41 alone. In other words passing of the Bill by a special majority was the condition precedent for presentation of the Bill for the assent. Disregard of such a condition precedent for presenting a Bill for assent did not result in the entire enactment being vitiated and the law being declared invalid in its entirety but it only had

the effect of invalidation of a particular provision which offended against the limitation on the amending power. A comparison of the language used in Clause (4) of Section 29 with that of Article 368(2) would show that both the provisions bear a general similarity of purpose and both the provisions require the passing of the Bill by special majority before it was presented for assent. The same principle would, therefore, apply while considering the validity of a composite amendment which makes alterations in the First and Fourth Schedules as well as in other provisions of the Constitution requiring special majority under Article 368(2) and such a law, even though passed by the simple majority and not by special majority, may be upheld in respect of the amendments made in the First and Fourth Schedules. There is really no difference in principle between the condition requiring passing of the Bill by a special majority before its presentation to the President for assent contained in Article 368(2) and the condition for ratification of the amendment by the legislatures of not less than one-half of the States before the Bill is presented to the President for assent contained in the proviso. The principle of severability can be equally applied to a composite amendment which contains amendments in provisions which do not require ratification by States as well as amendment in provisions which require such ratification and by application of the doctrine of severability, the amendment can be upheld in respect of the amendments which do not require ratification and which are within the competence of Parliament alone. Only these amendments in provisions which require ratification under the proviso need to be struck down or declared invalid. 32. The test of severability requires the Court to ascertain whether the legislature would at all have enacted the law if the severed part was not the part of the law and whether after severance what survives can stand independently and is workable. If the provisions of the Tenth Schedule are considered in the background of the legislative history, namely, the report of the 'Committee on Defections' as well as the earlier Bills which were moved to curb the evil of defection it would be evident that the main purpose underlying the constitutional amendment and introduction of the Tenth Schedule is to curb the evil of defection which was causing immense mischief in our body-politic. The ouster of jurisdiction of Courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedule if it had known that Paragraph 7 was not valid. Nor can it be said that the rest of the provisions of the Tenth Schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 can, therefore, be held to be severable from the rest of the provisions. We accordingly hold on contentions 'C and 'D': That there is nothing in the said proviso to Article 368(2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the Amendment requires ratification from the rest of the provisions of such Bill which do not attract and require such ratification. Having regard to the mandatory language of Article 368(2) that "thereupon the Constitution shall stand amended" the operation of the proviso should not be extended to constitutional amendments in a Bill which can stand by themselves without such ratification. That, accordingly, the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, to the extent of its provisions which are amenable to the legal-sovereign of the amending process of the Union Parliament cannot be overborne by the proviso which cannot operate in that area. There is no justification for the view that even the rest of the provisions of the Constitution (52nd Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368(2) was not so ratified. That Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and, therefore, is a severable part. The remaining provisions of the Tenth Schedule

can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7. 33. Re: Contentions 'E' and 'F': These two contentions have certain over-lapping areas between them and admit of being dealt with together. Paragraph 6(1) of the Tenth Schedule seeks to impart a statutory finality to the decision of the Speaker or the Chairman. The argument is that, this concept of 'finality' by itself, excludes Courts' jurisdiction. Does the word "final'' render the decision of the Speaker immune from Judicial Review? It is now well-accepted that a finality clause is not a legislative magical incantation which has that effect of telling off Judicial Review. Statutory finality of a decision presupposes and is subject to its consonance with the statute. On the meaning and effect of such finality clause, Prof. Wade in 'Administrative Law' 6th Edn. at page 720 says: Many statutes provide that some decision shall be final. That provision is a bar to any appeal. But the courts refuse to allow it to hamper the operation of judicial review. As will be seen in this and the following sections, there is a firm judicial policy against allowing the rule of law to be undermined by weakening the powers of the court. Statutory restrictions on judicial remedies are given the narrowest possible construction, sometimes even against the plain meaning of the words. This is a sound policy, since otherwise administrative authorities and tribunals would be given uncontrollable power and could violate the law at will. 'Finality is a good thing but justice is a better. If a statute says that the decision 'shall be final' or shall be final and conclusive to all intents and purposes' this is held to mean merely that there is no appeal: judicial control of legality is unimpaired. "Parliament only gives the impress of finality to the decisions of the tribunal on condition that they are reached in accordance with the law. This has been the consistent doctrine for three hundred years. Learned Professor further says: The normal effect of a finality clause is therefore to prevent any appeal. There is no right of appeal in any case unless it is given by statute. But where there is general provision for appeals, for example, from quarter sessions to the High Court by case stated, a subsequent Act making the decision of quarter session final on some specific matter will prevent an appeal. But in one case the Court of Appeal has deprived a finality clause of part even of this modest content, holding that a question which can be resolved by certiorari. or declaration can equally well be the subject of a case stated, since this is only a matter of machinery. This does not open the door to appeals generally, but only to appeals by case stated on matters which could equally well be dealt with by certiorari or declaration, i.e., matters subject to judicial review. A provision for finality may be important in other contexts, for example, when the . question is whether the finding of one tribunal may be reopened before another, or whether an interlocutory order is open to appeal... [page 721] Lord Devlin had said "Judicial interference with the executive cannot for long greatly exceed what Whitehall will accept" and said that a decision may be made unreviewable "And that puts the lid on". Commenting on this Prof. Wade says: "But the Anisminic case showed just the opposite, when the House of Lords removed the lid and threw it away." [See: Constitutional Fundamental, the Hamlyn Lectures, 1989 Edn. p.88]. In Durga Shankar Mehta v. Raghuraj Singh the order of the Election Tribunal was made final and conclusive by Section 105 of the Representation of the People Act, 1951. The contention was that the finality and conclusiveness clauses barred the jurisdiction of the Supreme Court under Article 136. This contention was repelled. It was observed: ...but once it is held that it is a judicial tribunal empowered and obliged to deal judicially with disputes arising out of or in connection with election, the overriding power of this Court to grant special leave,

in proper cases, would certainly be attracted and this power. cannot be excluded by any parliamentary legislation. ...But once that Tribunal has made any determination or adjudication on the matter, the powers of this Court to interfere by way of special leave can always be exercised. ...The powers given by Article 136 of the Constitution, however, are in the nature of special or residuary powers which are exerciseable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court of the land... Section 105 of the Representation of the People Act certainly gives finality to the decision of the Election Tribunal so for as that Act is concerned and does not provide for any further appeal but that cannot in any way cut down or affect the overriding powers which this Court can exercise in the matter of granting special leave under Article 136 of the Constitution. [p.522] 34. Again, in Union of India v. Jyoti Prakash Mitter a similar finality clause in Article 217(3) of the Constitution came up for consideration. this Court said: ...The President acting under Article 217(3) performs a judicial function of grave importance under the scheme of our Constitution. He cannot act on the advice of his Ministers. Notwithstanding the declared finality of the order of the President the Court has jurisdiction in appropriate cases to set aside the order, if it appears that it was passed on collateral considerations or the rules of natural justice were not observed, or that the Presient's judgment was coloured by the advice or representation made by the executive or it was founded on no evidence... [p.505] Referring to the expression "final" occurring in Article 311(3) of the Constitution this Court in Union of India and Anr. v. Tulsiram Patel and Ors. (1985) Supp.2 SCR 131 at page 274 held: ...The finality given by Clause (3) of Article 311 to the disciplinary authority's decision that it was not reasonably practicable to hold the inquiry is not binding upon the court. The court will also examine the charge of mala fides, if any, made in the writ petition. In examining the relevancy of the reasons, the court will consider the situation which according to the disciplinary authority, made it come to the conclusion that it was not reasonably practicable to hold the inquiry. If the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by Clause (b).... 35. If the intendment is to exclude the jurisdiction of the superior Courts, the language would quite obviously have been different. Even so, where such exclusion is sought to be effected by an amendment the further question whether such an amendment would be destructive of a basic feature of the Constitution would arise. But comparison of the language in Article 363(1) would bring out in contrast the kind of language that may be necessary to achieve any such purpose. In Brundaban Nayak v. Election Commission of India and Anr. , in spite of finality attached by Article 192 to the decision of the Governor in respect of disqualification incurred by a member of a State Legislature subsequent to the election, the matter was examined by this Court on an appeal by special leave under Article 136 of the Constitution against the decision of the High Court dismissing the writ petition filed under Article 226 of the Constitution. Similarly in Union of India v. Jyoti Prakash Mitter , in spite of finality attached to the order of the President with regard to the determination of age of a Judge of the High Court under Article 217(3) of the Constitution, this Court examined the legality of the order passed by the President during the pendency of an appeal filed under Article 136 of the Constitution. There is authority against the acceptability of the argument that the word "final'' occurring in Paragraph 6(1) has the effect of excluding the jurisdiction of the Courts in Articles 136, 226 and 227. 36. The cognate questions are whether a dispute of the kind envisaged by Paragraph 6 of the Tenth Schedule is in a non-justiciable area and that, at all events, the fiction in Paragraph 6(2) that all

proceedings under Paragraph 6(1) of the Tenth Schedule be deemed to be "proceedings in Parliament" or "Proceedings in the Legislature of a State" attracts immunity from the scrutiny by Courts as under Article 122 or 212, as the case may be. Implicit in the first of these postulates is the premise that questions of disqualification of members of the House are essentially matters pertaining to the Constitution of the House and, therefore, the Legislature is entitled to exert its exclusive power to the exclusion of the judicial power. This assumption is based on certain British legislature practices of the past in an area which is an impalpable congeries of legal rules and conventions peculiar to and characteristic of British Parliamentary traditions. Indeed, the idea appears to have started with the proposition that the Constitution of the House was itself a matter of privilege of the House. Halsbury contains this statement: 1493. Privilege of the House of Commons in relation to its constitution: In addition to possessing a complete control over the regulation of its own proceedings and the conduct of its members, the House of Commons claims the exclusive right of providing, as it may deem fit, for its own proper constitution. [emphasis supplied] [See: Halsbury's Laws of England, 4th Edn. vol.34 pages 603 & 604] But in the Indian Constitutional dispensation the power to decide, a disputed disqualification of an elected member of the House is not treated as a matter of privilege and the power to resolve such electoral disputes is clearly judicial and not legislative in nature. The fact that election disputes were at some stage decided by the House of Commons itself was not conclusive that even their power was legislative. The controversy, if any, in this area is put at rest by the authoritative earlier pronouncements of this Court. 37. In Indira Nehru Gandhi v. Raj narain Beg J., referring to the historical background relating to the resolution of electoral disputes by the House of Commons said: I do not think that it is possible to contend, by resorting to some concept of a succession to the powers of the medieval "High Court of Parliament" in England, that a judicial power also devolved upon our Parliament through the Constituent Assembly, mentioned in Section 8 of the Indian Independence Act of 1947. As already indicated by me, the Constituent Assembly was invested with law making and not judicial powers. Whatever judicial power may have been possessed once by English kings, sitting in Parliament, constituting the highest Court of the realm in medieval England, have devolved solely on the House of Lords as the final court of appeal in England. "King in Parliament" had ceased to exercise judicial powers in any other way long before 1950. And, the House of Commons had certainly not exercised a judicial power as a successor to the one time jurisdiction of the "King in Parliament" with the possible exception of the power to punish for its contempts.... [p.627 & 628] In the same case, Justice Mathew made these observations as to the imperative judicial nature of the power to resolve disputes: The concept of democracy as visualised by the Constitution presupposes the representation of the people in Parliament and State Legislatures by the method of election. And, before an election machinery can be brought into operation, there are three requisites which require to be attended to, namely, (1) there should be a set of laws and rules making provisions with respect to all matters relating to, or in connection with, elections, and it should be decided as to how these laws and rules are to be made; (2) there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should be a judicial tribunal to deal with disputes arising out of or in connection with elections...." [p.504]

In whichever body or authority, the jurisdiction is vested, the exercise of the jurisdiction must be judicial in character. this Court has held that in adjudicating an election dispute an authority is performing a judicial function and a petition for leave to appeal under Article 136 of the Constitution would lie to this Court against the decision notwithstanding the provisions of Article 329(b). [Emphasis supplied] [p.506] It is also useful to recall the following observations of Gajendragadkar J., on the scope of Article 194(3) of the Constitution, which is analogous to Article 105(3) in Special Reference No. 1 of 1964 1965 (1) SCR 413: This clause requires that the powers, privileges and immunities which are claimed by the House must be shown to have subsisted at the commencement of the Constitution, i.e., on January 26, 1950. It is well-known that out of a large number of privileges and powers which the House of Commons claimed during the days of its bitter struggle for recognition, some were given up in course of time, and some virtually faded out by desuetude; and so, in every case where a power is claimed, it is necessary to enquire whether it was an existing power at the relevant time. It must also appear that the said power was not only claimed by the House of Commons, but was recognised by the English Courts. It would obviously be idle to contend that if a particular power which is claimed by the House was claimed by the House of Commons but was not recognised by the English Courts, it would still be upheld under the latter part of Clause (3) only on the ground that it was in fact claimed by the House of Commons. In other words, the inquiry which is prescribed by this clause is: is the power in question shown or proved to have subsisted in the House of Commons at the relevant time? See page 442) This question is answered by Beg, J. in Indira Nehru Gandhi's case: I think, at the time our Constitution was framed, the decision of an election dispute had ceased to be a privilege of the House of Commons in England and therefore, under Article 105(3), it could not be a privilege of Parliament in this country. [p.505] 38. Indeed, in dealing with the disqualifications and the resolution of disputes relating to them under Articles 191 and 192 or Articles 102 and 103, as the case may be, the Constitution has evinced a clear intention to resolve electoral-disputes by resort to the judicial power of the State. Indeed, Justice Khanna in Indira Nehru Gandhi's case said: Not much argument is needed to show that unless there be a machinery for resolving an election dispute and for going into the allegations that elections were not free and fair being vitiated by malpractices, the provision that a candidate should not resort to malpractices would be in the nature of a mere pious wish without any legal sanction. It is further plain that if the validity of the election declared to be valid only if we provide a forum for going into those grounds and prescribe a law for adjudicating upon those grounds.... (See page 468) It is, therefore, inappropriate to claim that the determinative jurisdiction of the Speaker or the Chairman in the Tenth Schedule is not a judicial power and is within the non-justiciable legislative area. The classic exposition of Justice Issacs J., in Australian Boot Trade Employees Federation v. Whybrow & Co. (1910) 10 CLR 266 at page 317, as to what distinguishes a judicial power from a legislative power was referred to with the approval of this Court in Express Newspaper Ltd. v. Union of India at 611. Issacs J., stated: If the dispute is as to the relative rights of parties as they rest on past or present circumstances, the award is in the nature of a judgment, which might have been the decree of an ordinary judicial tribunal acting under the ordinary judicial power. There the law applicable to the case must be observed. If, however, the dispute is as to what shall in the future be the mutual rights and responsibilities of the parties - in other words, if no present rights are asserted or denied, but a future

rule of conduct is to be prescribed, thus creating new rights and obligations, with sanctions for nonconformity then the determination that so prescribes, call it an award, or arbitration, determination, or decision or what you will, is essentially of a legislative character, and limited only by the law which authorises it. If, again, there are neither present rights asserted, nor a future rule of conduct prescribed, but merely a fact ascertained necessary for the practical effectuation of admitted rights, the proceeding, though called an arbitration, is rather in the nature of an appraisement or ministerial act. In the present case, the power to decide disputed disqualification under Paragraph 6(1) is preeminently of a judicial complexion. 39. The fiction in Paragraph 6(2), indeed, places it in the first clause of Article 122 or 212, as the case may be. The words "proceedings in Parliament" or "proceedings in the legislature of a State" in Paragraph 6(2) have their corresponding expression in Articles 122(1) and 212(1) respectively. This attracts an immunity from mere irregularities of procedures. That apart, even after 1986 when the Tenth Schedule was introduced, the Constitution did not evince any intention to invoke Article 122 or 212 in the conduct of resolution of disputes as to the disqualification of members under Articles 191(1) and 102(1). The very deeming provision implies that the proceedings of disqualification are, in fact, not before the House; but only before the Speaker as a specially designated authority. The decision under paragraph 6(1) is not the decision of the House, nor is it subject to the approval by the House. The decision operates independently of the House. A deeming provision cannot by its creation transcend its own power. There is, therefore, ho immunity under Articles 122 and 212 from judicial scrutiny of the decision of the Speaker or Chairman exercising power under Paragraph 6(1) of the Tenth Schedule. 40. But then is the Speaker or the Chairman acting under Paragraph 6(1) a Tribunal? "All tribunals are not courts, though all Courts are Tribunals". The word "Courts" is used to designate those Tribunals which are set up in an organised State for the Administration of Justice. By Administration of Justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish "wrongs". Whenever there is an infringement of a right or an injury, the Courts are there to restore the vinculum juris, which is disturbed. See: Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala and Ors. . In that case Hidayatullah, J. said: ...By "courts" is meant courts of civil judicature and by "tribunals", those bodies of men who are appointed to decide controversies arising under certain special laws. Among the powers of the State is included the power to decide such controversies. This is undoubtedly one of the attributes of the State and is aptly called the judicial power of the State. In the exercise of this power, a clear division is thus noticeable. Broadly speaking, certain special matters go before tribunals, and the residue goes before the ordinary courts of civil judicature. Their procedures may differ, but the functions are not essentially different. What distinguishes them has never been successfully established. Lord Stamp said that the real distinction is that the courts have "an air of detachment". But this is more a matter of age and tradition and is not of the essence. Many tribunals, in recent years, have acquitted themselves so well and with such detachment as to make this test insufficient. Where there is a lis -- an affirmation by one party and denial by another -- and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is an exercise of judicial power. That authority is called a Tribunal, if it does not have all the trappings of a Court. In Associated Cement Companies Ltd. v. P.N. Sharma and Anr. , this Court said: ...The main and the basic test, however, is whether the adjudicating power which a particular authority is empowered to exercise, has been conferred on it by a statute and can be described as a part of the Slate's inherent power exercised in discharging its judicial function. Applying this test, there can be no doubt that the power which the State Government exercises under Rule 6(5) and Rule

6(6) is a part of the State's judicial power.... There is, in that sense, a lis; there is affirmation by one party and denial by another, and the dispute necessarily involves the rights and obligations of the parties to it. The order which the State Government ultimately passes is described as its decision and it is made final and binding By these well-known and accepted tests of what constitute a Tribunal, the Speaker or the Chairman, acting under paragraph 6(1) of the Tenth Schedule is a Tribunal.
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Registered: 2012-02-14 Posts: 476 41. In the operative conclusions we pronounced on 12th November, 1991 we indicated in Clauses G and H therein that judicial review in the area is limited in the manner indicated. If the adjudicatory authority is a tribunal, as indeed we have held it to be, why, then, should its scope be so limited? The finality clause in paragraph 6 does not completely exclude the jurisdiction of the courts under Articles 136, 226 and 227 of the Constitution. But it does have the effect of limiting the scope of the jurisdiction. The principle that is applied by the courts is that in spite of a finality clause it is open to the court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority. Such an action can be ultra vires for the reason that it is in contravention of a mandatory provision of the law conferring on the authority the power to take such an action. It will also be ultra vires the powers conferred on the authority if it is vitiated by mala fides or is colourable exercise of power based on extraneous and irrelevant considerations. While exercising their certiorari jurisdiction, the courts have applied the test whether the impugned action falls within the jurisdiction of the authority taking the action or it falls outside such jurisdiction. An ouster clause confines judicial review in respect of actions falling outside the jurisdiction of the authority taking such action but precludes challenge to such action on the ground of an error committed in the exercise of jurisdiction vested in the authority because such an action cannot be said to be an action without jurisdiction. An ouster clause attaching finality to a determination, therefore, does Oust certiorari to some extent and it will be effective in ousting the power of the court to review the decision of an inferior tribunal by certiorari if the inferior tribunal has not acted without jurisdiction and has merely made an error of law which does not effect its jurisdiction and if its decision is not a nullity for some reason such as breach of rule of natural justice. [See: Administrative Law by H.W.R. Wade, 6th Edn., pp. 724-726; Anisminic Ltd. v. Foreign Compensation Commission, 1969 (2) AC 147; S.E. Asia Fire Bricks v. Non-Metallic Products 1981 AC. 363] In Makhan Singh v. State of Punjab , while considering the scope of judicial review during the operation of an order passed by the President under Article 359(1) suspending the fundamental right guaranteed under Article 21 of the Constitution, it has been held that the said order did not preclude the High Court entertaining a petition under Article 226 of the Constitution where a detenu had been detained in violation of the mandatory provisions of the detention law or where the detention has been ordered malafide. It was emphasised that the exercise of a power malafide was wholly outside the scope of the Act conferring the power and can always be successfully challenged, (p.828) Similarly in State of Rajasthan v. Union of India , decided by a seven-judge bench, this Court was considering the challenge to the validity of a proclamation issued by the President of India under Article 356 of the Constitution. At the relevant time under Clause (5) of Article 356, the satisfaction of the President mentioned in Clause (1) was final and conclusive and it could not be questioned in any court on any ground. All the learned judges have expressed the view that the proclamation could be

open to challenge if it is vitiated by malafides. While taking this view, some of the learned judges have made express reference to the provisions of Clause (5). In this context, Bhagwati, J (as the learned Chief Justice then was) speaking for himself and A.C. Gupta, J. has staled: Of course by reason of Clause (5) of Article 356, the satisfaction of the President is final and conclusive and cannot be assailed on any ground but this immunity from attack cannot apply where the challenge is not that the satisfaction is improper or unjustified, but that there is no satisfaction at all. In such a case it is not the satisfaction arrived at by the President which is challenged, but the existence of the satisfaction itself. Take, for example, a case where the President gives the reason for taking action under Article 356, Clause (1) and says that he is doing so, because the Chief Minister of the State is below five feet in height and, therefore, in his opinion a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Can the so-called satisfaction of the President in such a case not be challenged on the ground that it is absurd or perverse or mala fide or based on a wholly extraneous and irrelevant ground and is, therefore, no satisfaction at all. (pp. 82-83) Untwalia, J. has held as follows: I, however, must hasten to add that I cannot persuade myself to subscribe to the view that under no circumstances an order of proclamation made by the President under Article 356 can be challenged in a Court of Law. And, I am saying so notwithstanding the provision contained in Clause (5) of the said Article introduced by the Constitution (38th Amendment) Act, 1975. (p.94) But then, what did I mean by saying that a situation may arise in a given case where the jurisdiction of the Court is not completely ousted? I mean this. If, without entering into the prohibited area, remaining on the fence, almost on the face of the impugned order or the threatened action of the President it is reasonably possible to say that in the eye of law it is no order or action as it is in flagrant violation of the very words of a particular Article, justifying the conclusion that the order is ultra vires, wholly illegal or passed mala fide, in such a situation it will be tantamount in law to be no order at all. Then this Court is not powerless to interfere with such an order and may, rather, must strike it down. (p.95) Similarly, Fazal Ali, J. has held: Even if an issue is not justiciable, if the circumstances relied upon by the executive authority are absolutely extraneous and irrelevant, the Courts have the undoubted power to scrutinise such an exercise of the executive power. Such a judicial scrutiny is one which comes into operation when the exercise of the executive power is colourable or mala fide and based on extraneous or irrelevant considerations. (p.116) It is true that while an order passed by the President under Article 356 is put beyond judicial scrutiny by Clause (5) of Article 356, but this does not mean that the Court possesses no jurisdiction in the matter at all. Even in respect of Clause (5) of Article 356, the Courts have a limited sphere of operation in that on the reasons given by the President in his order if the Courts find that they are absolutely extraneous and irrelevant and based on personal and illegal considerations the Courts are not powerless to strike down the order on the ground of mala fide if proved. (p.120) In Union of India v. Jyoti Prakash Mitter (supra), dealing with the decision of the President under Article 217(3) on the question as to the age of a judge of the High Court, requiring a judicial approach it was held that the field of judicial review was enlarged to cover violation of rules of natural justice as well as an order based on no evidence because such errors are errors of jurisdiction. In Union of India and Anr. v. Tulsiram Patel and Ors. (supra) this Court was dealing with Article 311(3) of the Constitution which attaches finality to the order of the disciplinary authority on the question whether it was reasonably practicable to hold an inquiry. It was observed that though the 'finaility' clause did not bar jurisdiction it did indicate that the jurisdiction is limited to certain grades.

In the light of the decisions referred to above and the nature of function that is exercised by the Speaker/Chairman under paragraph 6, the scope of judicial review under Articles 136, 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under paragraph 6 would be confined to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity. In view of the limited scope of judicial review that is available on account of the finality clause in paragraph 6 and also having regard to the constitutional intendment and the status of the repository of the adjudicatory power i.e., Speaker/Chairman, judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings. Exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence. 42. In the result, we hold on contentions E and F: That the Tenth Schedule does not, in providing for an additional grant for disqualification and for adjudication of disputed disqualifications, seek to create a non-justiciable constitutional area. The power to resolve such disputes vested in the Speaker or Chairman as a judicial power. That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6(1) docs not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned. That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as understood and explained in Keshav Singh's Case (Spl. Ref. No. 1, 1965 (1) SCR 413 to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regarding to the words "be deemed to be proceedings in Parliament" or, "proceedings in the Legislature of a State" confines the scope of the fiction accordingly. The speakers/Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review. However, having regard to the Constitutional Schedule in the Tenth Schedule, judicial review should not cover; any stage prior to the making of a decision by the Speakers/ Chairmen. Having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence. 43. Re: Contention (G): The argument is that an independent adjudicatory machinery for resolution of electoral disputes is an essential incident of democracy, which is a basic feature of Indian constitutionalism. It is urged that investiture of the power of resolving such disputes in the Speake or the Chairman does not answer this test of an independent, impartial quality of the adjudicatory machinery. It is therefore, urged that Paragraph 6(1) of the Tenth Schedule is violative of a basic feature. It is also urged that a Speaker, under the Indian Parliamentary tradition is not required to resign his membership of the political party on whose strength he gets elected and that inevitably the decision of the Speaker is not free from the lugs and pulls of political polarisations. It is urged that the Speaker who has not resigned his membership of the political party cannot be impartial and, at all events, his functioning will not be free from reasonable likelihood of bias.

44. The Tenth Schedule breaks away from the constitutional pattern for resolution disqualifications envisaged in Articles 103 and 192 of the Constitution which vest jurisdiction in this behalf in the President or the Governor acting according to the opinion of Election Commission. The disqualifications for defection could very well have been included in Article 102(1) or 191(1) as a ground, additional to the already existing grounds under Clauses (a) to (e) in which event, the same dispute resolution machinery would have dealt with the disqualifications for defections also. But the Tenth Schedule, apparently, attempted a different experiment in respect of this particular ground of disqualification. 45. The question is, whether the investiture of the determinative jurisdiction in the Speaker would by itself stand vitiated as denying the idea of an independent adjudicatory authority. We are afraid the criticism that the provision incurs the vice of unconstitutionality ignores the high status and importance of the office of the Speaker in a Parliamentary democracy: The office of the Speaker is held in the highest respect and esteem in Parliamentary traditions. The evolution of the institution of Parliamentary democracy has as its pivot the institution of the Speaker. 'The Speaker holds a high, important and ceremonial office. All questions of the well being of the House are matters of Speaker's concern'. The Speaker is said to be the very embodiment of propriety and impartiality. He performs wide ranging functions including the performance of important functions of a judicial character. Mavalankar, who was himself a distinguished occupant of that high office, says: In parliamentary democracy, the office of the Speaker is held in very high esteem and respect. There are many reasons for this. Some of them are purely historical and some are inherent in the concept of parliamentary democracy and the powers and duties of the Speaker. Once a person is elected Speaker, he is expected to be above parties, above politics. In other words, he belongs to all the members or belongs to none. He holds the scales of justice evenly irrespective of party or person, though no one expects that he will do absolute justice in all matters; because, as a human being he has his human drawbacks and shortcomings. However, everybody knows that he will intentionally do no injustice or show partiality. "Such a person is naturally held in respect by all. [See: G.V. Mavalankar: The Office of Speaker, Journal of Parliamentary Information, April 1956, Vol.2, No. 1, p.33 Pandit Nehru referring to the office of the Speaker said: ...The Speaker represents the House. He represents the dignity of the House, the freedom of the House and because the House represents the nation, in a particular way, the Speaker becomes the symbol of the nation's freedom and liberty. There fore, it is right that that should be an honoured position, a free position and should be occupied always by men of outstanding ability and impartiality. [See: HOP. Deb. Vol.IX (1954), CC 3447-48] Referring to the Speaker, Erskine May says: The Chief characteristics attaching to the office of Speaker in the House of Commons are authority and impartiality. As a symbol of his authority he is accompanied by the Royal Mace which is borne before him when entering and leaving the chamber and upon state occasions by the Serjeant at Arms attending the House of Commons, and is placed upon the table when he is in the chair. In debate all speeches are addressed to him and he calls upon Members to speak -- a choice which is not open to dispute. When he rises to preserve order or to give a ruling on a doubtful point he must always be heard in silence and no Member may stand when the Speaker is on his feet. Reflections upon the character or actions of the Speaker may be punished as breaches of privilege. His action cannot be criticised incidentally in debate or upon any form of proceeding except a substantive motion. His authority in the chair is fortified by many special powers which are referred to below. Confidence in the impartiality of the Speaker is an indispensable condition of the successful working of procedure, and many conventions exist which have as their object not only to ensure the impartiality of the Speaker but also to ensure that his impartiality is generally recognised...

[See: Erskine May - Parliamentary Practice - 20th edition p.234 and M.N. Kaul and S.L. Shakdher in 'Practice and Procedure of Parliament' 4th Edition, say: The all important conventional and ceremonial head of Lok Sabha is the Speaker. Within the walls of the House his authority is supreme. This authority is based on the Speaker's absolute and unvarying impartiality -- the main feature of his office, the law of its life. This obligation of impartiality appears in the constitutional provision which ordains that the Speaker is entitled to vote only in the case of equality of votes. Moreover, his impartiality within the House is secured by the fact that he remains above all considerations of party or political career, and to that effect he may also resign from the party to which he belonged. [p.104] 46. It would, indeed, be unfair to the high traditions of that great office to say that the investiture in it of this jurisdiction would be vitiated for violation of a basic feature of democracy. It is inappropriate to express distrust in the high office of the Speaker, merely because some of the Speakers are alleged, or even found, to have discharged their functions not in keeping with the great traditions of that high office. The Robes of the Speaker do change and elevate the man inside. 47. Accordingly, we hold that the vesting of adjudicatory functions in the Speakers/. Chairmen would not by itself vitiate the provision on the ground of likelihood of political bias is unsound and is rejected. The Speaker/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and arc guardians of the rights and privileges of the House. They are expected to and do take far reaching decisions in the functioning of Parliamentary democracy. Vestiture of power of adjudicate questions under the Tenth Schedule in such a. constitutional functionaries should not be considered exceptionable. 48. Re: Contention H: In the view we take of the validity of paragraph 7 it is unnecessary to pronounce on the contention whether judicial review is a basic feature of the Constitution and paragraph 7 of the Tenth Schedule violates such basic structure. 49. We may now notice one other contention as to the construction of the expression 'any direction' occurring in paragraph 2(1)(b). It is argued that if the expression really attracts within its sweep every direction or whip of any kind whatsover it might be unduly restrictive of the freedom of speech and the right of dissent and that, therefore, should be given a meaning limited to the objects and purposes of the Tenth Schedule. learned Counsel relied upon and commended to us the view taken by the minority in the Full bench decision of Punjab and Haryana High Court in Parkash Singh Badal and Ors. v. Union of India and Ors. where such a restricted sense was approved. Tewatia J said: If the expression: "any direction" is to be literally construed then it would make the people's representative a wholly political party's representative, which decidedly he is not. The Member would virtually lose his identity and would become a rubber stamp in the hands of his political party. Such interpretation of this provision would cost it, its constitutionality, for in that sense it would become destructive of democracy/parliamentary democracy, which is the basic feature of the Constitution, Where giving of narrow meaning and reading down of the provision can save it from the vice of unconstitutionality the Court should read it down particularly when it brings the provision in line with the avowed legislative intent.... ...the purpose of enacting paragraph 2 could be no other than to insure stability of the democratic system, which in the context of Cabinet/Parliamentary form of Government on the one hand means that a political party or a coalition of political parties which has been voted to power, is entitled to govern till the next election, and on the other, that opposition has a right to censure the functioning of the Government and even overthrow it by voting it out of power if it had lost the confidence of the people, then voting or abstaining from voting by a Member contrary to any direction issued by his party would by necessary implication envisage voting or abstaining from voting in regard to a motion

or proposal, which if failed, as a result of lack of requisite support in the House, would result in voting the Government out of power, which consequence necessarily follows due to well established constitutional convention only when either a motion of no confidence is passed by the House or it approves a cut-motion in budgetary grants. Former because of the implications of Article 75(3) of the Constitution and latter because no Government can function without money and when Parliament declines to sanction money, then it amounts to an expression of lack of confidence in the Government. When so interpreted the Clause (b) of sub-paragraph (1) of paragraph 2 would leave the Members free to vote according to their views in the House in regard to any other matter that comes up before it. [p.313 & 314] The reasoning of the learned judge that a wider meaning of the words "any direction" would cost it its constitutionality' does not commend to us. But we approve the conclusion that these words require to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Tenth Schedule. Those objects and purposes define and limit the contours of its meaning. The assignment of a limited meaning is not to read it down to promote its constitutionality but because such a construction is a harmonious construction in the context. There is no justification to give the words the wider meaning. While construing Paragraph 2(1)(b) it cannot be ignored that under the Constitution members of Parliament as well as of the State Legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the Constitution and the rules and standing orders regulating the Procedure of the House [Article 105(1) and Article 194(1)]. The disqualification imposed by Paragraph 2(1)(b) must be so construed as not to unduly impinge on the said freedom of speech of a member. This would be possible if Paragraph 2(1)(b) is confined in its scope by keeping in view the object underlying the amendments contained in the Tenth Schedule, namely, to curb the evil or mischief of political defections motivated by the lure of office or other similar considerations. The said object would be achieved if the disqualification incurred on the ground of voting or abstaining from voting by a member is confined to cases where a change of Government is likely to be brought about or is prevented, as the case may be, as a result of such voting or abstinence or when such voting or abstinence is on a matter which was a major policy and programme on which the political party to which the member belongs went to the polls. For this purpose the direction given by the political party to a member belonging to it, the violation of which may entail disqualification under Paragraph 2(1)(b), would have to be limited to a vote on motion of confidence or no confidence in the Government or where the motion under consideration relates to a matter which was an integral policy and programme of the political party on the basis of which it approached the electorate. The voting or abstinence from voting by a member against the direction by the political party on such a motion would amount to disapproval of the programme on the basis of which he went before the electorate and got himself elected and such voting or abstinence would amount to a breach of the trust reposed in him by the electorate. Keeping in view the consequences of the disqualification i.e., termination of the membership of a House; it would be appropriate that the direction or whip which results in such disqualification under Paragraph 2(1)(b) is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the disqualification under Paragraph 2(1)(b) of the Tenth Schedule so that the member concerned has fore-knowledge of the consequences flowing from his conduct in voting or abstaining from voting contrary to such a direction. 50. There are some submissions as to the exact import of a "split" -- whether it is to be understood an instantaneous, one time event or whether a "split" can be said to occur over a period of time. The hypothetical poser was that if one-third of the members of a political party in the legislature brokeaway from it on a particular day and a few more members joined the splinter group a couple of days

later, would the latter also be a part of the 'split' group. This question of construction cannot be in vaccuo. In the present cases, we have dealt principally with constitutional issues. The meaning to be given to "split" must necessarily be examined in a case in which the question arises in the context of its particular facts. No hypothetical predications can or need be made. We, accordingly, leave this question open to be decided in an appropriate case. 51. Before parting with the case, we should advert to one other circumstance. During the interlocutory stage, the Constitution bench was persuaded to make certain interlocutory orders which, addressed as they were to the Speaker of the House, (though, in a different capacity as an adjudicatory forum under the Tenth Schedule) engendered complaints of disobedience culminating in the filing of petitions for initiation of proceedings of contempt against the Speaker. It was submitted that when the very question of jurisdiction of the Court to deal with the matter was raised and even before the constitutionality of Paragraph 7 had been pronounced upon, self restraint required that no interlocutory orders in a sensitive area of the relationship between the legislature and the Courts should have been made. The purpose of interlocutory orders is to preserve in status-quo the rights of the parties, so that, the proceedings do not become infructuous by any unilateral overt acts by one side or the other during its pendency. One of the contentions urged was as to the invalidity of the amendment for non-compliance with the proviso to Article 368(2) of the Constitution. It has now been unanimously held that Paragraph 7 attracted the proviso to Article 368(2). The interlocutory orders in this case were necessarily justified so that, no land-slide changes were allowed to occur rendering the proceedings ineffective and infructuous. 52. With the finding and observations as aforesaid W.P.No. 17 of 1991 is dismissed. Writ petition in Rule No. 2421 of 1990 in the High Court of Gauhati is remitted back to the High Court for disposal in accordance with law and not inconsistent with the findings and observations contained in this order. J.S. Verma, J. This matter relating to disqualification on the ground of defection of some members of the Nagaland Legislative Assembly under the Tenth Schedule inserted by the Constitution (Fifty-Second Amendment) Act, 1985, was heard along with some other similar matters relating to several Legislative Assemblies including those of Manipur, Meghataya, Madhya Pradesh, Gujarat and Goa, since all of them involved the decision of certain constitutional questions relating to the constitutional validity of para 7 of the Tenth Schedule and consequently the validity of the Constitution (Fifty-Second Amendment) Act, 1985 itself. At the hearing, several learned Counsel addressed us on account of which the hearing obviously took some time. Even during the course of the hearing, the actions of some Speakers tended to alter the status quo, in some cases resulting in irreversible consequences which could not be corrected in the event of para 7 of the Tenth Schedule being held invalid or the impugned orders of the Speakers being found justiciable and, on merits illegal and, therefore, the urgency increased of deciding the questions debated before us at the earliest. For this reason, we indicated during the course of the hearing that we would pronounce our operative conclusions soon after conclusion of the hearing with reasons therefore to follow. Accordingly, on conclusion of the hearing on November 1, 1991, we indicated that the operative conclusions would be pronounced by us at the next sitting of the Bench when it assembled on November 12, 1991 after the Diwali Vaction. The operative conclusions of the majority (Venkatachaliah, Reddy and Agrawal, JJ.) as well as of the minority (Lalit Mohan Sharma and J.S. Verma, JJ.) were thus pronounced on November 12, 1991. We are now indicating herein our reasons for the operative conclusions of the minority view. 54. The unanimous opinion according to the majority as well as the minority is that para 7 of the Tenth Schedule enacts a provision for complete exclusion of judicial review including the jurisdiction of the Supreme Court under Article 136 and of the High Courts under Articles 226 and 227 of the Constitution and, therefore, it makes in terms and in effect a change in Articles 136, 226 and 227 of

the Constitution which attracts the proviso to Clause (2) of Article 368 of the Constitution; and, therefore, ratification by the specified number of State Legislatures before the Bill was presented to the President for his assent was necessary, in accordance therewith. The majority view is that in the absence of such ratification by the State Legislatures, it is para 7 alone of the Tenth Schedule which is Unconstitutional; and it being severable from the remaining part of the Tenth Schedule, para 7 alone is liable to be struck down rendering the Speakers' decision under para 6 that of a judicial tribunal amenable to judicial review by the Supreme Court and the High Courts under Articles 136, 226 and 227. The minority opinion is that the effect of invalidity of para 7 of the Tenth Schedule is to invalidate the entire Constitution (Fifty-Second Amendment) Act, 1985 which inserted the. Tenth Schedule since the President's assent to the Bill without prior ratification by the State Legislatures is non est.The minority view also is that para 7 is not severable from the remaining part of the Tenth Schedule and the Speaker not being an independent adjudicatory authority for this purpose as contemplated by a basic feature of democracy, the remaining part of the Tenth Schedule is in excess of the amending powers being violative of a basic feature of the Constitution. In the minority opinion, we have held that the entire Constitution (Fifty-Second Amendment) Act, 1985 is unconstitutional and an abortive attempt to make the Constitutional Amendment indicated therein. 55. Before proceeding to give our detailed reasons, we reproduce the operative conclusions pronounced by us on November 12, 1991 in the minority opinion (Lalit Mohan Sharma and J.S. Verma, JJ.) as under: For the reasons to be given in our detailed judgment to follow, our operative conclusions in the minority opinion on the various constitutional issues are as follows: 1. Para 7 of the Tenth Schedule, in clear terms and in effect, excludes the jurisdiction of all courts, including the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 to entertain any challenge to the decision under para 6 on any ground even of illegality or perversity, not only at an interim stage but also after the final decision on the question of disqualification on the ground of defection. 2. Para 7 of the Tenth Schedule, therefore, in terms and in effect, makes a change in Article 136 in Chapter IV of Part V; and Articles 226 and 227 in Chapter V of Part VI of the Constitution attracting the proviso to Clause (2) of Article 368. 3. In view of para 7 in the Bill resulting in the Constitution (Fifty-Second Amendment) Act, 1985, it was required to be ratified by the Legislature of not less than one-half of the States as a condition precedent before the Bill could be presented to the President for assent, in accordance with the mandatory special procedure prescribed in the proviso to Clause (2) of Article 368 for exercise of the constituent power. Without ratification by the specified number of State Legislatures, the stage for presenting the Bill for assent of the President did not reach and, therefore, the so-called assent of the President was non est and did not result in the Constitution standing amended in accordance with the terms of the Bill. 4. In the absence of ratification by the specified number of State Legislatures before presentation of the Bill to the President for his assent, as required by the proviso to Clause (2) of Article 368, it is not merely para 7 but, the entire Constitution (Fifty-Second Amendment) Act, 1985 which is rendered unconstitutional, since the constituent power was not exercised as prescribed in Article 368, and therefore, the Constitution did not stand amended in accordance with the terms of the Bill providing for the amendment. 5. Doctrine of Severability cannot be applied to a Bill making a constitutional amendment where any part thereof attracts the proviso to Clause (2) of Article 368. 6. Doctrine of Severability is not applicable to permit striking down para 7 alone saving the remaining provisions of the Bill making the Constitutional Amendment on the ground that para 7 alone attracts the proviso to Clause (2) of Article 368.

7. Even otherwise, having regard to the provisions of the Tenth Schedule of the Constitution inserted by the Constitution (Fifty-Second Amendment) Act, 1985, the Doctrine of Severability does not apply to it. 8. Democracy is a part of the basic structure of the Constitution and free and fair elections with provision for resolution of disputes relating to the same as also for adjudication of those relating to subsequent disqualification by an independent body outside the House are essential features of the democratic system in our Constitution. Accordingly, an independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House is envisaged as an attribute of this basic feature. The tenure of the Speaker who is the authority in the Tenth Schedule to decide this dispute is dependent on the continuous support of the majority in the House and, therefore, he (the Speaker) does not satisfy the requirement of such an independent adjudicatory authority; and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature. 9. Consequently, the entire Constitution (Fifty-Second Amendment) Act, 1985 which inserted the Tenth Schedule together with Clause (2) in Articles 102 and 191, must be declared unconstitutional or an abortive attempt to so amend the Constitution. 10. It follows that all decisions rendered by the several Speakers under the Tenth Schedule must also be declared nullity and liable to be ignored. 11. On the above conclusions, it does not appear necessary or appropriate to decide the remaining questions urged. 56. It is unnecessary in this judgment to detail the facts giving rise to the debate on the constitutional issues relating to the validity of the Tenth Schedule, more particularly para 7 therein, introduced by the Constitution (Fifty-Second Amendment) Act, 1985. Suffice it to say that these matters arise out of certain actions of the Speakers of several Legislative Assemblies under the Tenth Schedule. Arguments on these questions were addressed to us by several learned counsel, namely, the learned Attorney General, S/Shri A.K. Sen, Shanti Bhushan, M.C. Bhandare, F.S. Nariman, Soli J. Sorabjee, R.K. Garg, Kapil Sibal, M.R. Sharma, Ram Jethmalani, N.S. Hegde, O.P. Sharma, Bhim Singh and R.F. Nariman. It may be mentioned that some learned Counsel modified their initial stand to some extent as the hearing progressed by advancing alternative arguments as well. Accordingly, the several faces of each constitutional issue debated before us were fully focussed during the hearing. The main: debate, however, was on the construction of paras 6 and 7 of the Tenth Schedule and the validity of the Constitutional Amendment. Arguments were also addressed on the question of violation, if any, of any basic feature of the Constitution by the provisions of the Tenth Schedule. 57. The points involved in the decisions of the constitutional issues for the purpose of our opinion may be summarised broadly as under: (A) Construction of para 6 of the Tenth Schedule. Its effect and the extent of exclusion of judicial review thereby. (B) Construction of para 7 of the Tenth Schedule. Its effect and the extent of exclusion of judical review thereby. (C) In case of total exclusion of judicial review including the jurisdiction of Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution by the Tenth Schedule, does para 7 make a change in these Articles attracting the proviso to Clause (2) of Article 368 of the Constitution? (D) The effect of absence of prior ratification by the State Legislatures before the Bill making provisions for such amendment was presented to the President for assent, on the constitutional validity of the Tenth Schedule. (E) Severability of para 7 from the remaining part of the Tenth Schedule and its effect on the question of constitutional validity of the Tenth Schedule.

(F) Violation of basic feature of the Constitution, if any, by the Tenth Schedule as a whole or any part thereof and its effect on the constitutionality for this reason. (G) Validity of the Tenth Schedule with reference to the right of dissent of members with particular reference to Article 105. 58. As indicated by us in our operative conclusions pronounced earlier, we need not express our concluded opinion on the points argued before us which are not necessary for supporting the conclusion reached by us that the entire Tenth Schedule and consequently the Constitution (FiftySecond Amendment) Act, 1985 is unconstitutional on the view we have taken on the other points. We are, therefore, giving our reasons only in respect of the points decided by us leading to the conclusion we have reached. 59. At this stage, it would be appropriate to mention the specific stand of the Speakers taken at the hearing. The learned Counsel who appeared for the several Speakers clearly stated that they were instructed to apprise us that the Speakers did not accept the jurisdiction of this Court to entertain these matters in view of the complete bar on jurisdiction of the courts enacted in para 7 read with para 6 of the Tenth Schedule. Accordingly, they abstained from addressing us on the merits of the impugned orders which led to these matters being brought in this Court in spite of our repeated invitation to them to also address us on merits in each case, which all the other learned Counsel did. No doubt, this Court's jurisdiction to decide the constitutional validity of the Tenth Schedule was conceded, but no more. 60. It is in these extra-ordinary circumstances that we had to hear these matters. We need not refer herein to the details of any particular case since the merits of each case are dealt separately in the order of that case. Suffice it to say that the unanimous view of the Bench is that the Speakers' decision disqualifying a member under the Tenth Schedule is not immune from judicial scrutiny. According to the majority it is subject to judicial scrutiny on the ground of illegality or perversity while in the minority view, it is a nullity liable to be so declared and ignored. 61. We consider it apposite in this context to recall the duty of the court in such delicate situations. This is best done by quoting Chief Justice Marshall in Cohens v. Virginia, 6 Wheat 264, 404, 5 L.Ed. 257, 291 (1821), wherein he said: It is most true, that this Court will not take jurisdiction if it should not: but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one of the other would be reason to the constitution. Questions may occur which we would gladly avoid, but we cannot, avoid them. All we can do, is to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the Constitution and laws of the United States. We find no exception to this grant, and we cannot insert one. xxx xxx xxx ... If the question cannot be brought in a court, then there is no case in law or equity, and no jurisdiction is given by the words of the article. But if, in any controversy depending in a court, the cause should depend on the validity of such a law, that would be a case arising under the constitution, to which the judicial power of the United States would extend.... (emphasis supplied) More recently, Patanjali Sastri, CJ, while comparing the role of this Court in the constitutional scheme with that of the U.S. Supreme Court, pointed out in the State of Madras v. V.G. Row 1952 SCR 597 that the duty of this Court flows from express provisions in our Constitution while such power in the

U.S. Supreme Court has been assumed by the interpretative process giving a wide meaning to "due process" clause. Sastri, CJ, at p.605, spoke thus: Before proceeding to consider this question, we think it right to point out, what is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike as in America where the Supreme Court has assumed extensive powers of reviewing legislative acts under cover of the widely interpreted 'due process' clause in the Fifth and Fourteenth Amendments. If, then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the 'fundamental rights', as to which this Court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute. We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the courts in the new set up are out to seek clashes with the legislatures in the country. (emphasis supplied) 62. We are in respectful agreement with the above statement of Sastri, CJ, and wish to add that even though such an obvious statement may have been necessary soon after the Constitution came into force and may not be a necessary reminder four decades later at this juncture, yet it appears apposite in the present context to clear the lingering doubts in some minds. We have no hesitation in adding further that while we have no desire to clutch at jurisdiction, at the same time we would not be deterred in the performance of this constitutional duty whenever the need arises. 63. We would also like to observe that unlike England, where there is no written Constitution and Parliament is supreme, in our country there is a written Constitution delineating the spheres of jurisdiction of the legislature and the judiciary whereunder the power to construe the meaning of the provisions in the Constitution and the laws is entrusted to the judiciary with finality attached to the decision of this Court inter alia by Article 141 about the true meaning of any enacted provision and Article 144 obliges all authorities in the country to act in aid of this Court. It is, therefore, not permissible in our constitutional scheme for any other authority to claim that power in exclusivity, or in supersession of this Court's verdict. Whatever be the controversy prior to this Court entertaining such a matter, it must end when the court is served of the matter for pronouncing its verdict and it is the constitutional obligation of every person and authority to accept its binding effect when the decision is rendered by this Court. It is also to be remembered that in our constitutional scheme based on democratic principles which include governance by rules of law, every one has to act and perform his obligations according to the law of the land and it is the constitutional obligation of this Court to finally say what the law is. We have no doubt that the Speakers and all others sharing their views are alive to this constitutional scheme, which is as much the source of their jurisdiction as it is of this Court and also conscious that the power given to each wing is for the performance of a public duty as a constitutional obligation and not for self-aggrandisement. Once this perception is clear to all, there can be no room for any conflict.
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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 subparagraph (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 subparagraph (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 VicePresident 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.

Dr. Mahachandra Prasad Singh vs Chairman, Bihar Legislative Case No.: Writ Petition (civil) 322 of 2004 - Bench: CJI R.C. Lahoti, G. P. Mathur & P.K. Balasubramanyan - Date Of Judgment: 27/10/2004 JUDGMENT: (with W.P. (Civil) No. 370 of 2004) G. P. Mathur, J. 1. This petition, under Article 32 of the Constitution, has been filed for quashing the order dated 26th June, 2004 of Chairman of Bihar Legislative Council holding that the petitioner is disqualified for being a member of the House under paragraph 2(1)(a) of the Tenth Schedule read with Article 191(2) of the Constitution and consequently the seat held by him in the Bihar Legislative Council had fallen vacant from the said date. 2. The petitioner was elected as a member of the Bihar Legislative Council (MLC) from Tirhut Graduate Constituency as a candidate of Indian National Congress. The notification for holding elections to Fourteenth Lok Sabha was issued in March, 2001. The petitioner contested the said election from Maharajganj Parliamentary Constituency as an independent candidate. Shri Salman Rageev, a member of Bihar Legislative Council, sent a petition to the Chairman of the Legislative Council on 10th June, 2004 stating, inter alia, that the petitioner, who was a member of the Congress Party, had contested the parliamentary election from Maharajganj Constituency as an independent candidate and consequently in view of the provisions of the Tenth Schedule to the Constitution he had become disqualified for being a member of the House. The petitioner was asked to submit his explanation vide letter dated 12th June, 2004 of the Secretary of the Council. After considering the explanation offered by the petitioner, the Chairman of the Legislative Council passed the impugned order dated 26th June, 2004 holding that the petitioner had contested the election for Bihar Legislative Council in the year 1998 as a candidate of the Congress Party and was a member of the said political party and that he had contested the Lok Sabha Election, 2004, as an independent candidate, and thus he had voluntarily given up his membership of the Congress party and, therefore, he was disqualified for being a member of the House in view of paragraph 2(1)(a) of the Tenth Schedule read with Article 191 (2) of the Constitution and the seat held by him in the House has become vacant. 3. Shri P.S. Mishra, learned senior counsel, has raised three contentions in assailing the order dated 26th June, 2004 passed by the Chairman, Bihar Legislative Council. The first submission is that in absence of compliance of Rules 6 and 7 of the Bihar Legislative Council Members (Disqualification on ground of Defection) Rules, 1994, the assumption of jurisdiction by the Chairman in initiating the proceedings, whereunder the petitioner was held to be disqualified for being a member of the House, was illegal. The second submission is that there was violation of principles of natural justice as the material relied upon by the Chairman was not disclosed to the petitioner nor a proper opportunity of personal hearing was afforded to him. The third and the last submission is that the petitioner had not voluntarily given up membership of a political party by contesting the Lok Sabha Election as an independent candidate and, therefore, he had not incurred any disqualification within the meaning of paragraph 2(1)(a) of the Tenth Schedule. 4. Before examining the contentions raised by the learned counsel for the petitioner, it is necessary to look to the historical background in which the Tenth Schedule was added to the Constitution. On 8th December, 1967 the Lok Sabha passed a unanimous resolution constituting a Committee to consider in all its aspects the problem of legislators changing their allegiance from one party to another and their frequent crossing of the Floor and make recommendations in this regard. This Committee known as "Committee on Defections" in its report dated 7th January, 1969 highlighted the alarming rise in change of party allegiance by legislators. Compared to roughly 545 cases in the entire period between the First and Fourth General Elections, at least 438 defections occurred in a short period between March 1967 and February, 1968. Among independents, 157 out of a total of 376

elected joined various parties in this period. Out of 210 defecting legislators of the States of Bihar, Haryana, M.P., Punjab, Rajasthan, U.P. and West Bengal, 116 were included in the Council of Ministers which they helped to bring into being by defections. The Committee noted multiple acts of defections by the same person or set of persons and the belief held by the people and expressed in the press that corruption and bribery were behind some of these defections. (See Kihoto Hollohan v. Zachillhu & Ors. 1992 (Supp) 2 SCC 651 paras 5 and 6). 5. Keeping in view the recommendations of the Committee on Defections several Bills were introduced for amending the Constitution, but they lapsed. Finally, a Bill which was enacted into Constitution (Fifty- second Amendment) Act, 1985 was passed by which Tenth Schedule was added with effect from 1.3.1985. The Statement of Objects and Reasons appended to the Bill read as under : 1. The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance. 2. The Bill seeks to amend the Constitution to provide that an elected member of Parliament or a State Legislature, who has been elected as a candidate set up by a political party and a nominated member of Parliament or a State Legislature who is a member of a political party at the time he takes his seat or who becomes a member of a political party within six months after he takes his seat would be disqualified on the ground of defection if he voluntarily relinquishes his membership of such political party or votes or abstains from voting in such House contrary to any direction of such party or is expelled from such party. An independent member of Parliament or a State Legislature shall also be disqualified if he joins any political party after his election. A nominated member of Parliament or a State Legislature who is not a member of a political party at the time of his nomination and who has not become a member of any political party before the expiry of six months from the date on which he takes his seat shall be disqualified if he joins any political party after the expiry of the said period of six months. The Bill also makes suitable provisions with respect to splits in, and mergers of, political parties. A special provision has been included in the Bill to enable a person who has been elected as the presiding officer of a House to sever his connections with his political party. The question as to whether a member of a House of Parliament or State Legislature has become subject to the proposed disqualification will be determined by the presiding officer of the House; where the question is with reference to the presiding officer himself, it will be decided by a member of the House elected by the House in that behalf. 3. The Bill seeks to achieve the above objects. The provisions of the Tenth Schedule to the Constitution which are relevant for the decision of the present case are being reproduced below : 1. Interpretation In this Schedule, unless the context otherwise requires, (a) 'House' means either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State; (b) 'legislative party', in relation to a member of a House belonging to any political party in accordance with the provisions of paragraph 2, paragraph 4, means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions; (c) 'original political party', in relation to a member of a House, means the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2; (d) 'paragraph' means a paragraph of this Schedule.

2.

Disqualification on ground of defection (1) Subject to the provisions of paragraphs 4 and 5, a

member of a House belonging to any political party shall be disqualified for being a member of the House (a) (b) if he has voluntarily given up his membership of such political party; or if he votes or abstains from voting in such House contrary to any direction issued by the political

party to which he belongs or by any person or authority authorized by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. Explanation For the purposes of this sub-paragraph, - (a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member; (b) (Omitted as not relevant) (2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election. (3) . (Omitted as not relevant) (4) . (Omitted as not relevant) 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 of courts. Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule. 6. The underlying object and the purpose which the Tenth Schedule seeks to achieve were explained as under in Kihoto Hollohan (supra) and it will be useful to keep them in mind while interpreting its provisions : "Para 13 : These provisions in the Tenth Schedule give recognition to the role of political parties in the political process. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of Paragraph 2(1)(a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his membership of the legislature and go back before the electorate. The same yardstick is applied to a person who is elected as an Independent candidate and wishes to join a political party after the election." 7. Paragraph 2 of the Tenth Schedule lays down the contingencies under which a member of the House belonging to any political party shall be disqualified for being a member of the House and they are enumerated in sub-paras (1), (2) and (3). Sub-para (2) deals with a situation where a member of the House elected as an independent candidate joins any political party after such election and sub-

para (3) deals with a situation where a nominated member of the House joins any political party after the expiry of six months from the date on which he takes a seat. Sub-para (1) deals with a situation where a member of a House belonging to any political party voluntarily gives up his membership of such political party. It also deals with a situation where he votes or abstains from voting in the House, contrary to any direction issued by the political party to which he belongs, without obtaining prior permission of such political party and such voting or abstention has not been condoned by such political party within fifteen days from the said voting or abstention. The scrutiny of the provisions of sub- para (2) would show that a member of a House belonging to any political party becomes disqualified for being a member of the House if he does some positive act which may be either voluntarily giving up his membership of the political party to which he belongs or voting or abstention from voting contrary to any direction issued by the political party to which he belongs and in the case of an independent or nominated member on his joining a political party. On the plain language of paragraph 2, the disqualification comes into force or becomes effective on the happening of the event. Paragraph 4 is in the nature of an exception to paragraph 2 and provides for certain contingencies when the rule of disqualification will not apply in the case of merger of political parties. Paragraph 6 says that where any question arises as to whether a member of the House has become subject to disqualification under the Schedule, the same shall be referred for the decision of the Chairman or, as the case may be, the Speaker of the House and his decision shall be final. Therefore, the final authority to take a decision on the question of disqualification of a member of the House vests with the Chairman or the Speaker of the House. It is to be noted that the Tenth Schedule does not confer any discretion on the Chairman or Speaker of the House. Their role is only in the domain of ascertaining the relevant facts. Once the facts gathered or placed show that a member of the House has done any such act which comes within the purview of sub- paragrah (1), (2) or (3) of Paragraph 2 of the Tenth Schedule, the disqualification will apply and the Chairman or the Speaker of the House will have to make a decision to that effect. 8. Paragraph 6 of Tenth Schedule attaches finality to the decision of the Chairman or the Speaker of the House on a question as to whether a member of a House has become subject to disqualification under the Schedule. Paragraph 7 excludes the jurisdiction of the Court in respect of any matter connected with disqualification of a member of a House under the Schedule. as it says that notwithstanding anything in the Constitution, no Court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of House under this Schedule. This provision being in the Constitution itself, unlike a statutory provision, it effects the power of judicial review of the High Court and Supreme Court under Articles 226, 227 and 136 of the Constitution. Further, in view of the provision contained in sub-paragraph (2) of paragraph 6 the proceedings in relation to disqualification of a member of the House shall be deemed to be proceedings in Parliament within the meaning of Article 122 or in the Legislature of a State within the meaning of Article 212, as the case may be. These are identical provisions which provide that validity of any proceedings in Parliament or Legislature shall not be called in question on the ground of any alleged irregularity in procedure. The vires of Tenth Schedule was challenged on several grounds including the ground that the power of judicial review being part of the basic structure of the Constitution, cannot be taken away by a constitutional amendment. The issue was considered by a Constitution Bench in Kihoto Hollohan v. Zachillhu & Ors. 1992 (Supp) 2 SCC 651, where Venkatachaliah, J. speaking for the majority held as under in para 111 of the reports : "In the result, we hold on contentions (E) and (F) : That the Tenth Schedule does not, in providing for an additional ground, for disqualification and for adjudication of disputed disqualifications, seek to create a non-justiciable constitutional area. The power to resolve such disputes vested in the Speaker or Chairman is a judicial power.

That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairman is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution insofar as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned. That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Articles 112(1) and 212(1) of the Constitution as understood and explained in Keshav Singh case (AIR 1965 SC 745) to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words 'be deemed to be proceedings in Parliament' or 'proceedings in the legislature of a State' confines the scope of the fiction accordingly." This authoritative pronouncement clearly lays down that the decision of the Chairman or the Speaker of the House can be challenged on very limited grounds, namely, violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity and further a mere irregularity in procedure can have no bearing on the decision. 9. The question as to when a member of a House belonging to a political party can be said to have given up his membership of such political party has been considered in two later decisions of this Court. In Ravi S. Naik v. Union of India 1994 (Supp.) 2 SCC 641 two M.L.A.s, Bandekar and Chopdekar, had been elected on the ticket of MGP party, but they accompanied the leader of Congress (I) Legislative Party when he met the Governor to show that he had the support of 20 MLAs. On this conduct alone, the Speaker held that they had given up membership of the MGP party and disqualified them for being a member of the House. The decision of the Speaker under which he held that the two MLAs shall be disqualified for being a member of the House under paragraph 2(1)(a) of the Schedule was upheld by this Court. The scope and amplitude of paragraph 2(1)(a) was explained as under in para 11 of the reports : "11. The said paragraph provides for disqualification of a member of a House belonging to a political party "if he has voluntarily given up his membership of such political party". The words "voluntarily given up his membership" are not synonymous with "resignation" and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs". 10. In G. Viswanathan & Ors. v. Hon'ble Speaker Tamil Nadu Legislative Assembly & Ors. 1996 (2) SCC 353 the appellants had been elected as members of the Legislative Assembly in 1991 as candidates of AIDMK party but they were expelled from the said party on 8th January, 1994. The Speaker declared them as unattached members of the Assembly on 16th March, 1994. Sometime thereafter, an MLA informed the Speaker that the appellants had joined MDMK party and, therefore, they should be disqualified from membership of the Assembly. After calling for their explanation the Speaker held that they had incurred the disqualification under paragraph 2(1)(a) of the Tenth Schedule and had ceased to be members of the Assembly. The main contention raised on behalf of the appellants was that paragraph 2(1)(a) of the Tenth Schedule comes into play only to disqualify a member who voluntarily gives up his membership of that political party that had set him up as a candidate, and not when he is expelled from the party and declared "unattached" i.e. not belonging to any political party. It was further contended that para 2(a) will apply only when a member himself of his own volition gives up his membership of the party. Any member thrown out will cease to be a member of the party that had set him up as a candidate and if he joins another party thereafter, it will

not be a case of "voluntary giving up his membership of the political party" that had set him up as a candidate for the election. It was held that if the contention urged on behalf of the appellants is accepted, it will defeat the very purpose for which the Tenth Schedule came to be introduced and would fail to suppress the mischief, namely, breach of faith of the electorate. The principle on which such a view was taken was explained as under in para 11 of the reports : "11. It appears that since the explanation to para 2(1) of the Tenth Schedule provides that an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member, such person so set up as a candidate and elected as a member, shall continue to belong to that party. Even if such a member is thrown out or expelled from the party, for the purposes of the Tenth Schedule he will not cease to be a member of the political party that had set him up as a candidate for the election. He will continue to belong to that political party even if he is treated as 'unattached'. The further question is when does a person "voluntarily give up" his membership of such political party, as provided in para 2(1)(a)? The act of voluntarily giving up the membership of the political party may be either express or implied. When a person who has been thrown out or expelled from the party which set him up as a candidate and got elected, joins another (new) party, it will certainly amount to his voluntarily giving up the membership of the political party which had set him up as a candidate for election as such member." 11. In the present case, the Chairman of the Legislative Council has held that the petitioner had been elected to the Legislative Council on the ticket of the Indian National Congress but he contested the parliamentary election as an independent candidate. On these facts a conclusion has been drawn that he has given up his membership of Indian National Congress. This being a matter of record, the petitioner could not possibly dispute them, and that is why he has admitted these facts in the writ petition as well. In such a situation there can be no escape from the conclusion that the petitioner has incurred the disqualification under paragraph 2(1)(a) of the Schedule and the decision of the Chairman is perfectly correct. 12. Paragraph 8 gives the rule making powers and it provides that the Chairman or the Speaker of a House may make rules for giving effect to the provisions of the Tenth Schedule. Clause (d) of subpara (1) of this rule provides that the Rule may provide the procedure for deciding any question referred to in sub-para (1) of paragraph 6 including the procedure for any inquiry which may be made for the purpose of deciding such question. In exercise of the power conferred by paragraph 8 of the Tenth Schedule, the Chairman, Bihar Legislative Council has made the Bihar Legislative Council Members (Disqualification on ground of Defection) Rules, 1994 (hereinafter referred to as "the Rules"). Rule 3 of the Rules provides that the leader of each legislature party shall furnish to the Chairman a statement in writing containing the names of members of such political party. Sub- rules (1) and (6) of Rule 6 and Sub-rules (1) and (2) of Rule 7 read as under: 6. REFERENCES TO BE BY PETITIONS. (1) No reference of any question as to whether a member has become subject to disqualification under the Tenth Schedule shall be made except by a petition in relation to such member made in accordance with the provisions of this rule. (2) ................ . (6) Every petition shall be signed by the petitioner and verified in the manner laid down in the Code

of Civil Procedure, 1908 (5 of 1908), for the verification of pleadings. 7. PROCEDURE (1) On receipt of a petition under rule 6, the Chairman shall consider whether the petition complies with the requirements of that rule.

(2)

If the petition does not comply with the requirements of rule 6, the Chairman shall dismiss the

petition and intimate the petitioner accordingly. 13. It may be noted that under Paragraph 8, the Chairman or the Speaker of a House is empowered to make rules for giving effect to the provisions of the Tenth Schedule. The rules being delegated legislation are subject to certain fundamental factors. Underlying the concept of delegated legislation is the basic principle that the legislature delegates because it cannot directly exert its will in every detail. All it can in practice do is to lay down the outline. This means that the intention of the legislature, as indicated in the outline (that is the enabling Act), must be the prime guide to the meaning of delegated legislation and the extent of the power to make it. The true extent of the power governs the legal meaning of the delegated legislation. The delegate is not intended to travel wider than the object of the legislature. The delegate's function is to serve and promote that object, while at all times remaining true to it. That is the rule of primary intention. Power delegated by an enactment does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provision. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary its ends.(see Section 59 in chapter Delegated Legislation in Francis Bennion's Statutory Interpretation 3rd Edn.). The aforesaid principle will apply with greater rigour where rules have been framed in exercise of power conferred by a constitutional provision. No rules can be framed which have the effect of either enlarging or restricting the content and amplitude of the relevant constitutional provisions. Similarly, the rules should be interpreted consistent with the aforesaid principle. 14. Shri Mishra has submitted that as provided in sub-rule (6) of Rule 6 of the Rules, the petition filed by Shri Salman Rageev had to be signed and verified in the manner laid down in the Code of Civil Procedure (for short 'CPC') for verification of pleadings and, therefore, in terms of sub-rule (4) of Order VI Rule 15 CPC an affidavit in support of the petition had to the filed. Since the requisite affidavit had not been filed, the requirement of the Rule had not been complied with, and the petition was liable to be dismissed in view of sub-rule (2) of Rule 7 of the Rules. The Chairman of the House had, therefore, no authority or jurisdiction to initiate any proceedings or to hold that the petitioner had become disqualified for being a member of the House. The question which requires consideration is whether the provisions of Rules 6 and 7 are so mandatory in nature that even a slight infraction of the Rules would render the entire proceedings initiated by the Chairman invalid, or without jurisdiction. 15. It may be noticed that the nature and degree of inquiry required to be conducted for various contingencies contemplated by paragraph 2 of Tenth Schedule may be different. So far as clause (a) of paragraph 2 (1) is concerned, the inquiry would be a limited one, namely as to whether a member of the House belonging to any political party has voluntarily given up his membership of such political party. The inquiry required for the purpose of clause (b) of paragraph 2(1) may, at times, be more elaborate. For attracting clause (b) it is necessary that the member of the House (i) either votes or abstains from voting (ii) contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf; (iii) without obtaining the prior permission of such political party, person or authority; and (iv) such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. Therefore, for the purpose of clause (b), inquiry into several factual aspects has to be conducted. It may be noticed that clause (b) does not say that the prior permission has to be in writing and, therefore, it can be oral as well. Similarly, the manner in which condonation has to be expressed has not been indicated. Therefore, for holding that a member of a House has incurred a disqualification under Clause (b) of paragraph 2(1) findings on several aspects will necessarily have to

be recorded. Similarly, for application of paragraph 4, inquiry has to be made whether the original political party merged with another political party, whether the member of the House has become member of such other political party or, as the case may be, of a new political party formed by such merger or whether he has not accepted the merger and opted to function as a separate group. 16. Sub-rule (1) of Rule 6 says that no reference of any question as to whether a member has become subject to disqualification under the Tenth Schedule shall be made except by a petition in relation to such member made in accordance with the provisions of the said Rule and sub-rule (6) of the same Rule provides that every petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. The heading of Rule 7 is 'PROCEDURE". Sub- rule (1) of this Rule says that on receipt of petition under Rule 6, the Chairman shall consider whether the petition complies with the requirement of the said Rule and sub-rule (2) says that if the petition does not comply with the requirement of Rule 6, the Chairman shall dismiss the petition. These rules have been framed by the Chairman in exercise of power conferred by paragraph 8 of Tenth Schedule. The purpose and object of the Rules is to facilitate the job of the Chairman in discharging his duties and responsibilities conferred upon him by paragraph 6, namely, for resolving any dispute as to whether a member of the House has become subject to disqualification under the Tenth Schedule. The Rule being in the domain of procedure, are intended to facilitate the holding of inquiry and not to frustrate or obstruct the same by introduction of innumerable technicalities. Being subordinate legislation, the Rules cannot make any provision which may have the effect of curtailing the content and scope of the substantive provision, namely, the Tenth Schedule. There is no provision in the Tenth Schedule to the effect that until a petition which is signed and verified in the manner laid down in the CPC for verification of pleadings is made to the Chairman or the Speaker of the House, he will not get the jurisdiction to give a decision as to whether a member of the House has become subject to disqualification under the Schedule. Paragraph 6 of the Schedule does not contemplate moving of a formal petition by any person for assumption of jurisdiction by the Chairman or the Speaker of the House. The purpose of Rules 6 and 7 is only this much that the necessary facts on account of which a member of the House becomes disqualified for being a member of the House under paragraph 2, may be brought to the notice of the Chairman. There is no lis between the person moving the petition and the member of the House who is alleged to have incurred a disqualification. It is not an adversarial kind of litigation where he may be required to lead evidence. Even if he withdraws the petition it will make no difference as the duty is cast upon the Chairman or the Speaker to carry out the mandate of the constitutional provision, viz. the Tenth Schedule. The object of Rule 6 which requires that every petition shall be signed by the petitioner and verified in the manner laid down in the CPC for the verification of pleadings, is that frivolous petitions making false allegations may not be filed in order to cause harassment. It is not possible to give strict interpretation to Rules 6 and 7 otherwise the very object of the Constitution (Fifty-second Amendment) Act by which Tenth Schedule was added would be defeated. A defaulting legislator, who has otherwise incurred the disqualification under paragraph 2, would be able to get away by taking the advantage of even a slight or insignificant error in the petition and thereby asking the Chairman to dismiss the petition under sub-rule (2) of Rule 7. The validity of the Rules can be sustained only if they are held to be directory in nature as otherwise, on strict interpretation, they would be rendered ultra vires. 17. The petition filed by Shri Salman Rageev was signed and verified in the following manner : "All the facts stated in this petition are true and correct to my knowledge and belief and no part of it is false. Sd/- (Salman Rageev) M.L.C. 10.06.2004"

18.

There cannot be any dispute that sub-rules (1), (2) and (3) of Order VI Rule 15 CPC were

complied with. Learned counsel for the petitioner has, however, laid great emphasis on the fact that Shri Salman Rageev had not filed any affidavit in support of his petition and consequently the provisions of sub-rule (4) of Order VI Rule 15 CPC which provides that the person verifying the pleadings shall also furnish an affidavit in support of his pleadings were not complied with. For the reasons stated earlier, we are of the opinion that the provisions of Rules 6 and 7 are directory in nature and on account of non-filing of an affidavit as required by sub-rule (4) of Order VI Rule 15 CPC, the petition would not be rendered invalid nor the assumption of jurisdiction by the Chairman on its basis would be adversely effected or rendered bad in any manner. A similar contention was raised before a Bench presided by Venkatachaliah, C.J. in Ravi S. Naik v. Union of India 1994 (Supp.) 2 SCC 641, but was repelled. The relevant portion of para 18 of the reports is being reproduced below : "18. The Disqualification Rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the power conferred on him under sub- paragraph (1) of paragraph 6 of the Tenth Schedule to the Constitution. The Disqualification Rules are, therefore, procedural in nature and any violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny in view of sub-paragraph (2) of paragraph 6 as construed by this Court in Kihoto Hollohan case 1992 (Supp) 2 SCC 651. Moreover, the field of judicial review in respect of the orders passed by the Speaker under sub-paragraph (1) of paragraph 6 as construed by this Court in Kihoto Hollohan case is confined to breaches of the constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity. We are unable to uphold the contention of Shri Sen that the violation of the Disqualification Rules amounts to violation of constitutional mandates. By doing so we would be elevating the rules to the status of the provisions of the Constitution which is impermissible. Since the Disqualification Rules have been framed by the Speaker in exercise of the power conferred under paragraph 8 of the Tenth Schedule they have a status subordinate to the Constitution and cannot be equated with the provisions of the Constitution. They cannot, therefore, be regarded as constitutional mandates and any violation of the Disqualification Rules does not afford a ground for judicial review of the order of the Speaker in view of the finality clause contained in sub-paragraph (1) of paragraph 6 of the Tenth Schedule as construed by this Court in Kihoto Hollohan case." 19. Shri Mishra has next submitted that the Chairman of the Bihar Legislative Council did not afford an opportunity of personal hearing to the petitioner and he also relied upon certain material, copy of which was not furnished to the petitioner and consequently the rules of natural justice have been violated. We do not find any substance in the contention raised. Initially, the Secretary of the Bihar Legislative Council sent a letter dated 19th May, 2004 to the petitioner stating that the petitioner had contested the election for Bihar Legislative Council as a candidate of Indian National Congress and that information had been received that he had contested the Parliamentary Election, 2004 as an independent candidate. Attention of the petitioner was invited to Article 191 (2) and Tenth Schedule to the Constitution of India and he was asked to submit his clarification within seven days. The petitioner gave a reply to this letter on 25th May, 2004 wherein he requested to supply him a photocopy of the information received by the Secretariat of Bihar Legislative Council and prayed for 15 days' time to explain his position after obtaining advice from legal experts. Thereafter, Shri Salman Rageev gave a petition to the Chairman on 10th June, 2004, details of which have already been given earlier. In pursuance of this petition, the Secretary of the Bihar Legislative Council sent a letter dated 12th June, 2004 to the petitioner stating the relevant facts and asking him to submit his written reply to the Chairman of the Council within one week. The copy of the petition submitted by Shri Salman Rageev was enclosed. The petitioner gave a reply to this petition on 18th June, 2004, wherein he only raised objection about the maintainability of the petition alleging non-compliance of sub-rule (6) of Rule 6 of the Rules and prayed for its dismissal under sub-rule (2) of Rule 7 of the Rules. He also prayed for opportunity of personal hearing on the aforesaid points. He sent another letter to the Secretary of the

Legislative Council on 19th June, 2004, wherein he reiterated the same grounds. A communication was then sent by the Secretary on 19th June, 2004 informing the petitioner that he should appear in the office of the Chairman at 1.30 p.m. on 22nd June, 2004 for a personal hearing. The petitioner then addressed a letter to the Secretary on 22nd June, 2004, wherein he again pressed for rejection of the petition under sub- rule (2) of Rule 7 of the Rules and also sought 15 days' time in order to obtain advice from legal experts. A reply was then sent by the Secretary on 22nd June, 2004 informing him that the Chairman had fixed 1.30 p.m. on 25th June, 2004 for personal hearing and he should appear in his office at the said time. On 25th June, 2004, the petitioner sent a letter to the Secretary that he had fallen sick and prayed for 10 days' further time. The facts stated above would show that the Chairman of the Bihar Legislative Council had afforded ample opportunity of personal hearing to the petitioner but he himself did not avail of it. Regarding the complaint of non-supply of the copy of the letter sent by Prof. Arun Kumar, leader of Indian National Congress in Bihar Legislative Council, whereby he had informed that the petitioner Shri Mahachandra Prasad Singh had ceased to be a member of Indian National Congress for violating the party discipline is concerned, the only relevant fact stated therein is that the petitioner had been elected as a member of the Bihar Legislative Council on a Congress ticket but he had contested the parliamentary election as an independent candidate. These facts have never been disputed by the petitioner in his replies, which he submitted before the Chairman of the Legislative Council and have also been admitted in paragraphs 5 and 7 in the present writ petition. Therefore, the non-supply of copy of the letter of the leader of the Congress Legislative Party has no bearing at all as no prejudice can be said to have been caused to the petitioner and consequently in the facts of the present case, no principle of natural justice can be said to have been violated. 20. The third submission of Shri Mishra has hardly any substance. In view of explanation (a) appended to sub-paragraph (1) of paragraph 2 of the Tenth Schedule, the petitioner shall be deemed to belong to Indian National Congress Party by which he was set up as a candidate for contesting the election for member of Legislative Council in the year 1998. By contesting the parliamentary election as an independent candidate, he voluntarily gave up the membership of the Congress Party. In G. Viswanathan & Ors. v. Hon'ble Speaker Tamil Nadu Legislative Assembly & Ors. (supra), the Bench quoted with approval the observations made in Ravi S. Naik v. Union of India (supra) in para 11 of the reports that even in the absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which be belongs. On the facts of the present case, it cannot be said that the finding arrived at by the Chairman of the Legislative Council that the petitioner gave up the membership of the Indian National Congress Party to which he belonged is one which could not reasonably and possibly have been arrived at. 21. For the reasons discussed above, there is no merit in the writ petition and the same is hereby dismissed with costs. CIVIL WRIT PETITION NO.370 OF 2004 Shiva Nandan Prasad Singh .. Petitioner -vsHon. Chairman, Bihar Legislative Council & Ors. ... Respondents 1. The petitioner was elected as member of Bihar Legislative Council as a candidate of Indian National Congress Party in 1998. He filed his nomination papers for contesting the parliamentary election held in May, 2004 as a candidate of Samajwadi party. The Secretary of the Legislative Council sent a letter dated 19th May, 2004 asking the petitioner to clarify his position. On 12th June, 2004, another letter was sent to him asking him to submit his explanation on the basis of a petition filed by Shri Salman Rageev on 10th June, 2004. The letter was accompanied by the copy of the petition. The petitioner gave a reply on 18th June, 2004 raising objection regarding non-compliance of Rules 6 and 7(2) of the Rules. The Chairman fixed 22nd June, 2004 for personal hearing, on which date the

petitioner appeared and made request for some more time, on which 25th June, 2004 was fixed. Thereafter, the Chairman passed the impugned order dated 26th June, 2004 holding that the petitioner is disqualified for being a member of the House under paragraph 2(1)(a) of the Tenth Schedule and Article 191(2) of the Constitution and the seat held by him in the Council had become vacant. 2. No new point has been urged by Shri P.S. Mishra in the present case. It is admitted in paras 4 and 6 of the writ petition that the petitioner had been elected as member of the Legislative Council in the year 1998 as a candidate of the Indian National Congress party and that he filed his nomination papers for contesting the parliamentary election held in May 2004 as a candidate of Samajwadi Party. This factual position was not disputed by the petitioner in the replies given by him to the Chairman of the House. In such circumstances, there cannot be even a slightest doubt that the petitioner has voluntarily given up his membership of the Indian National Congress party. No exception can, therefore, be taken to the decision taken by the Chairman of the House that the petitioner has incurred the disqualification for being a member of the House under paragraph 2(1)(a) of the Tenth Schedule and Article 191(2) of the Constitution and the seat held by him had fallen vacant. 3. The writ petition lacks merit and is dismissed with costs.

Critical Appraisal- Balchandra L. Jarkiholi And Ors. V. B.S. Yeddyurappa And Ors. Our Indian Bureaucratic and Legislative system is running through our politicians,politicians comes from the word Politics. The word politics comes from the Greek word Politika which means of, for, or relating to citizens, but our Indian Politics according to a layman is a bog where a person once enters never comes out. Politicians make promises but never fulfill those promises; they work on filling their pockets and making life of people miserable. Earlier after the Independence, it was very easy for a legislative elected member to hop around from one party to another to fulfill their ambitions, but this led to many Governments toppling around, keeping in mind all this our legislatures made an amendment in the year 1985 which was our 52nd Amendment Act and passed a law called Anti-defection law which added a new schedule to our Constitution, i.e., X Schedule. Anti-defection law, its main intent is to combat the evil of political defections. This law was passed soon after Lt. Shri. Rajiv Gandhi became the Prime Minister of the country with a massive mandate. This law would not have been passed if there had been no Rajiv Gandhi and his government with an unparalleled massive majority. This law was passed so that it curbs the political deflections but the ever increasing hunger of our legislatures and with our excellent legal fraternity it was not a difficult task to find some loopholes in this law and they used it to their interest. Schedule X of our Constitution provides for Anti-defection law, it is as follows:1. Interpretation.In this Schedule, unless the context otherwise requires, (a) " House" means either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State; (b) "Legislature party", in relation to a member of a House belonging to any political party in accordance with the provisions of paragraph 2 or paragraph 4, means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions; (c) "original political party", in relation to a member of a House, means the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2; (d) "paragraph" means a paragraph of this Schedule. 2. Disqualification on ground of defection.(1) Subject to the provisions of [Paragraphs 4 and 5], a member of a House belonging to any political party shall be disqualified for being a member of the House (a) if he has voluntarily given up his membership of such political party ; or (b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. Explanation.for the purposes of this sub-paragraph, (a) An elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member; (b) a nominated member of a House shall, (i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party;

(ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188. (2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election (3) A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after Complying with the requirements of article 99 or, as the case may be, article 188. (4) Notwithstanding anything contained in the foregoing provisions of this paragraph, a person who, on the commencement of the Constitution (Fifty-second Amendment) Act, 1985, is a member of a House (whether elected or nominated as such) shall, (i) Where he was a member of political party immediately before such commencement, be deemed, for the purposes of sub-paragraph (1) of this paragraph, to have been elected as a member of such House as a candidate set up by such political party; (ii) in any other case, be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of sub-paragraph (2) of this paragraph or, as the case may be, be deemed to be a nominated member of the House for the purposes of sub-paragraph (3) of this paragraph. ***** 4. Disqualification on ground of defection not to apply in case of merger.(1) A member of a House shall not be disqualified under sub-paragraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party (a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or (b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph. (2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger. 5. Exemption,Notwithstanding anything contained in this 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 Council of a State or the Speaker or the Deputy Speaker of the Legislative Assembly of a State, shall not be disqualified under this Schedule, (a) 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; or

(b) if he, having given up by reason of his election to such office his membership of the political party to which he belonged immediately before such election, rejoins such political party after he ceases to hold such office. 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 of courts.notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule. 8. Rules.(1) Subject to the provisions of sub-paragraph (2) of this paragraph, the Chairman or the Speaker of a House may make rules for giving effect to the provisions of this Schedule, and in particular, and without prejudice to the generality of the foregoing, such rules may provide for (a) the maintenance of registers or other records as to the political parties, if any, to which different members of the House belong; (b) the report which the leader of a legislature party in relation to a member of a House shall furnish with regard to any condonation of the nature referred to in clause (b) of sub-paragraph (1) of paragraph 2 in respect of such member, the time within which and the authority to whom such report shall be furnished; (c) the reports which a political party shall furnish with regard to admission to such political party of any members of the House and the officer of the House to whom such report shall be furnished; and (d) the procedure for deciding any question referred to in sub-paragraph (1) of paragraph 6 including the procedure for any inquiry which may be made for the purpose of deciding such question . (2) The rules made by the Chairman or the Speaker of a House under sub-paragraph (1) of this paragraph shall be laid as soon as may be after they are made before the House for a total period of thirty days which may be comprised in one session or in two or more successive sessions and shall take effect upon the expiry of the said period of thirty days unless they are sooner approved with or without modifications or disapproved by the House and where they are so approved, they shall take effect on such approval in the form in which they were laid or in such modified form, as the case may be, and where they are so disapproved, they shall be of no effect. (3) The Chairman or the Speaker of a House may, without prejudice to the provisions of Article 105 or, as the case may be, article 194, and to any other power which he may have under this Constitution direct that any willful contravention by any person of the rules made under this paragraph may be dealt with in the same manner as a breach of privilege of the House. 2. Balchandra L. Jarkiholi And Ors. V. B.S. Yeddyurappa And Ors. :

These Civil Appeals were filed in Honble Supreme Court against the judgment passed by Karnataka High Court on 15.11.2010 in at Bangalore in Writ Petition Nos. 32660-32670 of 2010 and is being decided by a bench of JUSTICE ALTAMAS KABIR and CYRIAC JOSEPH on 13th May, 2011. The present Appeals are related to the issue relating to the Constitutionality of X Schedule of the Indian Constitution which provides for the provisions relating to the Anti-Defection Law in India. 3. Brief Facts Of The Case : On 6th October,2010,13 members of the Karnataka Legislative Assembly belonging to the Bharatiya Janata Party, hereinafter referred to as the "MLAs", wrote identical letters to the Governor of the State indicating that they had been elected as MLAs on Bharatiya Janata Party tickets, but had become disillusioned with the functioning of the Government headed by Shri B.S. Yeddyurappa and were convinced that a situation had arisen in which the Government of the State could not be carried on in accordance with the provisions of the Constitution and that Shri Yeddyurappa had forfeited the confidence of the people as the Chief Minister of the State. Accordingly, in the interest of the State and the people of Karnataka, the legislators expressed their lack of confidence in the Government headed by Shri B.S. Yeddyurappa and withdrew their support to the said Government. The contents of one of the aforesaid letters dated 6th October, 2010, are reproduced herein below: His Excellency, I was elected as an MLA on BJP ticket. I being an MLA of the BJP got disillusioned with the functioning of the Government headed by Shri B.S. Yeddyurappa. There have been widepread corruption, nepotism, favoritism, abuse of power, misusing of government machinery in the functioning of the government headed by Chief Minister Shri B.S. Yeddyurappa and a situation has arisen that the governance of the State cannot be carried on in accordance with the provisions of the Constitution and Shri Yeddyurappa as Chief Minister has forfeited the confidence of the people. In the interest of the State and the people of Karnataka I hereby express my lack of confidence in the government headed by Shri B.S. Yeddyurappa and as such I withdraw my support to the Government headed by Shri B.S. Yeddyurappa the Chief Minister. I request you to intervene and institute the constitutional process as constitutional head of the State. With regards, I remain Yours faithfully, Shri H.R. Bharadwaj, His Excellency Governor of Karnataka, Raj Bhavan, Bangalore. Five independent MLAs also expressed lack of confidence and withdrew support to the Government led by Shri B.S. Yeddyurappa. On the basis of the aforesaid letters addressed to him, the Governor addressed a letter to the Chief Minister, Shri B.S. Yeddyurappa, on the same day (6.10.2010) informing him that letters had been received from 13 BJP MLAs and 5 independent MLAs, withdrawing their support to the Government. A doubt having arisen about the majority support enjoyed by the Government in the Legislative Assembly, the Governor requested Shri Yeddyurappa to prove that he still continued to command the support of the majority of the Members of the House by introducing and getting passed a suitable motion expressing confidence in his Government in the Legislative Assembly on or before 12th October, 2010 by 5 p.m. In his letter he indicated that the Speaker had also been requested accordingly. On the very same day, Shri B.S. Yeddyurappa, as the leader of the BJP Legislature Party in the Karnataka Legislative Assembly, filed an application before the Speaker under Rule 6 of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986, being Disqualification Application No. 1 of 2010, praying to declare that all the said thirteen MLAs elected on BJP tickets had incurred disqualification in view of the Tenth Schedule to the Constitution.

Show-Cause notices were thereafter issued to all the 13 MLAs on 7th October, 2010, informing them of the Disqualification Application filed by Shri Yeddyurappa stating that having been elected to the Assembly as Members of the BJP, they had unilaterally submitted a letter on 6th October, 2010 to the Governor against his Government withdrawing the support given to the Government under his leadership. The Appellants were informed that their act was in violation of paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India and it disqualified them from continuing as Members of the Legislature. Time was given to the Appellants till 5 p.m. on 10th October, 2010, to submit their objections, if any, to the application. They were also directed to appear in person and submit their objections orally or in writing to the Speaker, failing which it would be presumed that they had no explanation to offer and further action would thereafter be taken ex-parte, in accordance with law. That replies were submitted by the Appellants to the Speaker on 9th October, 2010 indicating that having come to learn from the media that a Show-Cause notice had been issued as per the orders of the Speaker and had been pasted on the doors of the MLA quarters in the MLA hostels at Bangalore, which were locked and used by the legislators only when the House was in session, they had the contents of the notices read out to them on the basis whereof interim replies to the Show-Cause notices were being submitted. In the interim replies filed by the Appellants on 9th October, 2010, it was categorically indicated that the interim reply was being submitted, without prejudice and by way of abundant caution, as none of the documents seeking disqualification had either been pasted on the doors of the MLA quarters or forwarded to the Appellants along with the Show-Cause notice. Similarly, a copy of the Governor's letter, which was made an enclosure to the Show-Cause notice, was also not pasted on the doors of the residential quarters of the Appellants or otherwise served on them personally. A categorical request was made to the Speaker to supply the said documents and the Appellants reserved their right to give exhaustive replies after going through the aforesaid enclosures to the Show-Cause notice as and when supplied. When the hearing to this particular issue was held the speaker held that the MLAs have voluntarily given up their membership and thus liable to be disqualified from the Membership of State Assembly via provisions mentioned in Paragraph 2(1)(a) of the X Schedule of the Indian Constitution. A Writ Petition was filed by the Appellants in Karnataka High Court at Bangalore which was dismissed by Divisional Bench vide Judgment dated 15.11.2010 against which the present Civil Appeal lies. 4. Issues Involved : Six issues had arisen in the appeals and they are reproduced herein below: (i) The extent and scope of Judicial Review available against the order of the Speaker passed in exercise of powers under the Tenth Schedule to the Constitution. (ii) Whether the Karnataka Disqualification Rules framed in exercise of powers under paragraph 8 of the Tenth Schedule are directory and procedural in nature and whether judicial review is available against an alleged breach of the said Rules? (iii) Whether the Speaker's order impugned herein is mala fide? (iv) Whether Speaker's order can be said to be vitiated on account of noncompliance with the principles of natural justice? (v) The scope of paragraph 2(1)(a) of the Tenth schedule; and (vi) Whether the Speaker's inference from the conduct of the MLA's in the present case that they have given up the membership of the political party to which they belong, can be said to be 'perverse'? 5. Cases Referred : Kihota Hollohon Vs. Zachilhu And Others, Air 1993 Sc 412

 Ravi S. Naik And Sanjay Bandekar Vs. Union Of India, Air 1994 Sc 1558 Jagjit Singh V. State Of Haryana, (2006) 11 Scc 1 G. Viswanathan V. Hon'ble Speaker Tamil Nadu Legislative Assembly, Madras And Anr., (1996) 2 Scc 353 Dr. Mahachandra Prasad Singh V. Chairman, Bihar Legislative Council And Ors. (2004) 8 Scc 747 Rajendra Singh Rana And Ors. V. Swami Prasad Maurya And Ors. (2007) 4 Scc 270 S. Partap Singh V. State Of Punjab (1964) 4 Scr 733 State Of M.P. V. Ram Singh (2000) 5 Scc 88 B.R. Kapur V. State Of T.N. (2001) 7 Scc 231 Nazir Ahmad V. King Emperor 63 Indian Appeals 372 State Of U.P. V. Singhara Singh (1964) 4 Scr 485 Union Of India V. Tulsiram Patel (1985) 3 Scc 398 Mayawati V. Markandeya Chand (1998) 7 Scc 517 Sangramsinh P. Gaekwad V. Shantadevi P. Gaekwad (2005) 11 Scc 314 E.P. Royappa V. State Of Tamil Nadu (1974) 4 Scc 3 6. Judgment: It was held, Speaker did not take into consideration rule of evidence that person making an allegation has to prove same with supporting evidence. Mere fact that allegation was not denied, did not amount to same having been proved on account of silence of person against whom such allegations were made. There was nothing on record in support of said allegations Speakers action amounted to denial of principles of natural justice to Appellants. It also revealed partisan trait in Speakers approach in disposing of Disqualification Application. There was no compulsion on Speaker to decide Disqualification Application in a great hurry within time specified by Governor to Speaker to conduct Vote of Confidence in Government. Such course of action was adopted by Speaker; since the Vote of Confidence on floor of the House was slated Element of hot haste was also evident in the action of the speaker. It was further held, under Paragraph 2(1)(a) of the 10th Schedule, Speaker functions in quasi-judicial capacity, which makes order passed by him in such capacity, subject to judicial review. Paragraph 2(1)(a) of the 10th Schedule enables Speaker in quasi-judicial capacity to declare that Member of House stands disqualified for reasons mentioned in Paragraph 2(1)(a) of the 10th Schedule to the Constitution Proceedings conducted by Speaker on Disqualification. Application did not meet twin tests of natural justice and fair play. Speaker, proceeded in matter as if he was required to meet deadline set by Governor, irrespective of whether, in process, he was ignoring constitutional norms set out in 10th Schedule to Constitution and Disqualification Rules, 1986, and in contravention of concept of fair hearing Show Cause Notices were issued within time fixed by Governor for holding the Trust Vote. Court set aside impugned order of Speaker disqualifying Appellant and the Appeal filed by the appellant was allowed. 7. Ratio Decidendi : Under paragraph 2(1) (a) of the X Schedule, Speaker functions in quasi-judicial capacity, which makes order passed by him in such capacity, subject to judicial review. 8. Conclusion: Anti-defection law when it was passed, it aimed at bringing down the political defect but due to ever increasing political dishonesty and corruption this law never evolved properly and now a question have arose that whether achieving the goals of this law a reality or a myth? Politicians found loopholes in this law and used it for their own benefit. It is high time that a watchdog should be provided to our Parliament and there is a need for our constitutional pundits to revisit the issue to combat the menace of corruption and defection which has eroded the values of democracy. Social activists like Anna Hazare and now public figures like Baba Ramdev are doing their best with the help of citizens and using the method of non-violence and satyagrah which were adopted by the father of the nation Mahatma Gandhi to eradicate Britishers from the country and doing their best to make sure that our sleeping

government should wake up and start taking steps towards eradicating political corruption and only this will help in achieving the goal which was set while passing this law. This law can also work if certain recommendations mentioned above are taken into consideration and an amendment be made in this law. In the end I would like to quote that a government, for protecting business only, is about a carcass, and soon falls by its own corruption and decay, so the government has a duty to stand and deliver now and not let this law turn into a myth. ************************ # M.P. Jain, 5th Edition, 2003 Vol. 2 Indian Constitutional Law" target=_blank>Constitutional Law, Pg. 2292 # M.P. Jain, 5th Edition, 2003 Vol. 2 Indian Constitutional Law" target=_blank>Constitutional Law, Pg. 2053 # M.P. Jain, 5th Edition, 2003 Vol. 2 Indian Constitutional Law" target=_blank>Constitutional Law, Pg. 2082

Topics: 5 Topicsin this forum with details of Replies, Views, Last post. Dr. Mahachandra Prasad Singh vs Chairman, Bihar Legislative by admin

0 439

G. Viswanathan V. Hon'ble Speaker Tamil Nadu Legislative Assembly, Madras And Anr by admin

0 419

Ravi S. Naik vs Union of India by admin

1 486

Shri Kihota Hollohon vs Mr. Zachilhu And Others by admin

3 750

Balchandra L Jarkiholi & Ors. vs B.S.Yeddiyurappa & Ors - Anti-Defection Law by admin

2 660

Hung Parliament: Issues and Trends The oxford dictionary defines Hung Parliament as parliament in which no party has clear majority. In Parliamentary systems, a Hung Parliament or a minority government is one in which no one political party has an outright majority, and means the house is most commonly equally balanced. This situation is normal in many legislatures with proportional representation such as Germany or Italy, or in legislatures with strong regional parties. In majoritarian chambers with weak regional parties, it is a rarity, as in these circumstances one party will usually hold enough seats to form a majority. A Hung Parliament will force a coalition government, a minority government or dissolution of parliament. In general, a minority government tends to be less stable than a majority government, because the opposition can always bring down the government with a simple vote of no confidence. Also, it is often argued that a minority government is less accountable because the leader can dodge responsibility and shift blame to the opposition. However, a minority government tends to be less arrogant because it often requires compromise between the different parties to ensure the passage of legislation. The problem with election in the modern era of democracy is that the regional parties are giving a tough challenge to the national parties in order to form a government, if we look at from the nations point of view, with special reference to India, the ninth Lok Sabha elections held in 1989 for the first time invoked the concept of hung Parliament or minority government in the country and ever since then the following elections which have taken place have had hung Parliaments. In a hung Parliament seats are distributed amongst the national and regional parties and that no single party or for that matter a pre poll alliance is able to form the government. The condition is such that hung parliament in inevitable in next elections to come simply because all the national parties and breaking up into smaller units and forming regional parties resulting in votes are getting distributed. Hung parliament creates a political unrest in the country. Even the market prefers a stable government. Even if a coalition is formed after a hung parliament the government faces problem to make appropriate decision when it is required, the government is always in debate .The recent example of such political conflict arose regarding nuclear deal when UPA Left Alliance prevailed. So the problem has a huge dimension and it is going to be even worse in years to come, but unfortunately we dont have any statutes on this topic. Our constitution, which is the lengthiest constitution in the world but it, remains silent about hung parliament (elections are enumerated in article 324 329 of Indian constitution). The defence of the constitution makers can be that they didnt have the far sight of such political scenario at that time because at that point congress was the only party prevailing. However things have changed with time and when we can have

amendments so frequently, certainly having an amendment and inserting a clause, hereby providing a provision for hung parliament is the need of the hour. Reasons for Hung Parliament Changing colour of Regional Parties If we analyze the election results of Lok Sabha from 1989 we will see that that with time the regional parties are going stronger in the national politics, this is resulting in hung Parliaments in the India. In 1989 general elections state or regional parties had 27 seats; in 1991 it increased to 51. 1996 elections saw a steady increase in number of seats on regional parties and they got 129 seats. In 1999 elections regional parties played a crucial role they landed up getting 158 seats. In 2004 Lok Sabha elections the regional parties got 159 seats. So hereby we can see how regional parties are playing a dominating role in the national politics and as a result of which the national parties are not being able to form the majority marks, even coalition with these regional parties doesnt help at times. The year 2009 has proved all the arithmetic wrong when UPA alliance led by Indian National Congress almost reached the majority mark in the Lok Sabha on its own. Congress landed up getting 206 seats and the UPA with 262 seats fell short of 10 seats to reach the magic figure. Subsequently there has been a downward trend in number of seats won by regional parties. Low turnout in the elections Another factor which is the prime cause of hung parliament is that the election turnout percentage in the elections is very low. India has had an average turn out percentage of around 60 ever since independence in the past 15 Lok Sabha elections. If the turnout is so low and then with the regional parties growing in strength with each elections hung parliament is inevitable. International Situation Hung parliament is a common phenomenon is many countries. In countries like Canada the average tenure of the government is 1 yr and four month; most government over there doesnt last for more that 2 yrs. In between 1963 and 1966 it has as many as 3 general elections. Well in Denmark 90% of the government formed since 1945 has resulted in hung Parliament. In Italy more than half the governments that have been formed are from hung Parliament. Norway, Sweden and most of the western European countries have had the history of hung Parliament. Germany has had hung parliament is the last three general elections (i.e. 1998, 2002, 2005). Effect of Hung Parliament Political instability Hung Parliament leads to political instability in the country. The national party goes in search of regional partners to form the government. This is the point where the regional parties plays a very important role in the formation of the government, they

bargain with the national parties for ministerial post once they join the government and this process goes on. There are exchanges of dialogues in the political scenario of the country. No one is sure about the future of the nation. This is the point where the people feel they have been deceived as the political parties try to adhere to unfair practices in getting the support from the regional parties. Trade and Commerce The trade and commerce again take a bad shape after hung parliament. A proper trade and commerce planning requires proper strategic planning and in the absence of a stable government there arises lacuna in the decision process. So the trade and commerce gets badly hit by hung parliament. In 2004 when the Lok Sabha election results were declared the stock market fell by 900 points thus indicating that the market prefers power to be in safe hands. Basically the corporate and the capital market prefer a stable government who can be there in power for the full tenure. In 2009 the results clearly indicated that the UPA under the leadership of Indian National Congress would form the government so the market reacted in a positive manner. Minority Government Although after hung Parliament a coalition comes to power yet no single party has the outright majority so we can term this sort of government as a minority government. In case of a minority government there lies lacuna in decision making. Minority governments in most cases are not allowed to exercise their power properly. There are under constant conflict with the opposition parties, so a minority government is a detriment to the nation. Minority government looks at the short term benefits of the nation, well in case of a government having outright majority they cater to 5 yr perspective. Unstable ruling coalition may spend indiscriminately in order to satisfy the short term needs of its support groups. This would result in high debts to the successors. Trends Hung Parliament is inevitable in next elections to come simply because all the national parties and breaking up into smaller units and forming regional parties resulting in votes getting distributed. Even now political analysts are that India will have Hung Parliaments in the near future inspiteof the fact that UPA alliance were inches away from forming the government on its own. We have to wait and watch the outcomes of the upcoming assembly elections in various states, if the parties manage to get the majority mark on their own or under a pre-poll alliance then it will be a great boon for our country. Recommendation Compulsory Voting As I have mentioned earlier the poll turnout is very low in India, 60 out of 100 people

turn out to vote on the day of election, time has come to retrospect into the matter and make voting compulsory and anyone who doesnt vote should be penalized. Compulsory voting gives a chance to avoid hung Parliament in the next elections as more number of people voting gives a chance for majority government. Bi - party System In India we have many political parties, the Indian law states that any party having dominance in more than four states is to be called a national party. In the election machinery of our country both the national as well as the regional parties participate in the elections. Some analysts say that these are what that makes India the largest democracy in the world. But we cant afford to have hung Parliaments and governments which doesnt have majority of its own, so a probably solution to the problem can be to eliminate all regional parties and to have only 2 political parties at the centre who will contest election amongst themselves and hence forth there can be a solution to the problem of hung parliament. The alternative vote This procedure is followed in Australia, Brazil, and Portugal and so on, in this procedure the candidates are ranked in the order of preference. At the time of calculation of votes the candidate getting rank 1 is considered, in doing so if there isn`t any majority ( in case of a dispute ) then the candidates are considered based on how many people have given them rank 2, and the process moves on. This certainly is a good way of having a solution to hung Parliament. Two ballot system In the procedure two sets of election are held. In the first election the candidates getting the most number of votes (the best two) are chosen and then the nation votes amongst the best two candidates. In this procedure a solution is a must. This procedure is adopted by France where hung Parliament was a regular phenomenon earlier but things have changed after the inception of this method of voting. In India too we can have the same. My critics might argue that there will be too many expenses in having two elections in a short span of time; well my answer to them will be there has to be a choice between expenses incurred and having a democratic set up where in, the government formed has an outright majority in the house. Post election coalition should not be allowed. In India the general phenomenon is that after elections the regional parties switch their alliances in order to strive for power, the national parties gives in to the bargain of these regional parties and tries to form government. So post election coalition should not be termed as illegal. If post election coalitions are not allowed then the political parties will be responsible enough is forming a proper pre election coalition and this can yield a result to the problem of hung parliament.

Anti defection law should be stringent 10th schedule of Indian constitution deal with anti defection law. The law of the land (Indian Constitution) allows members of political parties to change their parties in case one third of the elected members of that party in any assemble decide to split from the party. In case of merger two third is the margin required for merger of political parties. The speaker is the ultimate authority in deciding cases pertaining to members splitting or merging with other political parties. Change in Law There should be a change in the law which empowers the opposition party to bring no confidence motion in the house. In India a no confidence motion can be brought by any party and once the speaker approves it voting takes place. If the ruling party fails in the trust vote then there is a fresh election. Well in countries like Germany, Spain, Italy the scenario is different. Over there no confidence motions are brought keeping a successor in hand so that incase, the ruling government fails in the trust vote the person who was appointed as successor takes the office till the tenure of the office. This procedure can avoid a fresh election. Ngo, government should launch campaign to educate voters. The NGOs can help the country in avoiding a hung parliament. They can bring a consensus amongst the people that all should vote, they can make the voters aware of their rights of adult franchise.

Cyber Torts Cyber torts are the latest and perhaps the most complicated problem in the cyber world.Cyber torts may be said to be those species, of which, genus is the conventional torts, and where either the computer is an object or subject of the conduct constituting tort. Any criminal activity that uses a computer either as an instrumentality, target or a means for perpetuating further crimes comes within the ambit of cyber tort A generalized definition of cyber tort may be unlawful acts wherein the computer is either a tool or target or both. The computer may be used as a tool in the following kinds of activity- financial crimes, sale of illegal articles, pornography, online gambling, intellectual property crime, e-mail spoofing, forgery, cyber defamation, cyber stalking. The computer may however be target for unlawful acts in the following cases- unauthorized access to computer/computer system/computer networks, theft of information contained in the electronic form, e-mail bombing, data didling, salami attacks, logic bombs, Trojan attacks, internet time thefts, web jacking, theft of computer system, physically damaging the computer system. Birth Of Internet Litigation The Internet, which began as the U.S. Defense Departments ARPANET, was designed to link computer networks to various radio and satellite networks.25 The first judicial opinion to mention the Internet was United States v. Morris.26 The defendant in Morris was a graduate student who had released an Internet worm that paralyzed thousands of university and military computers throughout the United States.27 In the same year, Robert Riggs was prosecuted for gaining unauthorized access to a Bell South computer and misappropriating proprietary information about the telephone companys 911 system. He subsequently published this confidential data in a hacker newsletter. It was not until 1994 that any plaintiff prevailed in an Internet tort case. In a controversial decision, an anthropologist was denied tenure at the University of West Australia in Rindos v. Hardwick. A rival anthropologist, Hardwick, posted a statement supporting the universitys decision and accusing Rindos of sexual deviance and of research detrimental to the aboriginal people of Australia.30 Although an Australian court assessed this first damages award in an Internet tort case, the vast majority of subsequent cyber torts have been litigated in America. During the past decade, American tort law is beginning to evolve to address online injuries such as Internet defamation, e-mail stalking, spamming, and trespassing on web sites. Distinction Between Conventional And Cyber Tort There is apparently no distinction between cyber and conventional tort. However on a deep introspection we may say that there exists a fine line of demarcation between the conventional and cyber tort, which is appreciable. The demarcation lies in the involvement of the medium in cases of cyber tort. The sine qua non for cyber tort is that there should be an involvement, at any stage, of the virtual cyber medium i,e. Cyber space. Reasons For Occurrence Of Cyber Tort: Hart in his work The Concept of Law has said human beings are vulnerable so rule of law is required to protect them. Applying this to the cyberspace we may say that computers are vulnerable so rule of law is required to protect and safeguard them against cyber tort. The reasons for the vulnerability of computers may be said to be: 1. Capacity to store data in comparatively small space- The computer has unique characteristic of storing data in a very small space. This affords to remove or derive information either through physical or virtual medium makes it much more easier. 2. Easy to access-The problem encountered in guarding a computer system from unauthorised access is that there is every possibility of breach not due to human error but due to the complex technology. By secretly implanted logic bomb, key loggers that can steal access codes, advanced voice recorders; retina imagers etc. that can fool biometric systems and bypass firewalls can be utilized to get past many a security system. 3. Complexity of systems-The computers work on operating systems and these operating systems in turn are composed of millions of codes. Human mind is fallible and it is not possible that there might not be a lapse at any stage. These lucanas can be taken advantage of and computer security systems can be penetrated into. 4. Negligence- Negligence is very closely connected with human conduct. It is therefore very probable that while protecting the computer system there might be any negligence, which in turn provides a loop hole to gain access and control and in turn misuse the computer system. 5. Loss of evidence- Loss of evidence is a very common & obvious problem as all the data are routinely destroyed

as they are updated every next moment. Further collection of data outside the territorial extent also paralyses this system of investigation. Mode And Manner Of Committing Cyber Tort: 1. Unauthorized access to computer systems or networks/Hacking-This kind of offence is normally referred as hacking in the generic sense. However the framers of The Information Technology Act 2002 have no where used this term and also the term unauthorised access has a wider connotation than the term hacking. 2. Theft of information contained in electronic form-This includes information stored in computer hard disks, removable storage media, magnetic disks, flash memory devices etc. Theft may be either by appropriating or rather misappropriating the data physically or by tampering them through the virtual medium. 3. Email bombing- This kind of activity refers to sending large numbers of mail to the victim, which may be an individual or a company or even mail servers there by ultimately resulting into crashing. 4. Data diddling- This kind of an attack involves altering raw data just before a computer processes it and then changing it back after the processing is completed. The Electricity Board faced similar problem of data diddling while the department was being computerised. 5. Salami attacks- This kind of crime is normally prevalent in the financial institutions or for the purpose of committing financial crimes. An important feature of this type of offence is that the alteration is so small that it would normally go unnoticed. E.g. The Ziegler case wherein a logic bomb was introduced in the banks system, which deducted 10 cents from every account and deposited it in a particular account. 6. Denial of Service attack- The computer of the victim is flooded with more requests than it can handle which cause it to crash. Distributed Denial of Service (DDoS) attack is also a type of denial of service attack, in which the offenders are wide in number and widespread. E.g. Amazon, Yahoo. 7. Virus/worm attacks- Viruses are programs that attach themselves to a computer or a file and then circulate themselves to other files and to other computers on a network. They usually affect the data on a computer, either by altering or deleting it. Worms, unlike viruses do not need the host to attach themselves to. They merely make functional copies of themselves and do this repeatedly till they eat up all the available space on a computer's memory. E.g. love bug virus, which affected at least 5 % of the computers of the globe. The losses were accounted to be $ 10 million. The world's most famous worm was the Internet worm let loose on the Internet by Robert Morris sometime in 1988 which almost brought the development of Internet to a complete halt. 8. Logic bombs- These are event dependent programs. This implies that these programs are created to do something only when a certain event (known as a trigger event) occurs. E.g. even some viruses may be termed logic bombs because they lie dormant all through the year and become active only on a particular date (like the Chernobyl virus). 9. Trojan attacks- This term has its origin in the word Trojan horse. In software field this means an unauthorized programme, which passively gains control over anothers system by representing itself as an authorised programme. The most common form of installing a Trojan is through e-mail. E.g. a Trojan was installed in the computer of a lady film director in the U.S. while chatting. The cyber criminal through the web cam installed in the computer obtained her nude photographs. He further harassed this lady. 10. Internet time thefts- Normally in these kinds of thefts the Internet surfing hours of the victim are used up by another person. This is done by gaining access to the login ID and the password. E.g. Colonel Bajwas Case- the Internet hours were used up by any other person. This was perhaps one of the first reported cases related to cyber crime in India. However this case made the police infamous as to their lack of understanding of the nature of cyber tort. 11. Web jacking-This term is derived from the term hi jacking. In these kinds of offences the hacker gains access and control over the web site of another. He may even mutilate or change the information on the site. This may be done for fulfilling political objectives or for money. E.g. recently in the Case of MIT (Ministry of Information Technology) its site was hacked by the Pakistani hackers and some obscene matter was placed therein. Further the site of Bombay crime branch was also web jacked. Another case of web jacking is that of the Gold Fish Case. In this case the site was hacked and the information pertaining to gold fish was changed. Further a ransom of US $ 1 million was demanded as ransom. Thus web jacking is a process where by control over the site of another is made backed by some consideration for it.

 Who Are Generally Cyber Criminals: The cyber criminals constitute of various groups/ category. This division may be justified on the basis of the object that they have in their mind. The following are the category of cyber criminals1. Children and adolescents between the age group of 618 years The simple reason for this type of delinquent behaviour pattern in children is seen mostly due to the inquisitiveness to know and explore the things. Other cognate reason may be to prove themselves to be outstanding amongst other children in their group. Further the reasons may be psychological even. E.g. the Bal Bharati (Delhi) case was the outcome of harassment of the delinquent by his friends. 2. Organized hackers-These kinds of hackers are mostly organised together to fulfil certain objective. The reason may be to fulfil their political bias, fundamentalism, etc. Recently the Indian Government had been targeted with the same. Further the NASA as well as the Microsoft sites is always under attack by the hackers. 3. Professional hackers/crackers Their work is motivated by the colour of money. These kinds of hackers are mostly employed to hack the site of the rivals and get credible, reliable and valuable information. Further they are employed to crack the system of the employer basically as a measure to make it safer by detecting the loopholes. state databases and news services,41 (3) cyberspace research libraries of law firms,42 (4) national, regional, and local verdict reporters,43 (5) reports of domain name disputes,44 (6) individual cyberspace cases reported on law firm web sites,45 (7) law school research centers,46 (8) American Law Reports (ALR) annotations,47 (9) all Internet-related Mealey publications,48 (10) e-commerce law secondary sources,49 (11) Internet A Broad Classification Of Cyber Tort.: 1. Harassment via e-mails- Harassment through e-mails is not a new concept. It is very similar to harassing through letters. Recently I had received a mail from a lady wherein she complained about the same. Her former boy friend was sending her mails constantly sometimes emotionally blackmailing her and also threatening her. This is a very common type of harassment via e-mails. 2. Cyber-stalking- The Oxford dictionary defines stalking as "pursuing stealthily". Cyber stalking involves following a person's movements across the Internet by posting messages (sometimes threatening) on the bulletin boards frequented by the victim, entering the chat-rooms frequented by the victim, constantly bombarding the victim with emails etc. 3. Dissemination of obscene material/ Indecent exposure/ Pornography (basically child pornography) / Polluting through indecent exposure-Pornography on the net may take various forms. It may include the hosting of web site containing these prohibited materials. Use of computers for producing these obscene materials. Downloading through the Internet, obscene materials. These obscene matters may cause harm to the mind of the adolescent and tend to deprave or corrupt their mind. Two known cases of pornography are the Delhi Bal Bharati case and the Bombay case wherein two Swiss couple used to force the slum children for obscene photographs. The Mumbai police later arrested them. 4. Defamation:- It is an act of imputing any person with intent to lower the person in the estimation of the rightthinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule. Cyber defamation is not different from conventional defamation except the involvement of a virtual medium. E.g. the mail account of Rohit was hacked and some mails were sent from his account to some of his batch mates regarding his affair with a girl with intent to defame him. 5. Unauthorized control/access over computer system:-This activity is commonly referred to as hacking. The Indian law has however given a different connotation to the term hacking, so we will not use the term "unauthorized access" interchangeably with the term "hacking" to prevent confusion as the term used in the Act of 2000 is much wider than hacking. 6. E mail spoofing- A spoofed e-mail may be said to be one, which misrepresents its origin. It shows it's origin to be different from which actually it originates. Recently spoofed mails were sent on the name of Mr. Na.Vijayashankar (naavi.org), which contained virus. Rajesh Manyar, a graduate student at Purdue University in Indiana, was arrested for threatening to detonate a nuclear device in the college campus. The alleged e- mail was sent from the account of another student to the vice president for student services. However the mail was traced to be sent from the account of Rajesh Manyar. 7. Computer vandalism:-Vandalism means deliberately destroying or damaging property of another. Thus computer vandalism may include within its purview any kind of physical harm done to the computer of any person. These

acts may take the form of the theft of a computer, some part of a computer or a peripheral attached to the computer or by physically damaging a computer or its peripherals. 8. Intellectual Property crimes / Distribution of pirated software:- Intellectual property consists of a bundle of rights. Any unlawful act by which the owner is deprived completely or partially of his rights is an offence. The common form of IPR violation may be said to be software piracy, copyright infringement, trademark and service mark violation, theft of computer source code, etc. The Hyderabad Court has in a land mark judgement has convicted three people and sentenced them to six months imprisonment and fine of 50,000 each for unauthorized copying and sell of pirated software. 9. Cyber terrorism against the government organization:-At this juncture a necessity may be felt that what is the need to distinguish between cyber terrorism and cyber torts. Both are dangerous acts. However there is a compelling need to distinguish between both these acts. A cyber tort is generally a domestic issue, which may have international consequences, however cyber terrorism is a global concern, which has domestic as well as international consequences. The common form of these terrorist attacks on the Internet is by distributed denial of service attacks, hate websites and hate emails, attacks on sensitive computer networks, etc. Technology savvy terrorists are using 512-bit encryption, which is next to impossible to decrypt. The recent example may be cited of Osama Bin Laden, the LTTE, attack on Americas army deployment system during Iraq war. Cyber terrorism may be defined to be the premeditated use of disruptive activities, or the threat thereof, in cyber space, with the intention to further social, ideological, religious, political or similar objectives, or to intimidate any person in furtherance of such objectives Another definition may be attempted to cover within its ambit every act of cyber terrorism.

A terrorist means a person who indulges in wanton killing of persons or in violence or in disruption of services or means of communications essential to the community or in damaging property with the view to (1) putting the public or any section of the public in fear; or (2) affecting adversely the harmony between different religious, racial, language or regional groups or castes or communities; or (3) coercing or overawing the government established by law; or (4) endangering the sovereignty and integrity of the nation and a cyber terrorist is the person who uses the computer system as a means or ends to achieve the above objectives. Every act done in pursuance thereof is an act of cyber terrorism. 9. Trafficking:- Trafficking may assume different forms. It may be trafficking in drugs, human beings, arms weapons etc. These forms of trafficking are going unchecked because they are carried on under pseudonyms. A racket was busted in Chennai where drugs were being sold under the pseudonym of honey. 10. Fraud & Cheating:- Online fraud and cheating is one of the most lucrative businesses that are growing today in the cyber space. It may assume different forms. Some of the cases of online fraud and cheating that have come to light are those pertaining to credit card crimes, contractual crimes, offering jobs, etc. Recently the Court of Metropolitan Magistrate Delhi (17) found guilty a 24-year-old engineer working in a call centre, of fraudulently gaining the details of Campa's credit card and bought a television and a cordless phone from Sony website. Metropolitan magistrate Gulshan Kumar convicted Azim for cheating under IPC, but did not send him to jail. Instead, Azim was asked to furnish a personal bond of Rs 20,000, and was released on a year's probation. Distinction Between Cyber Crime And Cyber Tort There is specific distinction between cyber crime and cyber torts which has to be cleared when we are discussing cyber torts. The cyber crime includes hacking/cracking, Possession of unauthorised information , cyber terrorism against government organisations ,distribution of pirated software , harassment through emails , cyber stalking , dissemination of obscene material on the internet , defamation , hacking/cracking , indecent exposure , computer vandalism , transmitting virus , internet intrusion , unauthorised control over computer systems , pornography , exposing the youth to indecent material , Trafficking. Cyber torts include cyber stalking , breach of privacy , cyber obscenity and cyber defamation. So there may be some elements which may be common in both but there are several differences between the two. Statutory Provisions:

The Indian parliament considered it necessary to give effect to the resolution by which the General Assembly adopted Model Law on Electronic Commerce adopted by the United Nations Commission on Trade Law. As a consequence of which The Information Technology Act 2000 was passed and enforced on 17th May 2000.the preamble of this Act states its objective to legalise e-commerce and further amend the Indian Penal Code 1860, The Indian Evidence Act 1872, The Bankers Book Evidence Act1891 and The Reserve Bank of India Act 1934. The basic purpose to incorporate the changes in these Acts is to make them compatible with the Act of 2000. So that they may regulate and control the affairs of the cyber world in an effective manner. The important sections are Ss. 43,65,66,67. Section 43 in particular deals with the unauthorised access, unauthorised downloading, virus attacks or any contaminant, causes damage, disruption, denial of access, interference with the service availed by a person. This section provide for a fine up to Rs. 1 Crore by way of remedy. Section 65 deals with tampering with computer source documents and provides for imprisonment up to 3 years or fine, which may extend up to 2 years or both. Section 66 deals with hacking with computer system and provides for imprisonment up to 3 years or fine, which may extend up to 2 years or both. Further section 67 deals with publication of obscene material and provides for imprisonment up to a term of 10 years and also with fine up to Rs. 2 lakhs. Adjudication of a Cyber Torts On the directions of the Bombay High Court the Central Government has by a notification dated 25.03.03 has decided that the Secretary to the Information Technology Department in each state by designation would be appointed as the AO for each state. Liability of intermediaries and the author under Indian law The Internet has made it easier than ever before to spread a huge amount and variety of information worldwide. As mentioned earlier, SNWs are, at a grass root level, a medium for exchanging information between people. SNWs allow any person to write any statement, including the defamatory one, on their own or a third person's virtual profile. In this scenario, the question which naturally arises is: who can be sued by the person against whom such defamatory statement has been made. Under the operative Indian law, the person who made such statement as well as its distributor and publishers can be sued. Apart from the author of such statement, intermediaries such as the concerned SNW, the website holder, the internet service providers, as well as the other users of such SNW on whose profiles defamatory statements have been written by the author, can be sued in their capacity as a publisher of defamatory statements and can be held liable for such statements. It is to be noted that such intermediaries or other users of SNWs may not be aware of such defamatory statements by the author on their own virtual profile. Section 79 of the Information Technology Act, 2000 (the "Act") gives immunity to network service providers. According to Section 79 of the Act, a 'network service provider' (defined as a person who on behalf of another person receives, stores or transmits the electronic messages) shall not be liable under the Act, or Rules or Regulations made there under, for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention. The Information Technology Amendment Act, 2008 The Information Technology Amendment Act, 2008 was passed by the Indian Parliament on December 22, 2008 and following Presidential assent it has become a law from February 5, 2009. The amendment bears a certain degree of similarity to the prevailing law in the United States of America ("USA"). In USA, intermediaries such as SNWs, internet service providers and other interactive web service providers are exempted from liability under defamation if (i) they prove that they have no control over the statement or content and (ii) they remove such statement or content from their website or network immediately upon receiving the notice from the plaintiff. The amended Section 79 of this Amendment Act provides the mechanism equivalent to the law of USA. Following are the relevant provisions of the Information Technology Act (after the said amendment comes into force). Section 79: (1) Notwithstanding anything contained in any other law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available by him. (2) The provisions of sub-section (1) shall apply if

(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored; or (b) (i) (ii) (iii) (3) (a) the select select The or the initiate the modify of conspired receiver the of information sub-section or abetted in intermediary the the contained (1) the shall commission in not of the transmission, the does not transmission, and transmission. apply unlawful if act;

provisions has

intermediary

(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner. (4) Intermediary shall observe such other guidelines as the Central Government may prescribe in this behalf. Explanation.--For the purpose of this section, the expression "third party information" means any information dealt with by an intermediary in his capacity as an intermediary. Section 2(w) "intermediary", with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes, but does not include body corporate referred to in section 43A." Analysis Of The Statutory Provisions: The Information Technology Act 2000 was undoubtedly a welcome step at a time when there was no legislation on this specialised field. The Act has however during its application has proved to be inadequate to a certain extent. The various loopholes in the Act are1. The hurry in which the legislation was passed, without sufficient public debate, did not really serve the desired purpose Experts are of the opinion that one of the reasons for the inadequacy of the legislation has been the hurry in which it was passed by the parliament and it is also a fact that sufficient time was not given for public debate. 2. Cyberlaws, in their very preamble and aim, state that they are targeted at aiding e-commerce, and are not meant to regulate cyber torts :-Mr. Pavan Duggal holds the opinion that the main intention of the legislators has been to provide for a law to regulate the e-commerce and with that aim the I.T.Act 2000 was passed, which also is one of the reasons for its inadequacy to deal with cases of cyber crime. At this juncyure it would not be completely wrong to contend that the above statement by Mr. Duggal is not fundamentally correct. The reason being that the preamble does state that the Act aims at legalising e-commerce. However it does not stop here. It further amends the I.P.C., Evidence Act, Bankers Book Evidence and RBI Act also. The Act also aims to deal with all matters connected therewith or incidental thereto. It is a cardinal rule of interpretation that text should be read as a whole to gather the meaning. It seems that the above statement has been made in total disregard of this rule of interpretation. The preamble, if read as a whole, makes it very clear that the Act equally aims at legalising e-commerce and to curb any offences arising there from. 3. Cyber torts:- The recent cases including Cyber stalking cyber harassment, cyber nuisance, and cyber defamation have shown that the I.T.Act 2000 has not dealt with those offences. Further it is also contended that in future new forms of cyber torts will emerge which even need to be taken care of. Therefore India should sign the cyber crime convention. However the I.T.Act 2000 read with the Penal Code is capable of dealing with these felonies. 4. Cyber crime in the Act is neither comprehensive nor exhaustive:- Mr. Duggal believes that we need dedicated legislation on cyber crime that can supplement the Indian Penal Code. The contemporary view is held by Mr. Prathamesh Popat who has stated- "The IT Act, 2000 is not comprehensive enough and doesn't even define the term 'cyber crime". Mr. Duggal has further commented, India, as a nation, has to cope with an urgent need to

regulate and punish those committing cyber torts, but with no specific provisions to do so. Supporters of the Indian Penal Code School vehemently argue that IPC has stood the test of time and that it is not necessary to incorporate any special laws on cyber crime. This is because it is debated by them that the IPC alone is sufficient for all kinds of crime. However, in practical terms, the argument does not have appropriate backing. It has to be distinctly understood that cyber crime and cyberspace are completely new whelms, where numerous new possibilities and opportunities emerge by the day in the form of new kinds of crimes. 5.Ambiguity in the definitions- The definition of hacking provided in section 66 of the Act is very wide and capable of misapplication. There is every possibility of this section being misapplied and in fact the Delhi court has misapplied it. The infamous go2nextjob has made it very clear that what may be the fate of a person who is booked under section 66 or the constant threat under which the netizens are till s. 66 exists in its present form. Further section 67 is also vague to certain extent. It is difficult to define the term lascivious information or obscene pornographic information. Further our inability to deal with the cases of cyber pornography has been proved by the Bal Bharati case. 6. Uniform law:- Mr. Vinod Kumar holds the opinion that the need of the hour is a worldwide uniform cyber law to combat cyber torts. Cyber torts are a global phenomenon and therefore the initiative to fight it should come from the same level. E.g. the author of the love bug virus was appreciated by his countrymen. 7. Lack of awareness- One important reason that the Act of 2000 is not achieving complete success is the lack of awareness among the s about their rights. Further most of the cases are going unreported. If the people are vigilant about their rights the law definitely protects their right. E.g. the Delhi high court in October 2002 prevented a person from selling Microsoft pirated software over an auction site. Achievement was also made in the case before the court of metropolitan magistrate Delhi wherein a person was convicted for online cheating by buying Sony products using a stolen credit card. 8. Jurisdiction issues:- Jurisdiction is also one of the debatable issues in the cases of cyber crime due to the very universal nature of cyber space. With the ever-growing arms of cyber space the territorial concept seems to vanish. New methods of dispute resolution should give way to the conventional methods. The Act of 2000 is very silent on these issues. 9. Extra territorial application:- Though S.75 provides for extra-territorial operations of this law, but they could be meaningful only when backed with provisions recognizing orders and warrants for Information issued by competent authorities outside their jurisdiction and measure for cooperation for exchange of material and evidence of computer crimes between law enforcement agencies. 10. Raising a cyber army:- By using the word cyber army by no means I want to convey the idea of virtual army, rather I am laying emphasis on the need for a well equipped task force to deal with the new trends of hi tech crime. The government has taken a leap in this direction by constituting cyber crime cells in all metropolitan and other important cities. Further the establishment of the Cyber Crime Investigation Cell (CCIC) of the Central Bureau of Investigation (CBI) ) is definitely a welcome step in this direction. There are man cases in which the C.B.I has achieved success. The present position of cases of cyber crime is Case 1: When a woman at an MNC started receiving obscene calls, CBI found her colleague had posted her personal details on Mumbaidating.com. Status: Probe on

Case 2: CBI arrested a man from UP, Mohammed Feroz, who placed ads offering jobs in Germany. He talked to applicants via e-mail and asked them to deposit money in his bank account in Delhi. Status: Chargesheet not filed

Case 3: The official web-site of the Central Board of Direct Taxes was hacked last year. As Pakistan-based hackers were responsible, authorities there were informed through Interpol. Status: Pak not cooperating.

11. Cyber savvy bench:- Cyber savvy judges are the need of the day. Judiciary plays a vital role in shaping the enactment according to the order of the day. One such stage, which needs appreciation, is the P.I.L., which the Kerela High Court has accepted through an email. The role of the judges in todays word may be gathered by the statement- judges carve law is to law ought to be. Mr T.K.Vishwanathan, member secretary, Law Commission ,

has highlighted the requirements for introducing e-courts in India. In his article published in The Hindu he has stated if there is one area of Governance where IT can make a huge difference to Indian public is in the Judicial System. 12. Dynamic form of cyber crime:- Speaking on the dynamic nature of cyber crime FBI Director Louis Freeh has said, "In short, even though we have markedly improved our capabilities to fight cyber intrusions the problem is growing even faster and we are falling further behind. The (de)creativity of human mind cannot be checked by any law. Thus the only way out is the liberal construction while applying the statutory provisions to cyber crime cases. 13. Hesitation to report offences:- As stated above one of the fatal drawbacks of the Act has been the cases going unreported. One obvious reason is the non-cooperative police force. This was proved by the Delhi time theft case. "The police are a powerful force today which can play an instrumental role in preventing cybercrime. At the same time, it can also end up wielding the rod and harassing innocent s, preventing them from going about their normal cyber business."This attitude of the administration is also revelled by incident that took place at Merrut and Belgam. (for the facts of these incidents refer to naavi.com). For complete realisation of the provisions of this Act a cooperative police force is require. Conclusion: Capacity of human mind is unfathomable. It is not possible to eliminate cyber crime or either cyber torts from the cyber space. It is quite possible to check them. History is the witness that no legislation has succeeded in totally eliminating crime from the globe. The only possible step is to make people aware of their rights and duties (to report crime as a collective duty towards the society) and further making the application of the laws more stringent to keep a check. Undoubtedly the Act is a historical step in the cyber world.We would conclude with a word of caution for the pro-legislation school that it should be kept in mind that the provisions of the cyber law are not made so stringent that it may retard the growth of the industry and prove to be counter-productive and at the same time a vigil check should be kept on its misappropriation and further consequences. ************* This Article is Jointly written by: 1. Shreya Dave, 3rd year Student, BSc.,LLB, Gujarat National Law University & 2. Astha Srivastava, 3rd year Student, BCom.,LLB, Gujarat National Law University. Bibliography Books Referred (1) Cyber Crime And Corporate Liability-Wolters Kluwer-Rohas Nagpal (2) Handbook Of Cyber Laws-Macmillan-Vakul Sharma (3) Cybercrimes And Law (An Overview)-C.Vidya (4) Ramaswamy Iyer-The Law Of Torts-A Lakshminath And M Sridhar (5) Legal Era-II (6) Nagpal R. What is Cyber Crime? (7) Sify News 14.03.03 (8) Deccan Herald 16.03.03 (9) Hindustan Times 03.03.03 (10) Nagpal RDefining Cyber Terrorism Websites (1) http://www-bcf.usc.edu/~idjlaw/PDF/13-1/13-1 Rustad (2) http://www.ebook sdownloadfree.com/Security/Cyber-Situational-Awareness-Issues-andBI10250.html (3) en.wikipedia.org/wiki/Cyber (4) http://www.cyberessays.com/lists/cyber-torts/page0.html (5) http://www.slideworld.com/slideshows.aspx/CHAPTER-4-Torts-and-Cyber-Torts-ppt-2225880 Referred Koenig.pdf Researchlaw

Title of the topic basically talks about two main and important factors of Indian constitution of India i.e. Emergency provision & fundamental rights When the Constitution of India was being drafted, India was passing through a period of Stress and strain. Partition of the country, communal riots and the problem concerning the Merger of princely states including Kashmir. Thus, the Constitution-makers thought to Equip the Central Government with the necessary authority, so that, in the hour of emergency, When the security and stability of the country is threatened by internal and external threats. Therefore, some emergency provisions were made inConstitution to safeguard and protect the security, integrity and stability of the country and effective functioning of State Governments. Keeping in view the above stated points constitution makers inserted three kinds of emergency. Emergency provision falls in PART-XVIII of the constitution of india from art.352 to art. 360 1. National emergency (Article 352 of the constitution of india) 2. State emergency (Article 356 of the constitution of india) 3. Financial emergency (Article 360 of the constitution of india) Before moving to other points first we shall look into emergency provision and elaborate them. NATIONAL EMERGENCY As it is very clear from the opening words of the above stated heading,national emergency deals with constitutional provisions to be applied,whenever there are inbalance in the society in the whole country and not in a particular or specific region or state. 1.1:-Art. 352 reads that352. Proclamation of Emergency.(1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation. Explanation-A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof. Provisions have been made in the Constitution for dealing with extraordinary situations that may threaten the peace, security, stability and governance of the country or a part thereof. The Constitution of India has provided for imposition of emergency caused by war, external aggression or internal rebellion. This is described as the National Emergency. This type of emergency can be declared by the President of India if he is satisfied that the situation is very grave and the security of India or any part thereof is threatened or is likely to be threatened either, by war or external aggression by armed rebellion within the country. The President can issue such a proclamation even on the ground of threat of war or aggression. According to the 44th Amendment of the Constitution, the President can declare such an emergency only if the Cabinet recommends in writing to do so. Role of 44th amendment we will be discussing in later sub heads. As far as proclamation of national emergency is concerned,there are certain basic points which are stated in previous statements.those arethat the security of India or any part of the territory thereof is threatened-this statements talks about the situation when either the country wholly or any part of the country,but that would not be considered as state emergency,also this kind of proclamation may be made before the actual occurrence of such war, external aggression or armed rebellion. by war or by external aggression-the opening words itself are of explanatory nature,so they dont need to be explained much. when ever other objects (not within the Indian territory) try to create problems for India and its citizens through war or aggression. armed rebellion within the country-the word armed rebellion was not there in the constitutional provisions from the very beginning.before 1978 an emergency could be declared because of war,external aggression or internal disturbance, that was too vague and broad in sense.the 44th constitutional amendment substituted the word armed rebellion for internal disturbance.

Supreme court explained in one of the case,the expression internal disturbance "has a wider connotation than armed rebellion in the sense that armed rebellion is likely to pose a threat to the security of the country or a part thereof, while internal disturbace, though serious in nature, would not pose a threat to the security of the country or a part thereof. The intention underlying the substitution of the words internal disturbance by armed rebellion is to limit the invocation of art. 352 only to more serious situations where there is a threat to the security of the country. 1.2:- procedure of proclaiming emergencyAs I have already said that such a proclamation can be made by the president of the country,but there are some provision for that too, the President can declare such an emergency only if the Cabinet recommends in writing to do so. Such a proclamation of emergency has to be approved by both the Houses of Parliament by absolute majority of the total membership of the Houses as well as 2/3 majority of members present and voting within one month, otherwise the proclamation ceases to operate. In case the Lok Sabha stands dissolved at the time of proclamation of emergency or is not in session, it has to be approved by the Rajya Sabha within one month and later on by the Lok Sabha also within one month of the start of its next session. Once approved by the Parliament, the emergency remains in force for a period of six months from the date of proclamation. In case it is to be extended beyond six months, another prior resolution has to be passed by the Parliament. In this way, such emergency continues indefinitely. In the case of Minerva Mills ltd.vs Union of India held that there is no bar to judicial review of the validity of the proclamation of emergency issued by the president under 352(1). However, court's power is limited only to examining whether the limitations conferred by the constitution have been observed or not. It can check if the satisfaction of the president is valid or not. If the satisfaction is based on mala fide or absurd or irrelevant grounds, it is no satisfaction at all. 1.3:- procedure of revocking emergencyIf the situation improves the emergency can be revoked by another proclamation by the President of India. The 44th Amendment of the Constitution provides that ten per cent or more members of the Lok Sabha can requisition a meeting of the Lok Sabha and in that meeting, it can disapprove or revoke the emergency by a simple majority. In such a case emergency will immediately become inoperative. 1.4:-Effects of national emergencyThe declaration of National Emergency has effects both on the rights of individuals and the autonomy of the states in the following manner : The most significant effect is that the federal form of the Constitution changes into unitary. The authority of the Centre increases and the Parliament assumes the power to make laws for the entire country or any part thereof, even in respect of subjects mentioned in the State List. The President of India can issue directions to the states as to the manner in which the executive power of the states is to be exercised. During period, the Lok Sabha can extend tenure by a period of 1 year at a time. But the same cant be extended beyond 6 months after the proclamation ceases to operate. The tenure of State Assemblies can also be extended in the same manner. During emergency, the President is empowered to modify the provisions regarding distribution of revenues between the Union and the States. The Fundamental Rights under Article 19 are automatically suspended and this suspension continues till the end of the emergency. But according to the 44th Amendment, Freedoms listed in Article 19 can be suspended only in case of proclamation on the ground of war or external aggression. From the above discussion, it becomes quite clear that emergency not only suspends the autonomy of the States but also converts the federal structure of India into a unitary one. Still it is considered necessary as it equips the Union Government with vast powers to cope up with the abnormal situations. EFFECT OF NATIONAL EMERGENCY FALLS IN ART.353 OF THE CONSTITUTION OF INDIA. STATE EMERGENCY

2.1:-Art. 356 reads that356. Provisions in case of failure of constitutional machinery in States.(1) If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation (a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State; (b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; (c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State: Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts. Reason beingIt is the duty of the Union Government to ensure that governance of a State is carried on in accordance with the provisions of theConstitution. Under Article 356, the President may issue a proclamation to impose emergency in a state if he is satisfied on receipt of a report from the Governor of the State, or otherwise, that a situation has arisen under which the Government of the State cannot be carried on smoothly. In such a situation, proclamation of emergency by the President is called proclamation on account of the failure (or breakdown) of constitutional machinery. In popular language it is called the Presidents Rule. 2.2:- procedure of proclaiming state emergencyLike National Emergency, such a proclamation must also be placed before both the Houses of Parliament for approval. In this case approval must be given within two months, otherwise the proclamation ceases to operate. If approved by the Parliament, the proclamation remains valid for six months at a time. It can be extended for another six months but not beyond one year. However, emergency in a State can be extended beyond one year if (a) a National Emergency is already in operation; or if (b) the Election Commission certifies that the election to the State Assembly cannot be held. 2.3:- procedure of revocking state emergencyAny such Proclamation may be revoked by a subsequent Proclamation. Every Proclamation shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament: Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People is dissolved or the dissolution of the House of the People takes place during the period of two months referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People. 2.4:- effect of state emergencyThe declaration of emergency due to the breakdown of Constitutional machinery in a State has the following effects: The President can assume to himself all or any of the functions of the State Government or he may vest all or any

of those functions with the Governor or any other executive authority. The President may dissolve the State Legislative Assembly or put it under suspension. He may authorise the Parliament to make laws on behalf of the State Legislature. The President can make any other incidental or consequential provision necessary to give effect to the object of proclamation. 2.5:-criticism of presidents ruleThe way Presidents Rule was imposed on various occasions has raised many questions. At times the situation really demanded it. But at other times, Presidents Rule was imposed purely on political grounds to topple the ministry formed by a party different from the one at the Centre, even if that particular party enjoyed majority in the Legislative Assembly. Suspending or dissolving assemblies and not giving a chance to the other political parties to form governments in states has been due to partisan consideration of the Union Government, for which Article 356 has been clearly misused. In view of the above facts, Article 356 has become very controversial. In spite of the safeguards provided by the 44th Amendment Act, this provision has been alleged to be misused by the Union Government. That is why, there is a demand either for its deletion or making provision in the Constitution to restrict the misuse of this Article. The Sarkaria Commission which was appointed to review the CentreState relations also recommended that Article 356 should be used only as a last resort. The Commission also suggested that the State Legislative Assembly should not be dissolved unless the proclamation is approved by the Parliament. It further suggested that all possibilities of forming an alternative government should be fully explored before the Centre imposes emergency in a State on grounds of breakdown of Constitutional machinery. The Supreme Court held in the Bommai case that the Assembly may not be dissolved till the Proclamation is approved by the Parliament. On a few occasions such as when Gujral Government recommended use of Article 356 in Uttar Pradesh, the President returned the recommendation for reconsideration.The Union Government took the hint and dropped the proposal. FINANCIAL EMERGENCY 3.1:- Art. 360 reads that360. Provisions as to financial emergency.If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened, he may by a Proclamation make a declaration to that effect. The third type of Emergency is Financial Emergency provided under Article 360. It provides that if the President is satisfied that the financial stability or credit of India or any of its part is in danger, he may declare a state of Financial Emergency. Like the other two types of emergencies, it has also to be approved by the Parliament. It must be approved by both Houses of Parliament within two months. Financial Emergency can operate as long as the situation demands and may be revoked by a subsequent proclamation. Art 360 provides that if the president is satisfied that a situation has arisen whereby the financial security of India or the credit of India or of any part of India is threatened, he may make a declaration to that effect. Under such situation, the executive and legislative powers will go to the centre. This article has never been invoked. A Proclamation issued under Art. 360 (a) may be revoked or varied by a subsequent Proclamation (b) shall be laid before each House of Parliament (c) shall cease to operate at the expiration of two months, unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament. IN INDIA FINANCIAL EMERGENCY HAS NEVER TAKEN PLACE,SO REGARDING THIS MATTER WE DONT HAVE SUFFICIENT INFORMATION ,BACAUSE NO DISPUTE EVER AROSE OR ANY CASE LAW EVER CAME IN THE LIGHT. 3.2:- Effects of Financial EmergencyThe proclamation of Financial Emergency may have the following consequences: (a) The Union Government may give direction to any of the States regarding financial matters. (b) The President may ask the States to reduce the salaries and allowances of all or any class of persons in government service. (c) The President may ask the States to reserve all the money bills for the consideration of the Parliament after they have been passed by the State Legislature. (d) The President may also give directions for the reduction of salaries and allowances of the Central Government employees including the Judges of the Supreme Court and the High Courts. As mentioned earlier So far, fortunately, financial emergency has never been proclaimed.

FUNDAMENTAL RIGHTS 4.1:-DEFINITIONFundamental Rights are those basic conditions of social life without which a citizen cannot be at his best self or those basic conditions which are very essential for the good life of a citizen. In pre-constitutional india we didnt had any concept of fundamental rights,We have borrowed the concept of Fundamental Rights from U.S.A. which was the first country in the world, to include a Bill of Rights in its constitution. fundamental rights falls In Part III of the Constitution from art. 12 to art. 35. the Fundamental Rights are justiciable when we say wordjusticiable It means that the citizens can seek the assistance of the courts for the enforcement of their Fundamental Rights under article 32 (Supreme Court) and article 226 (High Courts). An individual as well as group of people can ask the court to issue the writsThe writ of certiorari is one of the writs issued by the High Court or the Supreme court to protect the Fundamental rights of the citizens. It is issued to a lower court directing it that the record of a case be sent up for review with all the files, evidence and documents with an aim to overrule the judgement of the lower court. The writ of mandamus is an order of a court of law issued to a subordinate court or an officer of government or a corporation or any other institution commanding the performance of certain acts or duties. The Fundamental Rights can also be suspended during the Emergency under Article 359 of the Constitution by the President of India.as we discussed earlier during national emergency these rights can be suspended but not those conferred in art. 20 and art. 21. The Fundamental Rights are not absolute in nature.Certain restrictions can be placed on them in the interest of security of the state, public order, friendly relations with foreign states and to maintain decency or morality. 4.2:-description of fundamental rightsU.S.A. was the first country in the world to make a provision for the Bill of Rights for its citizens. The Fundamental Rights are contained in Part III of the Constitution.The Fundamental Rights contain twenty four Articles from Article 12 to 35.In the above Articles not only the rights have been defined elaborately but limitations have also been laid down. there are some restrictions too,Due to these very restrictions it has been contended them that the Indian Constitution which has granted the fundamental rights with one hand has taken them away with the other hand. These Fundamental Rights can be suspended during emergency by the President of India under Article 359. The Fundamental Rights are justiciable. Under Article 32 of the Constitution, a person can go to the Supreme Court for the enforcement of these rights. Similarly, under Article 226 a person can go to the High Courts for the enforcement of these rights within their territorial jurisdiction. Following are the Fundamental Rights granted under the Constitution of India: (i) Right to Equality Articles 14 to 18 of the Indian Constitution have been devoted to the Right to Equality. This right ensures social and political equality to the citizens of India. The Right to Equality means the following things: (a) Article 14 guarantees to all persons equality before the law and equal protection of laws within the territory of India. This Article asserts the supremacy of law or Rule of law. (b) Every citizen irrespective of his status is subject to the same law and the same courts. Any law which is discriminatory in its character will be held unconstitutional. (c) According to Article 15 the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. (d) The citizens will not be subjected to any disability on any of the above mentioned grounds in regard to access to shops, hotels, places of public entertainment or the use of wells, tanks, ghats, roads and other public places wholly or maintained out of state funds. (e) Article 16 has guaranteed equality of opportunity in matters relating to employment or appointment to public services to all citizens irrespective of religion, race, sex, descent, place of birth or residence.

(f) Article 17 has declared untouchability in any form as unconstitutional. (g) Article 18 has laid down that no titles, not being military or academic distinction, shall be conferred by the State. (h) But nothing in the above Article 16 will prevent the state from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. (ii) Right to Freedom Articles 19 to 22 of the Constitution cover the Right to Freedom. Out of these, Article 19 is the most important. Under this Article, the following freedoms are guaranteed to the citizens of India: (a) Freedom of speech and expression; (b) Freedom to assemble peaceably and without arms; (c) Freedom to form associations or unions; (d) Freedom to move freely throughout the territory of India; (e) Freedom to reside and settle in any part of the territory of India; (f) Freedom to practice any profession, or to carry on any occupation, trade or business. But nothing in the above shall prevent the state from making any law, insofar as such law imposes reasonable restrictions in the interest of the sovereignty and integrity of India or the security of state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. The other three Articles protect the individual's life and liberty as under: (a) Article 20 states "No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence". (b) No person shall be prosecuted and punished for the same offence more than once. (c) No person who is accused of any offence, shall be compelled to be a witness against himself. (d) Article 21 states that no person shall be deprived of his life or personal liberty except according to procedure established by law. The Supreme Court has held in Maneka Gandhi Vs. Union of India (1978) that the aforesaid procedure must not be arbitrary, unfair or unreasonable. (e) Article 22 states that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult a legal practitioner of his choice. (f) Every person who is arrested and detained in custody without the authority of a magistrate shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for journey from place of arrest to the court of the magistrate. (g) Of course, the above does not prevent the state from enacting the law for preventive detention with certain safeguards like the Advisory Board, etc. (iii) Right against Exploitation Article 23 and 24 deal with this Right. (a) Under Article 23, traffic in human beings and begar and 9ther similar forms of forced labor are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (b) Of course, nothing in the above Article shall prevent the state from imposing compulsory service for public purposes, and in imposing such service, the state shall not make any discrimination on grounds only of religion, race, caste or class or any of them. (c) Article 24 says that "No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment." (iv) Right to Freedom of Religion This right has been dealt with under Articles 25-28. Following are the main points: (a) Article 25 gives freedom of conscience and freedom to profess, practice and propagate any religion subject of course to public order, morality and health. (b) Article 26 grants every citizen the right to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire movable and immovable property and to administer such property in accordance with law. (c) Under Article 27 "No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination". (d) Article 28 states "No religious instruction shall be imparted in any educational institution wholly maintained out of State funds." But the educational institutions established by trusts or endowments and managed by them would be free to impart any religious instruction in them as they deem essential. The Articles relating to the freedom of religion have helped to establish a Secular State in India with the State

adopting an attitude of strict impartiality in matters of religion. (v) Cultural and Educational Rights : Articles 29 and 30 deal with these rights. These articles ensure, to every section of the citizens, the protection of their language, script or culture. (a) Article 29 states that "Any section of the citizens residing in the territory of India or any port thereof having a distinct language, script or culture of its own shall have the right to conserve the some." (b) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. (c) Article 30 states that "All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice." (d) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. (vi) Right to Constitutional Remedies (a) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by the Constitution has been guaranteed under Arlicle 32. (b) The Supreme Court shall have the power to issue directions or order or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. (c) The right guaranteed by this Article shall not be suspended except as otherwise provided for by the Constitution. (d) This right can only be suspended during an Emergency by the President of India under Article 359. (e) These above-mentioned writs can also be issued by the High Courts for protecting Fundamental Rights under Article 226 of theConstitution within their territorial jurisdiction. (f) This right relating to constitutional remedies was rightly described by Dr. Ambedkar as the "heart and soul of the Constitution". This description is quite justified as in the absence of this right all other rights are of no consequence since they could not be enforced. This right makes the other rights as justiciable. NEED FOR EMERGENCY 1. NEED FOR NATIONAL EMERGENCY IN INDIANational Emergency has been declared in our country three times so far. For the first time,emergency was declared on 26 October 1962 after China attacked our borders in the North East. This National Emergency lasted till 10 January 1968, long after the hostilities ceased. For the second time, it was declared on 3 December 1971 in the wake of the second India-Pakistan War and was lifted on 21 March 1977. While the second emergency, on the basis of external aggression, was in operation, third National Emergency (called internal emergency) was imposed on 25 June 1975. This emergency was declared on the ground of internal disturbances. Internal disturbances justified impositin of the emergency despite the fact that the government was already armed with the powers provided during the second National Emergency of 1971 which was still in operation. AND AS WE DISCUSSED IN EARLIER POINTS,THAT AFTER 1978 THE WORDINTERNAL DISTURBANCES WAS SUBSTITUTED BY ARMED REBELLION. TO NARROW THE VIEW OF DISTURBANCES ANT TO REMOVE THE VAGUENESS AND AMBIGUITY. The basic need for an emergency occurs whenever there is imbalance within the country, whether wholly or partly. The ultimate aim and object of every government or political entity is to secure good life and safe life to its citizen, and the time we say citizen it means the public of country at large. Whether we talk about the first emergency caused by china attack or the second or the third emergency, in all the cases the social equilibrium of the country was imbalanced and security of citizen was on the stack. Emergency though suspend the fundamental rights excluding those conferred in art.20 and art. 21,it does transfer the powers from the hand of state government to the hand of central government. but this all phenomenon took place just to secure its citizen. this is what the concept and policy of welfare state-greatest happiness to greatest number

Fundamental rights are given to individual, and the only reason they are suspended during an emergency is to secure the people of country at large. Social interest is always upper then that of individual interest. 2.NEED FOR STATE EMERGENCY IN INDIAThis type of emergency has been imposed in most of the States at one time or the other for a number of times. in 1951 that this type of emergency was imposed for the first time in the Punjab State. In 1957, the Kerala State was put under the Presidents Rule. There have been many cases of misuse of constitutional breakdown.For example, in 1977 when Janata Party came into power at the Centre, the Congress Party was almost wiped out in North Indian States. On this excuse, Desai Government at the Centre dismissed nine State governments where Congress was still in power. This action of Morarji Desais Janata Government was strongly criticised by the Congress and others. But, when in 1980(after Janata Government had lost power) Congress came back to power at the Centre under Mrs.Gandhis leadership and dismissed all the then Janata Party State Governments. In both cases there was no failure of Constitutional machinery, but actions were taken only on political grounds. In 1986, emergency was imposed in Jammu and Kashmir due to terrorism and insurgency. In all, there are more than hundred times that emergency has been imposed in various States for one reason or the other. However, after 1995 the use of this provision has rarely been made. 3.NEED FOR FINANCIAL EMERGENCY IN INDIASo far, IN INDIA financial emergency has never been proclaimed. But the need and reason for financial emergency ,if ever occur,would be- the financial stability or credit of India or any of its part is in danger FUNDAMENTAL RIGHTS VS. EMERGENCY War Emergency If the president is satisfied that a grave emergency exists whereby the security of India or any part of its territory is threatended by war, external aggression or armed rebellion, he may proclaim a state of emergency under Article 352. Constitutional Emergency in the States If the President is satisfied on receipt of a report from the Governor or otherwise that a situation has arisen in which the Government of a Sate cannot be carried on in accordance with eh provisions of the Constitution, he is empowered to proclaim an emergency under Articles 356 Suspension of Fundamental Rights During the period of emergency, as declared under the either of the two categories discussed above, the State is empowered to suspend the Fundamental Rights guaranteed under Article 19 of the Constitution. The term 'State' is used here in the same sense in which it has been used in the Chapter on Fundamental Rights. It means that the power to suspend the operation of these Fundamental Rights is vested not only in Parliament but also in the Union Executive and even in subordinate authority. Further, the Constitution empowers the President to suspend the right to move any court of law for the enforcement of any of the Fundamental Rights. It means that virtually the whole Chapter on Fundamental Rights can be suspended during the operation of the emergency. However, such order are to be placed before Parliament as soon as possible for its approval. But art. 20 and art.21 can not be suspended in any case . Suspension of fundamental rights during emergency is a matter of debate and conflicts of opinion ab initio. it would be a mistake to treat human rights as though there were a trade-off to be made between human rights and goals such a security and development. . . . Strategies based on the protection of human rights are vital both for our moral standing and the practical effectiveness of our actions - Kofi Annan Fundamental rights are moral rights which have been made legal by the Constitution. These constitutional rights which are fundamental in character represent rights in the strong sense. They are distinct from ordinary legal and constitutional rights because they may not be restricted on ground of general utility.

The very essence of these rights is that they are guaranteed even if the majority would be worse off in doing so,that fundamental rights are necessary to protect the dignity of an individual. Invasion of these rights is a very serious matter and it means treating a man as less than a man. This is grave injustice and it is worth paying the incremental cost in social policy or efficiency that is necessary to prevent it. After so many debates and many conflicts the question ariseWhether the fundamental rights are absolute? fundamental rights are not absolute in nature. The government may impose restrictions on three grounds. The government might show that the values protected by the original right are not really at stake in the marginal case or at stake only in some attenuated form. Alternatively if it may show that if the right is defined to include the marginal case, then some competing right, in the strong sense, would be abridged. This is the principle of competing rights of other members of society as individuals. Making this rights choice and protecting the more important at the cost of the less important, does not weaken the notion of rights. Hence the government may limit rights if it believes that a competing right is more important. The third possibility is if it may show that if the right were so defined then the cost to society would not be simply incremental but would be of a degree far beyond the cost paid to grant the original right, a degree great enough to justify whatever assault on dignity of the individual it may result in. But another principle is there which is used in many human rights treaties and in national constitutions as well. government may not arbitrarily deprive persons of their fundamental rights, Most of debates on the issue assume a necessary trade off between rights and security, however it is submitted that the relation between the two is more complex than that. Restrictions on rights on ground of security are not justified per se. This may be because the trade off is unnecessary where the government may pass effective laws which do not violate rights or when harsh laws restricting rights will not yield results.However tensions do arise. If the security strategy genuinely implicates rights, then it may be justified and must be governed by the principle of proportionality.Proportionality analysis is an uphill task and involves balancing of the two social goods of liberty and security. It involves analysing if there exists a rational connection between the aims of the legislation and the means employed, if there is a less restrictive means available in order to achieve the aim. Thirdly, comparing the effectiveness of the means with the infringement of rights. The Habeas Corpus Case The most controversial use of emergency power in the history of India has been between 1975 and 1977. The experience of this state of emergency exposed the weaknesses and inadequacies of safeguards on use of crisis power by the government. Though restrictions were imposed on various rights in this period, the most serious infringement was of personal liberty, which is the focus on the next section. The President issued orders under the Constitution of India, art. 359(1) suspending the right of any person to move any court for enforcement of fundamental rights under arts. 14, 21 and 22 and 19 for the duration of the emergency. Following this declaration hundreds of persons were arrested and detained all over the country under the swoop of the Maintenance of Internal Security Act, 1971. Various persons detained under Maintenance of Internal Security Act, 1971, s. 3(1) filed petitions in different high courts for the issue of the writ of habeas corpus. This case well discuss in more elaborate way in later topics. The balance between rights and security may be enhanced by making further changes than those recommended in the 1978 amendment. This includes making the information withheld by the government under art. 22(6) justiciable. Seervai suggests this may be achieved by allowing a judge to examine the claim of the government that the information of grounds of detention has to be withheld in public interest.This via media is on the lines of the special advocate system in Britain.

The Indian experience with emergency powers reveals a mixed record. These powers were used more responsibly in 1962 than in 1970. The principle of proportionality must thus be the governing principle to ensure that rights are not subverted in the name of security. ROLE OF 42nd & 44th AMENDMENT 42nd amendment The Forty-second Amendment Act of 1976 (officially the "Constitution (Forty-second Amendment) Act, 1976") was an amendment to theConstitution of India that reduced the ability of the India's Supreme and High Courts to proclaim laws constitutional or unconstitutional. Passed by the Indian parliament on 2 November 1976, it also made India a socialist secular republic and laid down the duties of Indian citizens to their government. It was passed by the parliament during the Indian Emergency (1975 - 77) brought by the Congress government headed by Indira Gandhi . STATEMENT OF OBJECTS WITH RESPECT TO POWERS OF COURT, RIGHTS AND EMERGENCY PROVISION to make the directive principles more comprehensive and give them precedence over those fundamental rights which have been allowed to be relied upon to frustrate socio-economic reforms for implementing the directive principles. It is also proposed to take away the jurisdiction of High Courts with regard to determination of Constitutional validity of Central laws and confer exclusive jurisdiction in this behalf on the Supreme Court so as to avoid multiplicity of proceedings with regard to validity of the same Central law in different High Courts and the consequent possibility of the Central law being valid in one State and invalid in another State. It is also necessary to make certain modifications in the writ jurisdiction of the High Courts under article 226. Insertion of new article 31D.-After article 31C of the Constitution and before the sub-heading "Right to Constitutional Remedies", the following article shall be inserted, namely:--`31D. Saving of laws in respect of anti-national activities.- (1)Notwithstanding anything contained in article 13, no law providing for(a) the prevention or prohibition of anti-national activities; or (b) the prevention of formation of, or the prohibition of, anti-national associations, Insertion of new article 32A.-After article 32 of the Constitution, the following article shall be inserted, namely:"32A. Constitutional validity of State laws not to be considered in proceedings under article 32.-Notwithstanding anything in article 32, the Supreme Court shall not consider the constitutional validity of any State law in any proceedings under that article unless the constitutional validity of any Central law is also in issue in such proceedings.". Insertion of new article 131A.-After article 131 of the Constitution, the following article shall be inserted, namely:"131A. Exclusive jurisdiction of the Supreme Court in regard to questions as to Constitutional validity of Central laws.- Notwithstanding anything contained in any other provision of this Constitution, the Supreme Court shall, to the exclusion of any other court, have jurisdiction to determine all questions relating to the constitutional validity of any Central law. 44th AMENDMENT The Forty-fourth Amendment Act of 1978 (officially the "Constitution (Forty-second Amendment) Act, 1978") was an amendment to theConstitution of India that reduced or removed the provisions made by 42nd amendment. This amendment was taken plance durin the government of janta party. SALIENT FEATURES OF CA-44 In view of the special position sought to be given to fundamental rights, the right to property, which has been the occasion for more than one amendment of the Constitution, would cease to be a fundamental right and become only a legal right. Necessary amendments for this purpose are being made to article 19 and article 31 is being deleted.

A Proclamation of Emergency under article 352 has virtually the effect of amending the Constitution by converting it for the duration into that of a Unitary State and enabling the rights of the citizen to move the courts for the enforcement of fundamental rights---including the right to life and liberty---to be suspended. Adequate safeguards are, therefore, necessary to ensure that this power is properly exercised and is not abused. It is, therefore, proposed that a Proclamation of Emergency can be issued only when the security of India or any part of its territory is threatened by war or external aggression or by armed rebellion. Internal disturbance not amounting to armed rebellion would not be a ground for the issue of a Proclamation. Further, in order to ensure that a Proclamation is issued only after due consideration, it is sought to be provided that an Emergency can be proclaimed only on the basis of written advice tendered to the President by the Cabinet. In addition, as a Proclamation of Emergency virtually has the effect of amending the Constitution, it is being provided that the Proclamation would have to be approved by the two Houses of Parliament by the same majority which is necessary to amend the Constitution and such approval would have to be given within a period of one month. Any such Proclamation would be in force only for a period of six months and can be continued only by further resolutions passed by the same majority. The Proclamation would also cease to be in operation if a resolution disapproving the continuance of the Proclamation is passed by Lok Sabha. Ten per cent. or more of the Members of Lok Sabha can requisition a special meeting for considering a resolution for disapproving the Proclamation. As a further check against the misuse of the Emergency provisions and to put the right to life and liberty on a secure footing, it would be provided that the power to suspend the right to move the court for the enforcement of a fundamental right cannot be exercised in respect of the fundamental right to life and liberty. The right to liberty is further strengthened by the provision that a law for preventive detention cannot authorise, in any case. JUDICIAL INTERPRETATION OF VALIDITY OF SUSPENSION OF FUNDAMENTAL RIGHTS 1) POSITION BEFORE 1978:a) suspension of art. 19- makhan singh Vs. State of punjab -Art.358 makes it clear that things done or omitted to be done during emergency could not be chal lenged even after the emergency was over.in other words the suspension os art.19 was complete during the period in question and legispative and excutive action which contravened art.19 could not be questioned even after the emergency was over. B )suspension of art.20,21 A.D.M. Jabalpur Vs. shivkant shukla The President issued orders under the Constitution of India, art. 359(1) suspending the right of any person to move any court for enforcement of fundamental rights under arts. 14, 21 and 22 and 19 for the duration of the emergency. Following this declaration hundreds of persons were arrested and detained all over the country under the swoop of the Maintenance of Internal Security Act, 1971. Various persons detained under Maintenance of Internal Security Act, 1971, s. 3(1) filed petitions in different high courts for the issue of the writ of habeas corpus. The high courts broadly took the view that the detention may be challenged on the grounds of ultra vires, rejecting the preliminary objection of the government. Aggrieved by this the government filed appeals, some under certificates granted by high courts and some under special leave granted by the Supreme Court. Despite every high court ruling in favor of the detenus36. The Supreme Court ruled in favor the government. What the court except for Khanna, J. failed to realise is that the right to personal to life and liberty are human rights and is not a gift of the Constitution. International Covenant on Civil and Political Rights ,art. 4 recognises the right to life and personal liberty to be a non- derogable right even during times of emergency. C) suspension of art.14 and 16 Arjun singh vs.state of rajasthan The question arose whether art.16 is also suspended although it is not mentioned in order,the rajasthan high court held that art.16 remained operative even though art.14 was suspended.the court emphasized that under art.359 the enforcement of only such fundamental rights was suspended as were specifically and expressly mentioned in the presidential order. S.R. Bommai Vs Union of India Judgement and condition of art.356 after bommmai case-

The landmark case of S. R. Bommai v. Union of India, in the history of the Indian Constitution has great implications in Center-State relations. It is in this case that the Supreme Court boldly marked out the and limitations within which Article 356 has to function. The Supreme Court of India in its judgment in the case said that it is well settled that Article 356 is an extreme power and is to be used as a last method in cases where it is manifest that the constitutional machinery in a State has collapsed. The views expressed by the bench in the case are similar to the concern showed by the Sarkaria Commission. What are the observations of judges on Article 356 of Constitution of India- In this case the bench observed that the power conferred byArticle 356 upon the President is a conditioned power. It is not an absolute power. The existence of material - which may comprise of or include the report of the Governor is a pre-condition. The satisfaction must be formed on relevant material, and must have rational. Similarly, Article 356 of the Constitution confers a power upon the President to be exercised only where he is satisfied that a situation has arisen where the Government of a State cannot be carried on in accordance with the provisions of the Constitution. Under our Constitution, the power is really that of the Union Council of Ministers with the Prime Minister at its head. The satisfaction contemplated by the article is subjective in nature. However, the subjective satisfaction if based on malice may be questioned in court of law. The proclamation of emergency can be done by governor only after the approval by both Houses of Parliament under clause (3) of Article 356, and not before. Until such approval, the President can only suspend the Legislative Assembly by suspending the provisions of Constitutionrelating to the Legislative Assembly under subclause (c) of clause (1). However, the dissolution of Legislative Assembly can be resorted on only where it is found necessary for achieving the purposes of the Proclamation. According to Article 356, clause (3) in case both Houses of Parliament disapprove or do not approve the Proclamation, the Proclamation lapses at the end of the two-month period, and in such a situation the gvernment which was dismissed revives. Also the Legislative Assembly, which may have been kept in suspended gets reactivated. Similarly, as the Proclamation lapses, the acts done, orders made and laws passed during the period of two months do not become illegal or void. However, the same laws may be considered for judicial review, repeal or modification by various authorities. On the other hand, if the Proclamation is approved by both the Houses within two months, the Government which is dismissed does not revive on the expiry of period of the proclamation or on its revocation. Similarly, if the Legislative Assembly has been dissolved after the approval under clause (3), the Legislative Assembly does not revive on the expiry of the period of Proclamation or on its revocation. The most important point of the court in the case is, according to it Article 74(2) merely bars an enquiry into the question whether any, and if so, what advice was tendered by the Ministers to the President. It does not bar the Court from calling upon the Union Council of Ministers (Union of India) to disclose to the Court the material upon which the President had formed the requisite satisfaction. The material on the basis of which advice was tendered does not become part of the advice. Even if the material is looked into by or shown to the President, it does not partake the character of advice. Article 74(2) and Section 123 of the Evidence Act cover different fields. It may happen that while defending the Proclamation, the Minister or the official concerned may claim the privilege under Section 123. If and when such privilege is claimed, it will be decided on its own merits in accordance with the provisions of Section123. Judicial review of imposition of Article 356 The remark of the Supreme Court that proclamation of emergency is not beyond judicial review is welcome step. The court held that the Proclamation under Article 356(1) is not immune from judicial review. The Supreme Court or the High Court can strike down the Proclamation if it is found to be mala fide or based on wholly irrelevant or extraneous grounds. Earlier, with 38th (Amendment) Act by the 44th (Amendment) Act, government had taken out the power of reviewability of the action of imposition of emergency under Article 356(1). Now, under the new circumstances, when called upon, the Union of India has to produce the material on the basis of which action was taken. CONCLUSION The history of Indian constitution with respect to fundamental rights and their stability with emergency provisions is full of vagueness and ambiguity.

From the very beginning of the case of habeas corpus and makhan singh to the landmark case of S.R. bommai,the provisions and conditions are geting beter and beter. Initially even the suspension of art. 20 and 21 during emergency was valid,though those rights are not given by the constitutionbut by nature itself. No courts had the right and power to look into the matter of cases related to emergency. But now the condition is differentNow, the government of India cannot refuse to furnish reasons behind its action. However, the court will not go into the correctness of the material or its adequacy, still it will enquire whether the material was relevant to the action. And, conclusively, it would be enough for court to see if there are some valid reasons for the imposition. ********************* # Here in after to be considered as article # Proclamation of National Emergency, EMERGENCY PROVISIONS, Aspects of the Constitution of India # Naga peoples movement of human rights V. union of india,AIR 1998 SC 431 # AIR 1980 SC 1789: (1980)2 SCC 591 # Sarkaria Commission was set up in June 1983 by the central government of India. The Sarkaria Commission's charter was to examine the relationship and balance of power between state and central governments in the country and suggest changes within the framework ofConstitution of India.The Commission was so named as it was headed by Justice Rajinder Singh Sarkaria, a retired judge of the Supreme Court of India. The other two members of the committee were Shri B.Sivaraman and Dr.S.R.Sen. # AIR 1994 SC 1918: (1994) 3 SCC 1 # The Secretary-General, Report of the Secretary-General: In Larger Freedom: Towards Development, Security and Human Rights for All, delivered to the General Assembly, # As per the blacks law dictionary,9th Edn -by itself or oneself,in isolation # A.D.M. Jabalpur vs. Shivkant Shukla, AIR 1976 SC 1207 # Makhan Singh vs. State of Punjab, AIR 1964 SC 381 # A.D.M. Jabalpur vs. Shivkant Shukla, AIR 1976 SC 1207 # Arjun singh vs. state of rajasthan,AIR 1975 Raj 217 # S.R. Bommai Vs Union of India,AIR 1994 SC 1918

Federalism In India: Federalism in India is at once similar and distinct from other federations like that of America; distinct in that it is not a group of independent States coming together to form a federation by conceding a portion of their rights of government, but a distributed entity that derives its power from a single source - the Union. Sovereignty and the powers of governance are distributed and shared by several entities and organs within the Indian constitutional system . Dr. Babasaheb Ambedkar, who chaired the Drafting Committee of the Constituent Assembly, stressed the importance of describing India as a 'Union of States' rather than a 'Federation of States.' He said: '. . . what is important is that the use of the word Union is deliberate . . . Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source.' The similarity between the systems of government in the two countries, however, is remarkable. Both governments exhibit a strong Union control, where the individual States give up a significant portion of their autonomous rights to the Central Government in return for security and pursuit of common interests; in contrast, in a confederation the individual States retain most of their sovereignty and are only loosely bound together. In the words of Alexander Hamilton (the illustrious co-author of the Federalist Papers, along with James Madison and John Jay), when describing the proposed Constitution of the Federal Government of the United States of America, The definition of a confederate republic seems simply to be an 'assemblage of societies,' or an association of two or more states into one state. The extent, modifications, and objects of the federal authority are mere matters of discretion. So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government. This is in essence how one would describe Center-State relations in India; excepting provisions for certain emergency situations in the Constitution of India, where the Union would exercise absolute control within the State. James Madison dealt extensively with the issues related with the relinquishing of sovereign powers by States to a Central (or 'federal') authority in the Federalist Papers, specifically Federalist No. 45. He believes that, for the common good of all the members of a federal system, it is necessary for the individual States to sacrifice some of their powers to the Union. He then goes on to examine in detail the danger this would pose to the residual powers that remain with the States (this issue comes very close to the heart of this paper). He contends that a study of similar systems in ancient times, like the Achaean League or the Lycian Confederacy, would reveal that the danger of usurpation of authority by the Federal power would be smaller than the danger of degeneration of the federation into smaller factions that would not be able to defend themselves against external aggression. This is precisely the rationale behind the distribution of power between the Union and the States in India. In fact, specific powers are divided into three lists - the Union List, the State List, and the Concurrent List (powers shared by both the Union and the States). Therefore the system of government in India can be considered to be 'quasi-federal' in nature, in as much as it is both federal and unitary. It can be considered federal because of the distribution of powers between the Center and States and it may be considered unitary because of the retention of Union control over certain State matters, and also because of the constitutional provisions relating to emergencies when all powers of a State would revert to the Center. India has a vast and diverse population, with a large number of people living in abject poverty. Extraordinary situations are not novel to the Indian political scene. Therefore extraordinary powers to deal with these situations become necessary. The power contained in Article 356 is both extraordinary and arbitrary, but it is an uncanny trait of extraordinary power that it tends to corrupt the wielder. A close scrutiny of the history of its application would reveal that Article 356 is no exception. But before we turn to that, a systematic analysis of the constitutional development of this controversial piece of legislation is in order. The Development Of Article 356 The Government Of India Act, 1935: This Act first introduced the concept of 'Division of Powers' in British India. It was an experiment where the British Government entrusted limited powers to the Provinces. But since there was very little faith lost between the British and the Indian people, the British took precautions to keep a sufficient check on the powers given to the Provinces. These precautions were manifested in the form of emergency powers under Sections 93 and 45 of this Act, where the Governor General and the Governor, under extraordinary circumstances, exercised near absolute control over the Provinces. Drafting Committee Of The Constituent Assembly: On August 29, 1947, a Drafting Committee was set up by the Constituent Assembly. Under the chairmanship of Dr. B.R. Ambedkar, it was to prepare a draft Constitution for India. In the course of about two years, the Assembly discussed 2,473 amendments out of a total of 7,635 amendments tabled. When it was suggested in the Drafting

Committee to confer similar powers of emergency as had been held by the Governor-General under the Government of India Act, 1935, upon the President, many members of that eminent committee vociferously opposed that idea. Dr. Babasaheb Ambedkar then pacified the members stating: 'In fact I share the sentiments expressed by my Hon'ble friend Mr. Gupte yesterday that the proper thing we ought to expect is that such articles will never be called into operation and that they would remain a dead letter. If at all they are brought into operation, I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces.' He added: 'I hope the first thing he will do would be to issue a clear warning to a province that has erred, that things were not happening in the way in which they were intended to happen in theConstitution.' By virtue of this earnest advice given by the prime architect of the Indian Constitution, we can safely conclude that this is the very last resort to be used only in the rarest of rare events. A good Constitution must provide for all conceivable exigencies. Therefore thisArticle is like a safety valve to counter disruption of political machinery in a State. Article 355 states: 'It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.' The word 'otherwise' in Article 356(1) was not included in the original draft; it was later introduced through an amendment, despite protests from members of the original Drafting Committee, stating that it was an open invitation to abuse the Article. Dr. Ambedkar justified its introduction saying that Article 277A (now Article 355, cited above) imposed a duty upon the Center to ensure that the States are governed in accordance with constitutional provisions and that hence it would not be proper for the President to base his decision solely on the report of the Governor of the State. An Analogy Between Art. 356 And Section 45 & 93 Of The Government Of India Act, 1935: There are certain differences in the provision relating to the failure of the constitutional machinery under the present Constitution and the powers dealt with in Sections 45 and 93 of the Government of India Act, 1935. Firstly, the 1935 Act empowered the Governor-General to deal with a failure of the constitutional machinery at the Center (Section 45). It also empowered the Governor-General to deal with a similar situation in a Province (Section 93). The present Constitution, however, does not intend to suspend the Constitution of a State, but empowers the President to take steps in this regard, though he shall have to act on the report of the Governor or Ruler of the State. Secondly, under Section 93 of the 1935 Act, the executive and legislative powers of a State could be assumed by the Governor, acting at his discretion. The present Constitution has separated the two powers: the President, assuming executive powers, and the Union Parliament, assuming legislative powers. The Sarkaria Commission Report, 1987 Rare Use Of Article 356: The Sarkaria Commission recommended extremely rare use of Article 356. The Commission observed that, although the passage, '. . . the government of the State cannot be carried on in accordance with the provisions of this Constitution . . .' is vague, each and every breach and infraction of constitutional provisions, irrespective of their significance, extent, and effect, cannot be treated as constituting a failure of the constitutional machinery. According to the Commission, Article 356 provides remedies for a situation in which there has been an actual breakdown of the constitutional machinery in a State. Any abuse or misuse of this drastic power would damage the democratic fabric of theConstitution. The report discourages a literal construction of Article 356(1). The Commission, after reviewing suggestions placed before it by several parties, individuals and organizations, decided that Article 356 should be used sparingly, as a last measure, when all available alternatives had failed to prevent or rectify a breakdown of constitutional machinery in a State. Before taking recourse to the provisions ofArticle 356, all attempts should be made to resolve the crisis at State level. Avoiding Disastrous Consequences: According to the Commission's report, these alternatives may be dispensed with only in cases of extreme emergency, where failure on the part of the Union to take immediate action under Article 356 would lead to disastrous consequences. The report further recommended that a warning be issued to the errant State, in specific terms that it is not carrying on the government of the State in accordance with theConstitution. Before taking action under Article 356, any explanation received from the State should be taken into account. However, this may not be possible in a situation in which not taking immediate action would lead to disastrous consequences. The Governors Obligation To Explore Alternatives: In a situation of political breakdown, the Governor should explore all possibilities of having a Government enjoying majority support in the Assembly. If it is not possible for such a Government to be installed and if fresh elections can be held without delay, the report recommends that the Governor request the outgoing Ministry to continue as a caretaker government, provided the Ministry was defeated solely on a major policy issue, unconnected with any allegations of maladministration or corruption and agrees to continue. The Governor should then dissolve the Legislative Assembly, leaving the resolution of the constitutional crisis to the electorate. During the interim period, the caretaker government should merely carry on the day-to-day government and should

desist from taking any major policy decision. Every Proclamation of Emergency is to be laid before each House of Parliament at the earliest, in any case before the expiry of the two-month period stated inArticle 356(3). The State Legislative Assembly should not be dissolved either by the Governor or the President before a Proclamation issued under Article 356(1) has been laid before Parliament and the latter has had an opportunity to consider it. The Commission's report recommends amending Article 356 suitably to ensure this. The report also recommends using safeguards that would enable the Parliament to review continuance in force of a Proclamation. The Proclamation Of Emergency And The Governors Report: The report recommends appropriately amending Article 356 to include in a Proclamation material facts and grounds on which Article 356(1) is invoked. This, it is observed in the report, would make the remedy of judicial review on the grounds of mala fides more meaningful and the check of Parliament over the exercise of this power by the Union Executive more effective. The Governor's Report, which moves the President to action under Article 356, should be a 'speaking document, containing a precise and clear statement of all material facts and grounds on the basis of which the President may satisfy himself as to the existence or otherwise of the situation contemplated in Article 356.' The Commission's report also recommends giving wide publicity in all media to the Governor's Report. It will be seen from this peremptory examination of the important passages of the Sarkaria Commission Report that its recommendations are extensive and define the applicability and justification of Article 356 in full. The views of Sri P.V. Rajamannar, former Chief Justice of the Madras (Chennai) High Court, who headed the Inquiry Commission by the State of Tamil Nadu to report on Center-State relations, concur broadly with the views of the Sarkaria Commission. But it is unfortunate that the principles and recommendations given by them are disregarded in the present day and that actions have been taken that are prima facie against the letter and spirit of the Constitution of India. Judicial Review: The susceptibility of a Proclamation under Article 356 to judicial review is beyond dispute, because the power under Article 356(1) is a conditional power. In the exercise of the power of judicial review, the court is entitled to examine whether the condition has been satisfied or not. So the controversy actually revolves around the scope and reach of judicial review. From the decisions in the case of State of Rajasthan v. Union of India and the Bommai case, it is clear that there cannot be a uniform rule applicable to all cases. It is bound to vary depending upon the subject matter, nature of the right, and other factors. However, where it is possible the existence of satisfaction can always be challenged on the ground that it is 'mala fides or based on wholly extraneous and irrelevant grounds.' The relevance of judicial review in matters involving Article 356 is also emphasized in the Supreme Court judgment in re State of Madhya Pradesh v. Bharat Singh, where the Supreme Court held that it was not precluded from striking down a law passed prior to a Proclamation of Emergency, as ultra vires to theConstitution, just because the Proclamation was in force at that time. Judicial review of the Proclamation under Article 356(1) was first tested in State of Rajasthan v. Union of India. The Supreme Court, being the ultimate interpreter of the Constitution, has the power of judicial review on all actions emanating from or empowered by any constitutional provision. Though the power of the President under Article 356 concerns his political judgment and the courts usually avoid entering the political thicket, this power does not enjoy blanket immunity from judicial review. It has to be determined in the individual cases on the basis of justifiability, which is distinct from judicial review. But unless the mala fides of the Presidential Proclamation is shown, the Courts have been exhorted by the Supreme Court to avoid delving into the President's satisfaction for want of judicially manageable standards. This point is amply evident in the case of Minerva Mills and Others v. Union of India and Others, where the Supreme Court dwelt extensively on its power to examine the validity of a Proclamation of Emergency issued by the President. The Supreme Court in this matter observed, inter alia, that it should not hesitate to perform its constitutional duty merely because it involves considering political issues. At the same time, it should restrict itself to examining whether the constitutional requirements of Article 352 have been observed in the declaration of the Proclamation and it should not go into the sufficiency of the facts and circumstances of the presidential satisfaction in the existence of a situation of emergency. Thus we can safely conclude that, though limited, the Presidential Proclamation under Article 356 is subject to judicial review. Comparative Study In Other Countries Emergency Powers Of The Precedent Of The United States Of America: The Constitution in a democracy can be considered a written manifestation of the will of the general public; and hence the Constitutionshould be considered superior to any of the three organs of Government. Therefore, it cannot be assumed that any power that has not been expressly granted by the Constitution is implied. Article 1 8 of the US Constitution gives Congress the power to make rules and regulations to deal with and provide for emergencies. Harold C. Relyea, has pointed out: It may be argued, however, that the granting of emergency powers by Congress is implicit in its Article I, section 8 authority to 'provide for the common Defense and general Welfare,' the commerce clause, its war, armed forces, and militia powers, and the 'necessary and proper' clause empowering it to make such laws as are required to fulfill the executions of 'the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.' These powers, it would seem, are for Congress to grant, and are not vested directly in the President. So

we can say that only Congress has such powers, which have been assigned to it by the Constitution. But instead Presidents (Chief Executives) have assumed that these emergency powers are an executive privilege. For example, during the Civil War, President Lincoln suspended habeas corpus and curtailed other individual freedoms such as free speech and private property. When Congress intervened and his actions were questioned, he responded: 'It is believed that nothing has been done beyond the constitutional competency of Congress.' It was Chief Justice Taney who pointed out that '[the] president is commander in chief, but the two-year limit on military appropriations ensures that the House can disband the army if, in their judgment, the president used, or designed to use it for improper purposes.' He further stated that, while curtailing liberties of individuals, the only power the President had was to 'take care that the laws shall be faithfully executed.' According to Chief Justice Taney, the President's authority was to 'aid judicial authority,' not executing them himself or through officers appointed by him. According to the Constitution, during national emergencies only the 'habeas corpus clause' can be suspended by Congress and the President. Justice Jackson, concurring in the judgment in the 1952 Steel Seizure case, outlined a practical test for the constitutionality of executive action: 1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it. 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. This gives rise to the aspect of questionability of executive exercise of powers. The power of judicial review was established by the Supreme Court as early as 1803 in the matter of Marbury v. Madison. In this case, a suit was brought against the then Secretary of State, James Madison, in the form of a petition for a writ of mandamus. This judicial remedy in the original jurisdiction was available to the Supreme Court under the Judiciary Act of 1789. In denying the writ, Chief Justice Marshall ruled that the original jurisdiction of the Supreme Court was established by the Constitution and could not be enlarged or reduced by any means other than constitutional amendment, and therefore he held that the Judiciary Act of 1789 was unconstitutional. Thus it can be seen that the judiciary does have the right to question executive authority with respect to national emergencies and, furthermore, that any dispute arising thereof is considered to be 'judicially reviewable.' Though the situations of emergency envisaged in the American context differ from those in the Indian context, there is definitely a commonality as to the magnitude of events qualifying as an emergency. In 1934, a Supreme Court ruling defined an emergency as 'urgency and relative infrequency of occurrence as well as equivalence to a public calamity resulting from fire, flood, or like disaster not reasonably subject to anticipation.' This ruling concurs with the rare invocation of emergency rule in India according to the Indian Constitution. It was the National Emergencies Act (50 U.S.C. 1601-1651) by which the President was asked to 'declare formally the existence of a national emergency and to specify what statutory authority, activated by the declaration, would be used, and provided Congress a means to countermand the President's declaration and the activated authority being sought.' And it was President Theodore Roosevelt who 'declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it.' He also believed that 'it was not only his right but duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws.' This is exactly the opposite to the Indian context, where executive powers must have express authority from a specific constitutional provision. The next President of the United States, President William Howard Taft, was of the opinion 'that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise.' Taft concluded: 'There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest . . .' This view is more in accordance with the situation in India. The underlying principle is that all three organs of government in a democracy derive

their authority to act for the common people from theConstitution and, hence, every power exercised is by specific delegation and should not be assumed to be implied unless explicitly denied. Apart from the above two views on presidential emergency powers, there is one authority who is of the opinion that 'emergency powers are not solely derived from legal sources. The extent of their invocation and use is also contingent upon the personal conception which the incumbent of the Presidential office has of the Presidency and the premises upon which he interprets his legal powers. In the last analysis, the authority of a President is largely determined by the President himself.' In the Indian context, the only interpreter of the Constitution is the Supreme Court and no other person or body has a right to interpret it. The President of the United States has some powers that are permanently available to him for dealing with emergencies. A good example of this is the Defense Production Act, originally adopted in 1950 to prioritize and regulate the manufacture of military materials. This is similar to powers available to the President of India as the Supreme Commander of the Armed Forces. Apart from these permanent powers, there is a variety of standby laws - which are statutory provisions that have been delegated by Congress to the Executive - that convey special emergency powers once the President of the United States of America has formally declared a national emergency. The National Emergencies Act of 1976 prescribes formal procedures for invoking these authorities, accounting for their use and regulating their activation and application. These can be equated to the clauses of Article 356 (of the Indian Constitution), which regulates its invocation and use. The aspects of an emergency condition as put forward by Edward Corwin reflect characteristics strikingly similar to Article 356 of the Indian Constitution. The first is the temporal character of national emergency - sudden, unforeseen, and of unknown duration. This can be compared to the Drafting Committee and Sarkaria Commission's envisaged 'rarest of rare circumstances' application of Article 356 in India. The extension of Article 356 in gradual time intervals concurs with the 'unknown duration' aspect of a national emergency in the United States. The second aspect according to Corwin is potential gravity - a dangerous and lifethreatening situation. This is in concurrence with the Sarkaria Commission Report's recommendations to resort to Article 356 only if not doing so would lead to 'disastrous consequences.' The third aspect is perception - who discerns a phenomenon of emergency? Corwin's conclusion is that the American Constitution is guiding but not conclusive; this is analogous to our finding that the Indian Constitution, though it prescribes symptoms and criteria for qualifying an emergency, leaves it primarily to the judgment of the Governor of the State, in the form of the 'Governor's Report,' and to presidential discretion, in the form of the well-known 'otherwise' term in Article 356, to decide that a situation of emergency has arisen. The fourth aspect of a national emergency according to Corwin is the element of response to a sudden situation that cannot always be dealt with according to rule and that requires immediate action. This aspect is a combination of other aspects and adds a qualifier, viz. that there is no existing active rule that can counter the situation. This aspect is personified in the very first clause of Article 356: 'a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of thisConstitution.' The striking difference between emergencies as envisaged in the American Constitution is that they pertain solely to national emergencies. Hence, even if the situation affects a part of the country or a particular State, the scope of the stand-by powers of emergency of the President of the United States is national in character, whereas the scope of the powers under Article 356 of the Indian Constitution is restricted to particular States. This has its advantages and disadvantages. The advantage in the American instance is obvious; it gives the President wider latitude in mobilizing the whole country to deal with an emergency situation in one part. The disadvantage is that national emergency powers curtail individual rights at a national level, even if the emergency is regional in character. Out of concerns arising from the continued use of emergency powers by the Chief Executives long after the situation of emergency has passed (specifically the continued existence of President Truman's 1950 national emergency proclamation long after the conditions prompting its issuance had disappeared), the 'Special Committee on the Termination of the National Emergency' was chartered in June of 1972. At that time, the Committee established that four proclamations (those of 1933, 1950, 1970, and 1971) were in effect. The Special Committee - later reconstituted as the 'Special Committee on National Emergencies and Delegated Emergency Powers' - ascertained that no process existed for automatically terminating the four outstanding national emergency proclamations. This situation was in contrast to the provisions of Article 356(3) and (4) of the IndianConstitution, which stipulates checks and balances against the potential of prolonged impositions of arbitrary powers of discretion of the Executive. The recommendations of the Special Committee and a series of congressional debates culminated in the 1976 enactment of the National Emergencies Act, which rendered ineffective the four existing proclamations of emergency, requiring a new proclamation to activate standby extraordinary powers of the President. The Act in essence returned all standby emergency powers to dormancy two years after the Statute's approval. It further provided a procedure for future declarations and their congressional regulation. The checks and balances prescribed under the National Emergencies Act, are similar to the controlled method of escalation provided by the extensions of proclamations in graded time intervals, required under Article 356 of the Indian Constitution. In a legislative sense, the regulation of emergency powers of the Executive in the United States of America and in India are pretty similar, theoretically. Practically, it is a totally different story altogether. Public opinion in the United States of America is active enough to act as a restraint against executive excesses, whereas public opinion in India is yet to become such a substantive force. This is partially compensated by the vigilance of judicial activism CURRENT SITUATION IN INDIA The present situation in India shows that the 'dead-letter' provision - as Dr. Ambedkar hoped it would be

- has become a frequently invoked, not-so-dead Article; it has been activated more than a hundred times till today. The National Commission to Review the Working of the Constitution (NCRWC), which was established on February 22, 2000, on the basis of a joint resolution of the Government of India, Ministry of Law, Justice and Company Affairs (Department of Legal Affairs), submitted its extensive report in March 2002. In its analysis, the NCRWC stated that in at least twenty out of the more than one hundred instances, the invocation of Article 356 might be termed as a misuse. It is difficult to believe that, during his tenure as the Governor of the State of Uttar Pradesh, Romesh Bhandari made any real effort to install a popularly elected government or to conduct a constitutionally mandated floor-test to test the strength of the Legislative Assembly in the State for identifying a majority party before prompting the application of the Article by the President. After the fall of the Mayawati Government in the State of Uttar Pradesh, it might have been justifiable to impose President's Rule. But it was also necessary to hold fresh elections as soon as possible. The mala fides of the Union Executive in preventing the assumption of office by an unfavorable political entity became clearly manifest in Governor Bhandari's actions and the decision of the United Front Government at the Center, to re-impose President's Rule in Uttar Pradesh. The worst damage may possibly have been done through the office of the Governor, because the Governor cannot be held responsible for his or her actions. H. M. Seervai pointed out that the Governor can be removed only by the President and that the President acts on the advice of the Council of Ministers; hence the Governor is in office pretty much at the pleasure of the Union Executive. This may act as a bias whenever the Governor's duty requires him to go against the desires of the Union Executive. In its report, the NCRWC recommended that the President should appoint or remove the Governor in consultation with the Chief Minister of the State. This may act as a restraint on the misuse of power by the Office of the Governor. Another example of misuse of Article 356 was the imposition of President's Rule in the State of Gujarat from September1996 to October 1996, following the incidents of violence indulged in by members of the Gujarat Legislative Assembly. Soli Sorabjee pointed out that violence within the Assembly cannot be treated as an instance of failure of the constitutional machinery; it would otherwise become very easy for malicious legislators to dissolve a duly elected legislative body by creating pandemonium in the Assembly and thereby prompting improper invocation of Article 356. The correct procedure to be followed in such a situation is to pass suitable legislation for disqualifying the guilty legislators. Failure To Invoke Emergency Provisions: On the other extreme of misuse of Article 356 was the failure of the Union Executive - which was of the same political belief as the Government of Narendra Modi in Gujarat - to invoke Article 356 during the carnage following the Godhra train incident on February 27, 2002, in the State of Gujarat. To quote the words of Fali Nariman, noted lawyer and nominated member of the Upper House (Rajya Sabha) of the Indian Parliament during a parliamentary debate: 'Vital statistics tells us that there are more than 100000 persons in refugee camps and more than 30,000 people have been chargesheeted. Are these figures not enough to compel the Government to take action under articles 355 and 356?' Fali Nariman also rightly pointed out in an interview with a newspaper correspondent that the Constitution may not have envisaged a situation where an emergency has arisen in a State where the ruling party is of the same political persuasion as the one at the Center and, hence, the Center might be biased against dissolving that government by invoking Article 356. He also pointed out that the word 'otherwise' in the text of Article 356 becomes instrumental in such a situation to allow the President to act without waiting for the 'Governor's Report.' Conclusion: It is evident that there is a lack of effective safeguards against the abuse of Article 356 of the Indian Constitution. The safeguard of 'parliamentary approval' - outlined in Article 356(3) - of a Proclamation under Article 356(1) could be biased because the Party that is in power at the Center generally dominates Parliament by a majority vote. Furthermore, even a vote in Parliament declaring a particular imposition (or failure to impose) of President's Rule to be wrongful cannot undo the damage already done. However, the repeal of Article 356 is not advisable because the Indian polity is rife with crises and there has to be some contingency against a constitutional deadlock in a State. The NCRWC also advised against the repeal of Article 356, stating that this would create an imbalance in Union-State relations in upholding constitutional governance throughout India and that in many more instances than not the use of Article 356 was inevitable. Another option is to introduce further checks on the exercise of power under Article 356, by amendment. Even this is not advisable because it defeats the very purpose of the Article of dealing expeditiously with emergencies of constitutional failure in a State. Therefore, the most practical course left open may be to let history take its course. Eventually, the public opinion in India, we fervently hope, will awaken to the fact that Article 356 may veritably have become a noose that is slowly tightening around the neck of democracy in India, suffocating the right of the people under theConstitution. In the meantime, to nurture budding public opinion we do have a resource not to be underestimated, which is the power of judicial review of the Supreme Court, which has on more than one occasion shown that it is a power to be reckoned with. So we will have to suffice for now with occasional outcries against the Union Executive unsheathing or failing to unsheathe, at its sweet pleasure that double-edged sword called Article 356.