KIHOTO HOLLOHON VS ZACHILLHU : A CRITIQUE

A Project Proposal Made By

Name- Vicky Kumar

Roll No- 1574

Class- B.A. LLB

Submitted to – Prof. Dr. Anirudh Prasad

FINAL PROJECT SUBMITTED IN PARTIAL FULLFILLMENT OF

COURSE CONSTITUTIONAL LAW II DURING THE ACADEMIC
SESSION 2018-2019

6th, MARCH, 2019

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

1
ACKNOWLEDGEMENTS

I would specially like to thank my guide, mentor, Prof. Dr. Anirudh Prasad without whose
constant support and guidance this project would have been a distant reality.

This work is an outcome of an unparalleled infrastructural support that I have received from
Chankaya National Law University, Patna.

I owe my deepest gratitude to the library staff of the college.

It would never have been possible to complete this study without an untiring support from my
family, specially my parents.

This study bears testimony to the active encouragement and guidance of a host of friends and
well-wishers.

Name-Vicky Kumar

Roll - 1574

2
Contents

TOPIC ................................................................................................................. PAGE NO.

Declaration Page ................................................................................................................. 2

Acknowledgement ............................................................................................................... 3

Chapter 1:Introduction ....................................................................................................... 4

Chapter 2: Issue of the case ................................................................................................ 8

Chapter 3: Contention Raised .......................................................................................... 12

Chapter 4: Violation of the basic structure ...................................................................... 14

Chapter 5: Doctrine of severability .................................................................................. 20

Chapter 6: Restriction on Judicial Review…………………………………..……………23

Chapter 7: Judgement……………………………………………… ……………………25
Chapter 8: Subsquent development and conclusion……………………………………..26
Bibliography ...................................................................................................................... 29

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 Background and Introduction to Case

The Constitution of India is primarily a social document with a political philosophy intended
to bring about great changes in the socio-economic structure and to achieve the goals of
national unity and stability. It derives its force from the people and has at its base a value
system. Its preamble speaks of the sovereignty of people, democratic polity, justice, liberty,
equality and fraternity assuring the dignity of the individual and the unity and integrity of the
nation1. The preamble is a modified version of the objectives resolution of Jawaharlal Nehru
which served as the foundation in the making of the constitution. The resolution was deeply
rooted in the history of our movement of independence led by leaders who were committed to
certain ideals and to their fulfillment through fair and proper means. They were the main
architect of the basic law and they cautioned that it would not work unless its execution was
entrusted to persons of caliber, character and integrity, and unless healthy conventions were
developed to cover situations which cannot be provided for by precise formulae. They thus
valued human element in the working of the constitution, and hoped that the country would
produce such persons in abundance, and that good sense and wisdom would pervade the
functioning of political institutions 2

After the commencement of the constitution, however, it did not take long for political
functionaries to belie largely the hopes of the framers. Especially after the departure of
Nehru, the country witnessed a sharp decline in political morality and propriety and a
phenomenal growth of political corruption of varied type. The worst form of corruption that
emerged on a massive scale on the Indian Political Scene was defection of legislators wither
individually or in groups. The unprincipled floor crossing was nothing but a betrayal of the
electorate and undermining of the political organs of the state. The lust for power, position
and money was obviously behind such defections. The present day political process is closely
linked with socio-economic and cultural processes. Perversion of the former has a devastating
impact on the latter. This is what the politics of defection did. It was therefore widely
condemned and attempts were made to eradicate this evil by law but in vain in terms of the

1
Granville Austin: The Indian Constitution: Cornerstone of a Nation (1966)

2
Speech of Dr. Rajendra Prasad in the Constituent Assembly, Constituent Assembly Debates, Vols. X-XII at
933-94

4
Constitutional amendment bills 1973 and 1978. In early 1985, however, the government
initiative having the support of the opposition worked and Parliament enacted in record time
the Constitution (Fifty-Second Amendment) Act outlawing defections to save the foundations
of our nascent democracy and the principles that sustain it. 3

In the petitions heard together in the case of Kihota Hollohon v. Zachilhu and others4
hereinafter referred to as the case, the Constitutional validity of the Tenth Schedule
introduced by the Constitution (Fifty Second Amendment) Act, 1985, was challenged. These
cases were brought 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. The Constitution (Fifty-second Amendment) Act changed four
articles of the Constitution, viz. 101(3)(a), 102(2), 190(3)(a) and 191(2) and added tenth
schedule thereto. This Amendment is often referred to as Anti-Defection Law.

The constitutionality of the Anti-Defection Law has been upheld by the Hon’ble Supreme
Court in a 3:2 decision in the case. The majority consisted of M.N. Venkatachaliah, K.J.
Reddy, and S.C. Agrawal, Jj. and the minority was consisted by L.M. Sharma and J.S.
Verma, Jj. At the same time as upholding the Constitutional validity of the Anti-Defection
law the court has rules that the speaker’s orders under the law disqualifying a member of the
legislature on the ground of defection is subject to judicial review.

Some of the most eminent lawyers of the country were the counsels in the case and thus the
arguments and contentions are evidently crafted with utmost proficiency. The same have
been dealt with by the respective Hon’ble judges in a detailed manner, however, leaving aside
some contentions which may not have been required with view of reaching the conclusions.

The endeavor in the making of this project is to give a commentary on the views as expressed
by the Hon’ble judges of the Supreme Court in the case and therefore in the following
chapters the ruling has been scrutinized, criticized and observed. The chapters consist of the

3
Statement of Objects and Reasons appended to the Constitution (Fifty-second Amendment) Bill, 1985 (Bill
No. 22 of 1985) cited from http://indiacode.nic.in/coiweb/amend/amend52.htm

4
AIR 1993 SC 412

5
various contentions raised and urged in the case and contain a commentary upon the majority
and minority judgments on them respectively.

AIMS AND OBJECTIVES

The Aims and Objectives of this project are:

1. To study the facts of the case, contentions raised and the judgement rendered.
2. Critically examine the judgement given in the case.
3. To study the authoritative value of the judgement.

REVIEW OF LITERATURE
A comprehensive review of literature is an essential part of any scientific investigation. It is
necessary for the researcher to acquaint himself with the work done in the past which induces
insight into the problem for further work.

HYPOTHESIS
The researcher considers the following hypotheses:
1. The power of Speaker/ Chairman in anti defection cases is not immune from judicial
review.

RESEARCH METHODOLOGY
For this study, primary and secondary sources was utilized. Various constitutional provisions,
articles, e-articles, reports and books from library were used extensively in framing all the
data and figures in appropriate form, essential for this study.
The method used in writing this research is doctrinaire.

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Sources of Data

The researcher will rely upon both primary and secondary sources of data. The primary
sources include cases while the secondary sources include books.

i. Primary Sources- Natural Law Theory and Constitution of India

ii Secondary Sources- Books, articles and cases.

STYLE OF WRITING

The researcher will be using both analytical and descriptive styles of writing.

MODE OF CITATION

The researcher will be using a uniform mode of citation throughout this paper.

METHOD OF DATA COLLECTION

The researcher will make use of doctrinal methods that includes within its ambit the library
work.

LIMITATION OF RESEARCH

The researcher has undergone time and monetary limitation.

The scope of research

This piece of study would be very helpful for the lawmakers as it would explicitly state about
its utility in the present context. If found of not much relevance there is an urgent need to
either amend or repeal it. Law exists to sub serve social needs and therefore it is desirable that
it should change with the changing needs of society and life otherwise its results would be
contrary to the general belief ‘Law Is Dynamic’

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JUDGES-M.N. Venkatachaliah, L.M. Sharma, J.S. Verma, K. Jayachandra Reddy and
S.C.
Agrawal, JJ.

Issues Of The Case

In KihotoHollohan v. Zachillhu&Ors, 5

1. it was contended 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 Parliamentary democracy. It negates the freedom of speech, right to
dissent and freedom of conscience of our parliamentarians. They also contended that
the Tenth Schedule impinges upon the rights or immunities under Article 105(2).

2. Paragraph 6(1) was challenged as it seeked to make the decision of the speaker final
and immune from judicial review. According to Prof Wade the judicial control of
legality of a decision taken under a statute which grants such ‘finality’ is ‘unimpaired.

Facts of the case

Constitutional validity of the 52nd amendment act 1985
- petition challenging insertion of 10th schedule to Constitution
- para 7 of 10 Schedule which brings about change in operation of
Articles 136, 226 and 227 made without ratification of State Legislature as
provided under Article 368 (2) invalid
- non observance of such condition precedent does not affect severability of Para 7
from other parts of amendment
- 52nd amendment excluding para 7 valid
-Para 2 of 10thSchedule neither violate democratic rights of elected members nor
freedom of speech and freedom of vote and conscience
- Para 2 is not violative of Articles105 and 194

5
AIR1993SC412

8
 - Speakers/Chairmen under 10th Schedule exercise power of Tribunal to adjudicate
rights and obligations of elected members and their decisions amenable to judicial
review
- judicial review does not cover any stage prior to making decisions by Presiding
Officers
- interlocutory interference can be made when interlocutory disqualifications or
suspension
may have grave, immediate and irreversible repercussion and consequence -
concept of statutory finality of decisions of Presiding Officers in Para 6 (2)
does not affect right of judicial review under Articles 136, 226 and 227 based
on violation of constitutional mandates, mala fides, non-compliance with Rules
of natural justice and perversity
- deeming provision in Para 6 (2) would attract immunity analogous to that of Articles
122 (1) and 212 (1) as explained in Kesav Singh's case. 6

Relevant Paragraphs

Fifty-Second Amendment) Act, 1985, in so far as it

seeks to introduce the Tenth Schedule is destructive of the basic structure of
the constitution as it is violative of the fundamental principles of
Parliamentary democracy, a basic feature of the Indian constitutionalism and
is destructive of the freedom of speech, right to dissent and freedom of
conscience as the provisions of the Tenth Schedule seek to penalise and
disqualify elected representatives for the exercise of these rights and
freedoms which are essential to the sustenance of the system of
Parliamentary democracy.

1. Constitutional law of the united State states that:-

2. 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.

6
AIR 1965 All 349, 1965 CriLJ 170

9
cooley on constitutional limitation 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.

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

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

10
exclusion of Paragraph 7, violate the basic structure of the Constitution in
they affect the democratic rights of elected Members and, therefore, of the
principles of Parliamentary democracy is unsound and is rejected.

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, noncompliance with
rules of natural justice and perversity.

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 Article 136, 226 and 227. The minority
opinion is that the effect of invalidity of para 7 of the Tenth Schedule is to invalidate the
entire Constitution (Fifty- Second Amendment) Act, 1985 which inserted the Tenth
Schedule since the President's assent to the bill without prior ratification by the State
Legislatures is non est.

11
Contentions Raised
The basic underlying contention of the petitioners was that every parliamentarian must have the right
to follow his own spirit and sense of judgment and not necessarily with the policy of his political
party. This according to the petitioners is deemed to be a fundamental principle of parliamentary
democracy, freedom of speech and the right to dissent and the freedom of conscience.

Hon’ble Justice Venkata Chaliah said that“in such areas of experimental legislation what is
constitutionally valid and what is constitutionally invalid is marked by a ‘hazy grey line’ and thus
there is no litmus test of constitutionality”7. The majority then went on to decide in favour of the
Constitutional validity saying that the Constitution is flexible to provide for the compulsions of the
changing times, that the freedom of speech of a member is not an absolute freedom and also that the
political party functions on the strength of shared beliefs, it being the cost of the label of the party
under which their representative has been elected that he must not vote against it.

The right of a parliamentarian is indeed not an absolute right and is thus subject to reasonable
restrictions. The right of a parliamentarian to the freedom of speech is provided for under the Article
105(2). This, as contended by Shri Sharma, arguing on the side of the petitioners, is places even above
the fundamental right as guaranteed under the Article 19(1)(a) of the Constitution. Political defections
in lure of power and money inducements is also clearly a corrupt practice, therefore not falling within
the immunity granted to a member of the house.

Another contention raised by counsel for petitioners, is that the distinction between ‘defection’ and
‘split’ in the Tenth Schedule is very minimal. The differences on which the distinction rests are indeed
an outrageous defiance of logic. Appreciating the argument of the counsel the Court has opined that
the rule for exemption of split is justified in terms that as much as 1/3rd members at the same time
cannot be driven dishonest intentions.

However, the arguments of the counsel sound more convincing than the ruling given by the court.
These provisions give blanket exemption to splits and mergers and frustrate the very purpose of Anti-
Defection law. They are dangerous as their abuse can be easily done. They are totally ill-conceived in
view of what has happened in the recent past, and illogical because under the Act, the greater the sin,
the greater is the immunity. In many a case, defections are effected by groups-big and small. It would
not be difficult to stage splits and mergers for ulterior motives.

The second major contention raised by the petitioners is that paragraph 7 in terms and in effect brings
about a change in the operation and effect of Articles 136, 226 and 227 thus attracting the clause (2)

7
MANU/SC/0101/1993.

12
of the Article 368 requiring ratification. The court subscribing toit has opined that the words of the
paragraph 7 are of wide import and leave no constructional options. The same idea is reinforced by
looking into the history of the defection law and the debates in the house which suggests that
paragraph 7 was introduced with the very purpose of barring jurisdiction. The court has differentiated
the present case from the cases of Shankari Prasad Singh Deo v. Union of India and State of Bihar
8
and Sajjan Singh v. State of Rajasthan 9 that were relied upon to urge that there is no attraction to the
clause (2) of the Article 368.

The petitioners also contended that the ‘finality clause’ which was under the para 6 of the Tenth
Schedule, excludes the court’s jurisdiction which was, in turn, rendering the speaker immune from
Judicial Review. In India the position is such that whatever authority decides disputes must be vested
with judicial authority. In the present case too, the power to decide disputed disqualification under
para 6(1) is pre-eminently a judicial complexion. In the present case, the majority has held that the
Speaker or the chairman under the para 6(1) of the Tenth Schedule is tribunal and that the finality
clause does not oust the jurisdiction of the courts under Articles. 136,226 and 227. Instead, the finality
clause just limits them.

Another contention raised before the court was that there is a violation of the basic feature as
independent adjudicatory machinery for resolution of electoral disputes is an essential incident of
democracy. The majority and minority have differed at this point with the majority asserting that there
is no violation of basic feature of Constitution keeping in mind the pivotal position of the Speaker in a
Parliamentary Democracy. The majority has extolled the position of a Speaker and thus rather
unconvincingly tried to justify its view saying that there is no violation of the basic structure of the
Constitution.

8
1952 SCR 89.
9
MANU/SC/0052/1964.

13
Violation of the Basic Structure

The contentions raised and urged in terms of the violation of the basic structure are:

1. Fundamental Principles of Parliamentary Democracy,

2. Freedom of Speech and
3. The right to dissent and the freedom of conscience.

The basic underlying contention is that every parliamentarian must have the right to follow
his own spirit and sense of judgment and not necessarily with the policy of his political party.
This according to the petitioners is deemed to be a fundamental principle of parliamentary
democracy, freedom of speech and the right to dissent and the freedom of conscience. The
learned counsels referred to several authorities to stress upon the same. In words of Edmund
Burke:

“.... 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.”10

In response to this the question deliberated upon by the court is that under such Constitutional
scheme would there be any immunity from the political evil of the act of defection in lure of
office and money inducement? Deliberating upon the same hon’ble Justice Venkatachaliah
has expressed that in such areas of experimental legislation what is constitutionally valid and
what is constitutionally invalid is marked by a ‘hazy gray line’ and thus there is no litmus test
of constitutionality. The majority then went on to decide in favor of the Constitutional
validity saying that the Constitution is flexible to provide for the compulsions of the changing
times, that the freedom of speech of a member is not an absolute freedom and also that the
political party functions on the strength of shared beliefs, it being the cost of the label of the
party under which the representative has been elected that he must not vote against it.

The right of a parliamentarian is indeed not an absolute right and is thus subject to reasonable
restrictions. The right of a parliamentarian to the freedom of speech is provided for under the

10
MANU/SC/0101/1993 para 14

14
Article 105(2). This as contended by Shri Sharma, arguing on the side of the petitioners, is
places even above the fundamental right as guaranteed under the Article 19(1)(a) of the
Constitution. However there are limitations that can be imposed upon the right. 11 The
abstention of such right as a result of the disqualification is a reasonable restriction in interest
of public morality. A restriction on their conscience franchise or abstention is reasonable in
the interest of public morality12. Morality is conformity to ideals of right human conduct. 8

Such a conduct is in the public interest and public interest requires that delegates, elected by
people because they follow a particular political philosophy must vacate such office on
renouncing that philosophy.

A suggestion to the fact that the immunities as under the Article 105(2) are not absolute in
nature is that the National Commission for review of the Constitution in its report submitted 9

in 2002 has in fact recommended that Article 105(2) ought to be amended:

“5.15.6. The Commission recommends that Article 105(2) may be amended to clarify that
the immunity enjoyed by the Members of Parliament under parliamentary privileges does
not cover corrupt acts committed by them in connection with their duties in the House or
otherwise. Article 194 (2) may also be similarly amended in relation to the Members of
State Legislatures.”

Political defections in lure of power and money inducements is also clearly a corrupt practice,
therefore not falling within the immunity granted to a member of the house.

Another contention raised by counsel for petitioners, Shri Ram Jethmalani is that the
distinction between ‘defection’ and ‘split’ in the Tenth Schedule is so thin and artificial that
the differences on which the distinction rests is indeed an outrageous defiance of logic.
Appreciating the argument of the counsel the Court has opined that the rule for exemption of

11
Justice P.K. Balasubramanyan, Parliamentary Privilege: Complementary Role of the Institutions, (2006) 2
SCC (Jour)

12
Mian Bashir Ahmed v. State of J&K, AIR 1982 J&K

15
split is justified in terms that as much as 1/3rd members at the same time cannot be driven
dishonest intentions. In words of hon’ble Justice Venkatachaliah:

“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-crosssing” 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’.”

However, the arguments of the counsel sound more convincing than the ruling given by the
court. These provisions give blanket exemption to splits and mergers and frustrate the very
purpose of Anti-Defection law. They are dangerous as their abuse can be easily done. They
are totally ill-conceived in view of what has happened in the recent past, and illogical because
under the Act, the greater the sin, the greater is the immunity. In many a case defections are
effected by groups-big and small. It would not be difficult to stage splits and mergers for
ulterior motives. In opinion of H.M. Seervai13:

“ …if a small number of MPs desert their party they become defectors; but if a large
number of members defect their party this grand scale desertion ceases to be desertion.
But ordinarily governments are not toppled by a small number of defections but by a
large number of members of a party leaving it and/or going over to the party to which
they have been opposed. This is the evil which must be eradicated in out country. For in
India it is very rare for the members of a party to leave it because of a conscientious
change in opinion. Defections in India usually take place because political interests are
sold for money or for promise of ministership or public office, and the defector may

13
Report of the National Commission to Review the Working of the Constitution (Vol. I, March 2002) p. 168

16
 defect again for some more money or promise of some more ministership or public office.
In short it is odious form of political corruption”.

It is amazing that law punishes small fry but not hawks. The classification into individuals
and groups has no intelligible differentia having a rational relation with the object of the law,
and is, therefore unconstitutional in view of Article 14 and void. The Act outlaws defection
by individual members but shuts eye to defections in garb of splits and mergers of groups of
members. The classification is prima facie irrational; it is undemocratic and ill-conceived.14

The minority judges held that there is a violation of the basic feature of the Constitution as
the Constitutional scheme for decisions on questions on 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 which are higher Constitutional functionaries.

The Election Commission having a similar opinion as that of the minority judges in the
present case suggested in recommendations made in 1977 that as in the case of other
disqualifications referred to in articles 102 and 191 of the constitution, the disqualification on
grounds of defection could also be referred to the Election Commission for tendering opinion
to the President or the Governor, as the case may be, and the President or the Governor shall
act on such opinion tendered by the Election Commission. 15

14
J. K. Mittal, Anti-Defection Act: Comment on its Constitutionality (1987) 3 SCC (Jour) 25 at 29

15
P. C. Jain, Chawla’s Elections Law and Practice (Bahri Brothers, Delhi, 8th edn. 2004) p. 1.704

17
 Ratification required under Article 368(2) and applicability of Doctrine of
Severability

The second major contention raised by the petitioners is that paragraph 7 in terms and in
effect brings about a change in the operation and effect of Articles 136, 226 and 227 thus
attracting the clause (2) of the Article 368 requiring ratification. The court subscribing to it
has opined that the words of the paragraph 7 are of wide import and leave no constructional
options. The same idea is reinforced by looking into the history of the defection law and the
debates in the house which suggests that paragraph 7 was introduced with the very purpose of
barring jurisdiction. The court has differentiated the present case from the cases of Shankari
Prasad Singh Deo v. Union of India and State of bihar16 and Sajjan Singh v. State of
Rajasthan17 that were relied upon to urge that there is no attraction to the clause (2) of the
Article 368 by stating:

“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.”

Therefore it was by majority held that the amendment in terms and in effect brings about
a change in the operation and effect of the Articles 136 and 226 and thus requires
ratification under the clause (2) of the Article 368.

The minority has reached to a similar conclusion by applying a similar logic to the cases
Sankari Prasad and Sajjan Singh. In view of the minority there two classes of cases, one with
the abridgement or extinction of the right and the second one with the restriction on remedy

16
1952 SCR 89

17
MANU/SC/0052/1964

18
for the enforcement of right. The two cases belong to the former category and the present
case falls in the latter category where the right still exists but at the same time the remedy has
been destroyed. This result in changes made to the Articles 136, 226 and 227 thus attracting
clause (2) Article 368.

The argument, as raised by Shri Sibal that a provision which seeks to exclude the jurisdiction
of the court must be strictly construed and thus the para 7 bars the interference of the court
only in terms of interlocutory intervention does not hold as such construction in the present
case is not possible. Such a construction is not possible as the intention of the legislature in
introducing the para 7 of the Tenth Schedule is very clear that is to completely oust the power
of the court to interfere in the decision making process of the speaker and in light of the para
6 giving finality to the speaker’s decision even after the decision has been made.

The next question in consideration before the majority and minority, after having decided
unanimously that the para 7 requires ratification and thus stands constitutionally invalid is
that whether the Tenth Schedule severed from the para 7 stands constitutionally valid or not?

In opinion of the minority the effect of the absence of ratification is such that the Constitution
would not stand amended. In words of hon’nble Justice J. S. Verma:

“..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.”

19
Doctrine of Severability:

It was held in the case of R.M.D. Chamarbaugwalla v. Union of India,18 the Hon’ble
Supreme Court has observed:

“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.”

The doctrine of severability has been applied by the Supreme Court in several landmark cases
striking down the offending part of the amendment and upholding the rest. However, the
question that comes into picture and the one that is addressed by the majority in the present
case is whether there is anything compelling in the proviso to the Article 368(2) requiring it
to be construed in such a manner as to exclude the doctrine of severability?

The court responding to this has asserted that as a settled principle of statutory construction a
proviso can have no repercussion on the interpretation of the main enactment.

The general rule as has been stated by Hidayatullah, J., in the following words:

“As a general rule, a proviso is added to an enactment to qualify or create an exception

as to what is in the enactment, and ordinarily, a proviso is not interpreted as to stating a
general rule.”19

18
1957 SCR 930 at 940

19
Shah Bhojraj Kuverji Oil Mills and Ginning factory v. Subash Chandra Yograj Sinha, AIR 1961 SC 1596 at
1690

20
Except as to the cases dealt with by it, a proviso has no repercussion on the interpretation of
the enacting portion of the section so as to exclude something by implication which is
embraced by clear words in the enactment.

In West Durby Union v. Metropolitan Life Assurance Co.20 Lord Watson said:

“I am perfectly clear that if the language of an enacting part of the statute does not
contain the provisions which are said to occur in it, you cannot derive these provisions by
any sort of implication from the proviso.”

Thus the proviso as to the Article 368(2) cannot be construed in manner that it does not allow
the applicability of the Doctrine of severability.

It was thus held by majority:

“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. , 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……….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.”

20
[1897] A.C. 647 at p.652 cited from S. G. G. Edgar, Craies on Statute Law, (Universal Publishing house, New
Delhi, seventh edn, 2002)

21
The view of the minority however stands to the contrary. As has already been stated that the
minority held that the Constitution has not been amended prima facie and thus stands as it
was before the Constitution (Fifty second amendment) Act 1985. According to the minority
there is no question of the applicability of the doctrine of severability as it cannot be applied
to a ‘still born’ legislation. The minority also adduced that para 7, in light of the
developments that resulted in the enactment of the amendment was supposed to be an integral
part of the amendment and thus cannot be severed from the rest of the Tenth Schedule.

22
 Restriction on Judicial Review

Another major contention on part of the petitioners is that the ‘finality clause’ as under the
para 6 of the Tenth Schedule excludes the court’s jurisdiction rendering the speaker immune
from Judicial Review.

In India the position is such that whatever authority decides disputes must be vested with
judicial authority. In the present case too the power to decide disputed disqualification under
para 6(1) is preeminently a judicial complexion. The majority in the present case has held that
the Speaker/chairman under the para 6(1) of the Tenth Schedule is Tribunal and that the
finality clause does not oust the jurisdiction of the courts under Arts. 136, 226 and 227 but
only limits it.

In words of Hon’ble Justice Venkatachaliah:

“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.”21

It was thus held that the para 6 of the Tenth Schedule does not introduce a non-justiciable
area. The power to resolve the disputes of the Speaker/Chairman is a judicial power. The
important construction is that of the ‘finality clause’ which paved a way for the majority to
reach the judgment.

21
MANU/SC/0101/1993 para 41

23
In view of the judgment and the various authorities provided to arrive upon the same, it can
be said that when under a statute an authority is give judicial power its power extends only to
the framework provided for within the statute and the authority simply following the
provisions has the power to decide. His decisions have ‘finality’ if they fall within the
purview of the provisions. To that extent the power of the courts of Judicial Review would be
restricted. However, if the decision is illogical in the terms of the provisions or is mala fide
then the same would be beyond the ambit of the judicial power granted to the authority and
would be subject to jurisdiction of the appropriate court. Thus even if the jurisdiction of the
civil courts is ousted, they have jurisdiction to examine the cases where the provisions of the
Act and rules framed there under have not been observed and order made by the authority is
purported order22 or the statutory authority has not acted in conformity with the fundamental
principles of natural justice or the decision is based on no evidence. 23 The reason is that the
order cannot be said to be ‘under the act’ and as such jurisdiction of civil courts is not
26

ousted.

In Radha Krishnan v. Ludhiana Municipality, the Supreme Court observed:

27

“A suit in Civil Court will always lie to question the order of a tribunal created by statute,
even if its order is, expressly or by necessary implication, made final, if the said tribunal
abuses its power or does not act under the provisions of the Act”

Another contention raised before the court was that there is a violation of the basic feature as
independent adjudicatory machinery for resolution of electoral disputes is an essential
incident of democracy. The majority and minority have differed at this point with the
majority asserting that there is no violation of basic feature of Constitution keeping in mind
the pivotal position of the Speaker in a Parliamentary Democracy. The Minority has asserted
that there is a violation of the basic structure on clear and unambiguous terms as there is no
independent body to adjudicate over an electoral dispute. The majority has extolled the
position of a Speaker and thus rather unconvincingly tried to justify its view saying that there
is no violation of the basic structure of the Constitution.

22
Union of India v. Tarachand Gupta, AIR 1971 SC 1958 cited from J. J. R. Upadhaya, Administrative Law

23
Kaushaliya Devi v. Bachittar Singh, AIR 1960 SC 1168 cited from J. J. R. Upadhaya, Administrative Law

24
Judgment
It was held by the minority judges held that the basic feature of the Constitution has been
violated as the Constitutional scheme for decisions on questions on disqualification of
members after being duly elected, contemplates adjudication of such disputes by an
independent authority outside the House, namely President or Governor in accordance with
the opinion of the Election Commission, all of which who high Constitutional functionaries
are.The Election Commission had a similar opinion as that of the minority judges in the
present case. In the year 1977, it made recommendations and suggested that the
disqualification on grounds of defection could also be referred to the Election Commission
for tendering opinion to the President or the Governor, as the case may be,and the President
or the Governor shall act on such opinion tendered by the Election Commission, as it was in
the case of other disqualifications referred to in articles 102 and 191 of the constitution.

It was thus held that the para 6 of the Tenth Schedule does not introduce a non-justiciable
area. The power to resolve the disputes of the Speaker/Chairman is a judicial power. The
important construction is that of the ‘finality clause’ which paved a way for the majority to
reach the judgment.

The law which has succeeded in preventing individual defections must also prevent mass
defections. The role of the speaker also has to be called in question. The speaker depends on
the majority in the legislature for his tenure. Therefore, he does not satisfy the requirement of
an ‘individual adjudicatory body’. This situation can be rectified and the Anti-Defection law
made more effective if adjudicatory function is rested in the Election Commission.

On the lines of Articles 102 and 192, the president in case of the parliament and the governor
in the case of state. legislature, may refer the matter to the Election Commission. This seems
to be the only way to avoid the politically motivated decisions of the speakers. If the
government wants to continue the present system, then the Supreme Court has to assume
much broader power in terms of judicial review over the Speaker’s decision under the Anti-
defection law than what the Supreme Court is prepared to do at present under the formulation
in Kihota Hollohon. One aspect of the Anti-defection law needs to be pointed out. Before the
commencement of the Tenth schedule a ‘political party’ was never recognized under the
Constitution but now their existence is acknowledged under the Anti-defection law.

25
Subsequent developments and Conclusion

The purpose underlying the Anti-Defection Law is to curb defections, at the same time not to
come in the way of democratic realignment of parties in the House by merger of two or more
party’s or a split in a party. The Anti-Defection law when passed was a bold step in the
Indian scenario but now with the passage of time certain loop holes seem to have emerged in
the law much compromising in its effectiveness. The truth of the matter is that the law has not
been able to prevent defections in Toto.

While individual defections may have been discouraged, mass defections lie beyond the pale
of law. Another difficulty in the implementation of the law is that often the speakers have not
always exercised their power to determine whether a person is liable for the act of defection.
He reason for this malady was rightly diagnosed by the minority Judges in the case (Kihota)
that the speaker depends continuously on the majority support of the house, therefore if a
member defects from a smaller party to a bigger party, the Speaker belongs to the bigger
party, an impartial adjudication on the defecting members’ disqualification becomes
extremely improbable. There has been a suspicion in the public mind that the power is at
times exercised by the Speaker keeping in mind the political expediency. The majority judges
placed the Speaker on a high pedestal but that does not really accord with the real facts of the
political life of India.

Recently the Supreme Court has considered a very important question. 24 A person set up by a
political party as a candidate gets elected to the house of Legislature and thereafter expelled
by the party for any reason. He thus becomes an ‘unattached’ member. I thereafter he joins
another political party, will he incur disqualification under the Tenth Schedule. The Supreme
Court has answered the question in affirmative. The same yardstick is to be applied to a
person who has independently been elected.

It seems like the Anti-defection law has stirred up more controversies than it has been able to
solve. For example, the Meghalaya Speaker suspended the voting rights of five independent
members before the house was due to take up no confidence motion against the government.

24
G. Vishwanathan v. Speaker, T.N. Legislative Assembly, AIR 1996 SC 1060

26
Later the speaker dismissed the voting rights of another five members of the opposition
parties, ignoring the stay order as passed by the Supreme Court.

Defections have become an endemic in Goa so much so that the Speaker Barbosa himself led
a group of seven legislators going out of the ruling party so as to himself become the Chief
Minister of the state. Thus the speaker himself had defected.25

The unsavory incidents that have occurred in the wake of the Anti defection law show that
there is a need to review the law as there are several lacunae in it. While there is a need to
have a law to root out the malady of political defections from the Indian polity, there is also a
need to endure that the question of disqualification is decided objectively, without any
political considerations. It should be clearly laid down that the decision maker would be
subject to the ultimate control of the Supreme Court. Law must be made certain in a lot more
areas.

Another important question to decide is whether the power to disqualify should continue to
rest in the speakers who have in the past abused the same, thus defying the heavy reliance of
the majority Judges in the case. In terms of the situation faced on the present day the decision
making authority should be placed as was suggested by the minority Judges, in favor of the
basic structure of the Constitution in some independent body.

Some sort of Judicial review is also called for the decision making process because it has
been proved in many circumstances again and again a speaker is more of a political creature.

It is also being argued that the law which has succeeded in preventing individual defections
must also prevent mass defections. The role of the speaker also has to be called in question.
As mentioned in the minority view in Kihota Hollohon, the speaker depends for his tenure on
the majority in the legislature. He does not satisfy the requirement of an ‘individual
adjudicatory body’. Subsequent event in the various legislatures have proved these assertions
of the minority judges right. The high ethical standard which was setup by the majority
judges in the case is seldom reached by the Speakers in India.

25
M.P. Jain, Indian Constitutional Law( Wadhwa publishers, Nagpur, 5th edn. 2005)

27
This situation can be rectified and the Anti-Defection law made more effective, if
adjudicatory function is rested in the Election Commission. On the lines of Articles 102 and
192, the president in case of the parliament and the governor in the case of state legislature,
may refer the matter to the Election Commission. This seems to be the only way to avoid the
politically motivated decisions of the speakers.

If the present system is to continue then the Supreme Court has to assume much broader
power in terms of judicial review over the Speaker’s decision under the Anti-defection law
that what the Supreme Court is prepared to do at present under the formulation in Kihota
Hollohon.

One aspect of the Anti-defection law needs to be pointed out. Before the commencement of
the Tenth schedule a ‘political party’ was never recognized under the Constitution but now
their existence is acknowledged under the Anti-defection law.

28
Bibliography

Books

Constitution of India (Bare Act)

Basu, D.D. Constitutional Law of India, New Delhi

Jain, M.P. Constitutional law of India

Shukla,V.N The Constitution of India

Seeravi, H.M A critical commentary on constitutional law of India

Websites

Manupatra.com

Scconline.com

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