PUNJAB AND HARYANA HIGH COURT

                                              Parkash Singh Badal

                                                         Vs

                                                 Union of India

                                    Civil Writ Petition No. 3435 of 1986

             (H.N. Seth, C.J., D.S. Tewatia, R.N. Mittal, S.P. Goyal and J.V. Gupta, JJ.)

                                                   01.05.1987

                                                  JUDGMENT

S.P. Goyal, J.

1. These three petitions (Civil Writ Petitions Nos. 3065, 3268 and 3435 of 1986), which are
based on identical facts and involve common questions of law, have been filed for quashing the
notice dated June 13, 1986, a copy of one of which is attached as Annexure P-6, issued to the
petitioners by respondent No. 6, the Speaker of the Punjab Vidhan Sabha, requiring them to show
cause as to why they be not disqualified from the membership of the Punjab Legislative
Assembly in terms of Article 191(2) read with paragraphs 2 and 6 of the Tenth Schedule of the
Constitution of India and his order, dated July 4, 1986 (Annexure P-8) rejecting the application
(Annexure P-7) of Capt. Amrinder Singh, M.L.A., wherein he claimed to be recognized as the
leader of the 27 M.L.As, who were stated to have formed a separate legislative party because of
the alleged split in the Shiromani Akali Dal. The attack is two prone. First, that the Constitution
(Fifty-Second Amendment) Act, 1985 is ultra vires of the powers of the Parliament. Second, that
an appropriate order having already been passed by the Speaker under paragraph 6 of the Tenth
Schedule to the Constitution, its successor had no jurisdiction to ignore that order and issue the
impugned notices for a fresh decision. Before embarking upon the critical examination of the
many facet contentions of the learned counsel for the parties, it is essential to notice, in short, the
facts and the pleas contained in their pleadings.

2. The petitioners aver that in the wake of the armed police attack on the holy precincts of Sri
Harmandir Sahib (Golden Temple, Amritsar), on April 30, 1986, which was widely resented in
the rank and file of Shiromani Akali Dal, a majority of the functionaries of the party, its office
bearers and district Jathedars resigned from their posts; Sarvshri Parkash Singh Badal and
Gurcharan Singh Tohra resigned on May 1, 1986 from the membership of the working
committee and the party led by respondent No. 7 Shri Surjit Singh Barnala, the Chief Minister;
two of the petitioners (Nos. 2 and 23) resigned from their Posts of the cabinet ministers and along
with Sarvshri Surjan Singh Thekedar and Manjit Singh, the Vice President and the General
Secretary, respectively, of the party, repudiated the leadership of respondent No. 7; and petitioner
Nos. 19 and 20 relinquished the posts of District Presidents of Gurdaspur and Ludhiana units of
the Shiromani Akali Dal. Thus, there occurred a split in the Shiromani Akali Dal and a separate
political party also known as Shiromani Akali Dal (Badal) consisting of the above-mentioned
and other leaders and district Jathedars was formed and Shri Surjan Singh Thekedar was
appointed as its Acting President and Shri Manjit Singh as General Secretary. As a result thereof,
27 M.L.As. including the 25 petitioners in the three petitions of the Shiromani Akali Dal (L)
Legislature Party sent a letter on May 7, 1986 (Pony Annexure P-1) to then Speaker that they had
decided to form a separate legislative group and be recognized as such and allotted separate
seats, in the Punjab Vidhan Sabha. The Speaker after getting declaration from each of the
signatories and having satisfied of the claim made in the said letter, recognized them as members
of the separate political party and ordered the allotment of separate seats to them in the Vidhan
Sabha. A copy of the said order, dated May 8, 1986 passed by the Speaker has been produced
with the petition as Annexure P-3.

3. The Deputy Speaker Shri Nirmal Singh Kahlon was taken as minister in the cabinet on May 6,
1986 and the Speaker resigned from his office on May 27, 1986. The Governor of Punjab,
therefore, summoned the Vidhan Sabha to meet on June 2, 1986 to elect the Speaker and the
Deputy Speaker and to transact the other business. The newly formed group set up Shri Arjan
Singh Litt and Dr. S. S. Mohi for the offices of the Speaker and the Deputy Speaker, respectively
and a whip to vote for them was issued to the members of this group by Shri Amrinder Singh.
Shri Surjit Singh Minhas, respondent No. 6 and Shri Jaswant Singh contested the offices of the
Speaker and the Deputy Speaker as candidates of the original Shiromani Akali Dal and a whip
was issued by respondent No. 7 to its members to vote for them. The candidates set up by the
Shiromani Akali Dal headed by Shri Surjit Singh Barnala were elected as the Speaker and the
Deputy Speaker securing 46 votes each even though the total strength of the Shiromani Akali
Dal Legislature Party was 73 because the votes of the breakaway group were polled in favour of
the candidates set up by the latter. Shri Surjit Singh Barnala, therefore, filed a petition under
Article 191(2) read with paragraphs 2 and 6 of the Tenth Schedule for declaring Shri Parkash
Singh Badal and 22 other members, who had violated the whip issued by him, as disqualified
from being members of the Punjab Vidhan Sabha. The Speaker thereupon issued a show cause
notice (Annexure P-6) to each of the said members, which led to the filing of the present petition.

4. Separate written statements were filed by respondents Nos. 6 and 7. In the written statement
filed by respondent No. 6, several legal objections were taken against the maintainability of the
petition and the issuance of the notices and the order Annexure P-8 were claimed to be in
accordance with law whereas the order of his predecessor was stated to be without jurisdiction. In
the written statement filed by respondent No. 7, apart from taking certain legal pleas by way of
preliminary objections, the averments regarding the public reaction because of the police entry in
the Golden Temple Complex and the resultant split in the Shiromani Akali Dal were denied. It
was further averred that it was for the first time on June 30, 1986 that a news item appeared in
the 'Tribune' indicating that the breakaway group was contemplating to call a session of the
delegates to elect a new President; and that in spite thereof, the petitioners have not averred even
in the present petition that they had quit the Shiromani Akali Dal or had formed any new political
party and become its members.

5. The vires of the Amendment Act was challenged by Shri Shanti Bhushan, the learned counsel
for the petitioners, on the ground that it has eroded the basic structure of the Constitution in three
ways namely that clause (b) of paragraph 2 is destructive of the parliamentary democracy and the
federal structure, the two basic features and paragraphs 6 and 7 of the power of judicial review of
the High Court and the Supreme Court under Articles 226, 32 and 136 of the Constitution. By
way of corollary to the destructive character of paragraphs 6 and 7 of the basic feature of judicial
review, it was contended that as the said provisions have sought to make changes in Chapter IV
of Part V and Chapter V of Part VI, which contain Articles 136 and 226, the Bill required
ratification by the Legislatures of not less than one-half of the States as envisaged by proviso to
Article 368(2) of the Constitution and the same having been not done, the entire act was still-
born and invalid.

6. The contention pertaining to the requirement of ratification of the Amendment Act may be
examined at the outset because if it prevails, it would obviate the necessity of going into other
grounds of challenge to the constitutional validity of the impugned Act. However, for the
disposal of this contention, the scope of paragraphs 6 and 7 of the Amendment Act has to be
determined vis-a-vis the power of judicial review of the High Court and the Supreme Court
under Articles 226, 32 and 136. Sub-clause (1) of paragraph 6 which only is relevant on this
matter provides that if any question arises as to whether a member of a House has become
subject to disqualification under the Tenth 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. Paragraph 7 lays down that notwithstanding anything contained in the Constitution,
no Court shall have jurisdiction in respect of any matter connected with the disqualification of a
member of a House under the Tenth Schedule. So far as the provision contained in paragraph 6
(1) is concerned, the contention raised by the learned counsel for the petitioners was that by
making the decision of the Speaker final, the jurisdiction of the High Court under Article 226 and
of the Supreme Court under Article 136 stands excluded. Shri G. Ramaswamy, the learned
Additional Solicitor General of India, did not dispute the stand taken by Shri Shanti Bhushan, but
took another extreme stand that the power of judicial review was confined to the question of
constitutionality of the statutes and it does not cover in its purview the power to review the orders
of the constitutional functionaries or other authorities under the statutes and that the Parliament is
fully competent to enact a provision declaring such orders beyond the power of judicial review of
the High Court or the Supreme Court. In support of his cotention, he relied on the following
passage from the decision of the Supreme Court in Brundaban Nayak v. Election Commission of
India and another1,

Para 13 :

        "Then as to the argument based on the words "the question shall be referred for the
        decision of the Governor", these words do not import the assumption that any other
        authority has to receive the complaint and after a prima facie and initial investigation
        about the complaint, send it on or refer it to the Governor for his decision. These words
        merely emphasise that any question of the type contemplated by clause (1) of Article 192
        shall be decided by the Governor and Governor alone; no other authority can decide it,
        nor can the decision of the said question as such fall within the jurisdiction of the Courts.
        That is the significance of the words "shall be referred for the decision of the Governor".
        * * * * * * * * * * *".

No such proposition as is canvassed by the learned counsel, in my view, can be inferred from the
observations noticed above. In the case before the Supreme Court, the controversy involved was
as to whether it was the Speaker before whom, in the first instance, the complaint was to be made
and thereafter it was he who was to make a reference to the Governor in terms of Article 192 of
the Constitution after having satisfied that the member had incurred the disqualification
mentioned in the complaint. The answer was given in the negative and while so doing, it was
observed that it was the Governor alone and no other authority who was competent to decide the
question of disqualification of a member under Article 192. There was, thus, no question before
the Supreme Court as to whether the decision given by the Governor under Article 192 was open
to judicial review by the High Court or the Supreme Court or not. By the observations made
above, the Supreme Court obviously meant to rule that the question as to whether a member of
the Legislature has become subject to any disqualification mentioned in clause (1) or Article 191
could be decided only by the Governor and no Court was competent to take cognizance of it.

7. The use of the word "final" qua any order passed by any authority under a provision of the
Constitution or other statutes has always been understood to imply that no appeal, revision or
review lies against that order and not that it over-rides the power of judicial review either of the
High Court or the Supreme Court under Article 226 or Article 136 of the Constitution. It is not
necessary to dilate on this matter any further as it stands settled authoritatively by a judgment of
the Supreme Court in Union of India v. Jyoti Parkash2 , wherein the provisions of Article 217(3)
which provide that if any question arises as to the age of a Judge of High Court, the question
shall be decided by the President after consultation with the Chief Justice of India and the
decision of the President shall be final, came under consideration and the import of the word
"final" was enunciated thus :-

Para 31 :

        "* * * * *.

        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
        President's judgment was coloured by the advice or representation made by the executive
        or it was founded on no evidence. But this Court will not sit in appeal over the judgment
        of the President, nor will the Courts determine the weight which should be attached to the
        evidence.

        Appreciation of evidence is entirely left to the President and it is not for the Courts to hold
        that on the evidence placed before the President on which the conclusion is founded, if
        they were called upon to decide the case they would have reached some other
        conclusion."

I am, therefore, of the considered view that the provisions of paragraph 6(1) do not have the
effect of excluding the jurisdiction of the High Court under Article 226 or of the Supreme Court
under Article 136 of the Constitution.
8. As regards the provision contained in paragraph 7, did not dispute Shri G. Ramaswamy, that it
has the effect of the exclusion of the jurisdiction of the High Court and the Supreme Court under
Articles 226 and 136 respectively in respect of any matter connected with the disqualification of
a member of a House, but contended that in spite thereof the Bill did not require any ratification
as canvassed by Shri Shanti Bhushan. This reasons advanced for this view shall be noticed later
as it would be proper to deal with the contentions raised by Shri D. D. Thakur prior thereto, who
took the stand that the provision of the said para does not exclude the power of judicial review of
the High Court or the Supreme Court so far as the order of the Speaker was concerned. The
argument put forward by him was twofold. First, that the word "jurisdiction" as held by the
Supreme Court in Ujjam Bai v. State of Uttar Pradesh and another3 , means the authority to
decide and, as such, the bar contained in this paragraph only relates to the primary decision and
not its review by the High Court or the Supreme Court. Second, that the words "any matter"
would not include the order of the Speaker. I regret my inability to subscribe to this view. If
paragraph 7 is interpreted in the manner suggested by Shri Thakur, then the provision contained
therein would be rendered wholly superfluous because the jurisdiction to decide, in the first
instance, has been exclusively vested in the Speaker and his order has also been made final,
which necessarily means that no Court would have the jurisdiction to take cognizance of any
question relating to the disqualification of a member of a House under the Tenth Schedule.
Moreover, if the intention was not to exclude the jurisdiction of the High Court and the Supreme
Court under Article 226 or Article 136, there was no necessity to incorporate the non obstante
clause, that is, "notwith-standing anything contained in the Constitution", in this paragraph.
Under the Constitution, it is only the High Court and the Supreme Court which have the
jurisdiction to issue writs and review the decisions of the Courts and Tribunals subordinate to
them. Obviously the incorporation of the non obstante clause, therefore, was meant to exclude
the jurisdiction of the High Court and the Supreme Court and if that is so the word "matter" has
to be necessarily understood to include as well the order of the Speaker passed under paragraph
6. There is, thus, no escape from the conclusion that paragraph 7 has the effect of excluding the
jurisdiction of the Supreme Court as well as the High Court under Articles 136 and 226 in
respect of any matter connected with the disqualification of a member of a House under the said
Schedule.

9. Shri Ramaswamy put forward two reasons for his contention that the impugned Bill did not
require ratification. Firstly, he argued that the said proviso would not come into play unless the
proposed amendment seeks to make any change in Article 226 or Article 136 of the Constitution
itself. The argument though on the face of it quite attractive, yet loses all its lustre when critically
examined. If the words "if such amendment seeks to make any change in Chapter IV of Part V or
Chapter V of Part VI are interpreted in the manner suggested, it would enable the Parliament to
completely nullify the provisions of Articles 136 and 226 by making a provision in the statute
concerned excluding the jurisdiction of the Supreme Court and the High Court without making
any amendment in the articles. Secondly, it was contended that in pith and substance the Bill was
meant to prescribe an additional disqualification of a member of a House by effecting
amendments in Articles 101, 102, 191 and 192 and the indirect encroachment upon Articles 136
and 226 of the Constitution being incidental and insignificant, the Bill was not required to be
ratified before it was presented for assent to the President. Reliance for this proposition was
placed on Prafulla Kumar Mukherjee and others v. Bank of Commerce Ltd. Khulna4, Shankari
Prasad Singh Deo and others v. The Union of India and others5, and Sajjan Singh v. The State of
Rajasthan, AIR 1965 Supreme Court 845. In Prafulla Kumar Mukherjee's case (supra), the
question involved was as to whether the Bengal Money-lenders Act was ultra vires the Provincial
Legislature and its validity was upheld with the following observations :-

        "The pith and substance of the Act being money lending it comes within Schedule 7, List
        II, Item 27, Government of India, Act, and, therefore, is within the competence of the
        Provincial Legislature and is not rendered invalid because it incidentally trenches upon
        matters reserved to the Federal Legislature namely promissory notes and banking in
        Schedule 7, List I, Items 28 and 38, Government of India Act."

The pith and substance theory in the said case was, thus, invoked to find out the competence of
the Provincial Legislature in a situation where the Provincial and the Federal Lists overlapped
each other upon certain matters enumerated therein. This decision, therefore, cannot possibly
lend any support to the contention of the learned counsel.

10. In Shankari Prasad Singh Deo's case (supra), the Constitution (First Amendment) Act, 1951,
whereby Articles 31-A and 31-B were inserted in the Constitution, was under challenge and one
of the arguments advanced was that as the newly inserted Articles seek to make changes in
Articles 132 and 136 in Chapter IV of Part V and Article 226 in Chapter V of Part VI, they
require ratification under clause (b) of the proviso to Article 368 and not having been so ratified,
were void and unconstitutional. The contention was negatived in the following terms :-

        "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 31-A 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 31-B
        purports to validate certain specified Acts and Regulations already passed, which, but for
        such a provisions, 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 cases 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."

11. In Sajjan Singh's case (supra), the validity of the Constitution (17th Amendment) Act, 1.964,
was challenged on a similar ground that the requirements of the proviso to Article 368 were not
complied with. By the Amendment Act the Parliament sought to deny the right of challenge to
the Agrarian Reforms Acts on the ground of the violation of the fundamental rights contained in
Chapter III. Though the jurisdiction of the Supreme Court or the High Court was not directly
affected in any manner, yet it was contended that it has the effect of indirectly curtailing the
same. The contention was overruled with the following observations :-

        "It is true that as a result of the amendment of the fundamental rights, the area over which
        the powers prescribed by Article 226 would operate may be reduced, but apparently, the
        Constitution makers took the view that the diminution in the area over which the High
        Courts' powers under Article 226 operate, would not necessarily take the case under the
        proviso."

12. As a matter of fact, when the fundamental right itself is taken away, the question of
curtailment of the powers of the High Court or the Supreme Court as held in Shankari Prasad
Singh Deo's case (supra) does not arise because there would be no occasion thereafter for the
exercise of their powers in such cases. But all the same, support was also sought from the pith
and substance theory in Sajjan Singh's case (supra) for rejecting the contention that the
Constitution (17th Amendment) Act required ratification by one-half of the States as envisaged
by the said proviso. The observations in this regard read as under :-

        "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 socio-economic
        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. It is
        an Act the object of which is to amend the relevant articles in Part III which confer
        fundamental rights on citizens and as such it falls under the substantive part of Article 368
        and does not attract the provisions of clause (b) of the proviso. 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. But in the
        present case, there is no occasion to entertain or weigh the said considerations. Therefore,
        the main contention raised by the petitioners and the interveners against the validity of the
        impugned Act must be rejected."

13. The constitutional amendments, subject-matter of the said two Supreme Court decisions,
were obviously of a different nature and did not have any effect on the jurisdiction of the
Supreme Court or the High Court directly or indirectly because the right itself had been curtailed
or taken away. On the contrary, in the present case an additional disqualification has been
provided and the jurisdiction to decide any question relating to this matter has been vested in the
Speaker whose decision has been made final by enacting paragraph 7. The Speaker is seized of
the matter when a question is raised that any member has incurred the disqualification under the
Tenth Schedule. He is, therefore, required to give a decision on a disputed question involving a
very valuable right of an elected member of the Lok Sabha or the Vidhan Sabha. Obviously the
decision of the Speaker would be amenable to the jurisdiction of judicial review of the High
Court and the Supreme Court but for the provision contained in paragraph 7 in view of the
decision of the Supreme Court in Jyoti Parkash's case (supra) wherein it was held that the
President acting under Article 217(3) performs a judicial function of grave importance under the
scheme of the Constitution. The conclusion is, therefore, irresistible that by enacting paragraph 7
the powers of the Supreme Court and the High Court under Articles 136 and 226 respectively
have been directly affected and taken away so far as the disqualification of a member of the Lok
Sabha or the Vidhan Sabha under the Tenth Schedule is concerned.

14. As the amendment contained in paragraph 7 of the Tenth Schedule was not got ratified by
one-half of the States in terms of the proviso to clause (2) of Article 368, the same is held to be
ultra vires and unconstitutional.

15. The question which still remains to be determined is as to what would be the effect of the
paragraph 7 having been declared unconstitutional on the remaining provisions of the Fifty-
Second Amendment Act. Shri Shanti Bhushan, the learned counsel for the petitioners, argued
that the said paragraph being an integral part of the Amendment Act, the whole Act has to be
struck down. The answer to the question, however, does not depend on the fact whether the
provisions struck down is an integral part of the Amendment Act or not. What is to be seen is as
to whether the remaining portion of the Act would be workable without paragraph 7 or not. The
working of the remaining provisions of the Tenth Schedule is in no way dependant on paragraph
7. The purpose of the said provision is to lay down an additional disqualification and the
authority to determine the question if any member has incurred the disqualification or not is
named in paragraph 6. Even if the provisions of paragraph 7 are omitted, it would not affect the
working of the other provisions of the Tenth Schedule and the only effect would be that the order
of the Speaker would become amenable to the jurisdiction of the Supreme Court and the High
Court under Articles 136 and 226. Therefore, whole of the Amendment Act would not be liable
to be struck down because of paragraph 7 having been declared unconstitutional.

16. As noted above, the attack against the provisions of clause (b) of paragraph 2 is that its
provisions are destructive of the parliamentary democracy and the federal structure, the two basic
features of the Constitution So far as the federal structure of the Constitution is concerned, the
argument out forward by Shri Shanti Bhushan was that a directive can be issued by the President
of an all India party, say the Janta Party under the said provision to the party legislators in
Karnatka to support a Bill moved by Bhartiya Janta Party to adopt Hindi as the official language
of the State. The members would be bound to obey the direction or otherwise entail
disqualification. The provision thus results in the abdication of the functions of the duly elected
representatives of the people of the State in favour of an outside agency. The federal structure of
the Constitution means and implies that the areas of operation of the States and the Union
Government are defined under the Constitution and any law passed in transgression thereof by
the Parliament or the State Legislature is liable to be struck down as ultra vires of the
Constitution. It passes my comprehension as to in what manner the provisions of clause (b) of
paragraph 2 interfere with the federal structure of the Constitution. If the Bill moved by the
Bhartiya Janta Party member is adopted by the Legislature on the direction of the President of the
ruling party it can be said that the right of the members to vote according to their choice or
wisdom was interfered with. But by no stretch of reasoning it can be said that the area of
operation of the State Legislature was interfered with thereby. The contention raised, therefore,
appears to be devoid of any merit.
17. In view of the Full Court decisions of the Supreme Court in Keshwananda Bharti v. State of
Kerala6, and the Constitution Bench decision in Indira Gandhi v. Raj Narain7, it has been settled
beyond dispute that the democratic set up is one of the basic features of the Constitution. The
provisions of clause (b) are said to be destructive of the democratic set up inasmuch as it denies
the right of freedom of vote according to his wisdom and conscience to a member of the House
which is claimed to be the very essence of parliamentary form of democracy adopted by the
Indian Constitution. Besides referring us to the views of Herman Finer, Mr. K. C. Wheare and
Mr. Robert White, the learned counsel strongly relied on the comments of Mr. N. A. Palkhivala,
a eminent jurist of India in his book "Our Constitution Defaced and Defiled (1974 Ed.)" and the
observations of Lord Shaw of Dunfermline in Amalgamated Society of Railway Servants v.
Osborne8, Shorn of details, observations of Lord; relied upon read thus :-

        "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.

        *****

        *****

        It would be superfluous to note in detail how deeply embedded this principle as in the law
        of England on the subject of the parliamentary government. On the subject of the
        predominating consideration Coke remarks (4 Inst. 14).... And it is to be observed though
        one be chosen for one particular country or brought, yet when he is returned and sits in
        Parliament he serveth for the whole realm."

        *****

        *****

        It is no doubt true, my Lords, that the public records and the Statute Book show that the
        protections which were thrown around freedom were largely in the shape of securing the
        safety of electors and constituencies in the exercise, without interruption, constraint, or
        corruption, of the franchises they enjoyed. But all this would have been a mockery if,
        after purity and freedom had been enjoined amongst electors and constituencies, the
        representative so elected was not himself to be in the possession of his freedom in vote,
        advice, and action - not to be free, but to be bound, bound under a contract, to submit
        these, for salary and at peril of loss, to the judgment of others.

        *****
        *****

        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.

        *****

        *****

        In brief, my opinion according is; The proposed additional rule of the society that "all
        candidates shall sign and respect the conditions of the labour party, and be subject to their
        'whip', the rule that candidates are to be "responsible to and paid by the society," and, in
        particular, the provision in the constitution of the labour party that "candidates and
        members must accept this constitution, and agree to abide by the decision of the
        parliamentary party in carrying out the aims of this constitution", are all fundamentally
        illegal, because they are in violation of that sound public policy which is essential to the
        working of representative government.

        *****

        *****

        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 organisation 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.

        ******

        * * * *."

18. Mr. Palkhivala denounced the measures to prevent defection which was under consideration
of the Parliament then in the following terms -

        "No greater insult can be imagined to members of Parliament and the State legislatures
        than to tell them that once they become members of a political party, apart from any
        question of the party constitution and any disciplinary action the party may choose to
        take, the Constitution of India itself expects them to have no right to form judgment and
        no liberty to think for themselves, but they must become soulless and conscienceless
        entities who would be driven by their political party in whichever direction the party
        chooses to push them. * * *".

19. In Osborne's case (supra), Amalgamated Society of Railway Servants, a Society registered
under the Trade Union Act, framed a rule authorising it to levy contribution from members for
the purpose of securing parliamentary representation. Another rule provided that all candidates to
be financed by the Society shall sign and accept conditions of the Labour Party and be subject to
their whip. The judgment of the Court of Appeal striking down the said rule was affirmed by the
Earl of Halsbury and Lords Macnaghten and Atikinson on the ground that a rule which purports
to confer on any trade union registered under the Act of 1871 a power to levy contributions from
members for the purpose of securing parliamentary representation, whether it be an original rule
of the union or a rule subsequently introduced by amendment, is ultra vires and illegal and by
Lord James of Hereform because one of the rules in question would bind a member of
Parliament to answer the whip of the Labour Party. It was only Lord Shaw of Dunfermline who
affirmed the decision on the constitutional ground that certain rules of the Society were
fundamentally illegal, being in violation of that sound public policy which is essential to the
working of a representatiive government as is evident from the following passage in the
judgment :-

        "It is in these circumstances, my Lords that I find myself compelled to consider this
        appeal upon the other ground taken, involving an examination of the conditions which
        accompany the payment under the Constitution of the Labour Party, namely the ground
        that the contributions are to be devoted to the payment of members of Parliament who
        accept the same under obligations inconsistent with our parliamentary constitution and
        contrary to public policy. As, however, my Lords, I stand alone in this course and as
        accordingly my view would not be considered as entering into the ratio of the judgment of
        your Lordships' House as a whole, I shall content myself with a brief statement."

The observations of Lord Shaw were in the nature of an obitor dicta as the primary question
before the Court was the validity of the rule empowering the levy of contribution from members
for the purpose of securing parliamentary representation and the same was struck down being
beyond the scope of the activity of the Society. Otherwise also the views expressed by Lord
Shaw have to be understood in the context in which those were made. The validity of the levy in
the alternative was challenged on the ground that a candidate after election would not be bound
by any undertaking or a contract imposing a mandate on his conduct as a member of the
Parliament for pecuniary considerations. It was on this aspect of the matter that Lord Shaw made
the above quoted observations. A contract or undertaking to bind himself to the mandate of any
society in consideration of pecuniary help in the contest of election would certainly be void being
against the public policy because the vote of a member of the House cannot be purchased or sold
for pecuniary consideration. The point thus being entirely different in Osborne's case (supra), the
observations made by Lord Shaw would provide no guidance to judge the validity of
constitutional provision providing disqualification of a member of the House and as such reliance
on those observations was wholly misplaced.

20. The views expressed by Mr. Palkhivala and noticed above deserve due consideration, he
being a jurist of undisputed eminence, but it is difficult to subscribe to his views in the face of the
report of the Committee constituted by the Parliament which consisted of men of no less
eminence as jurists and political thinkers. The said Committee had amongst its members the
Union Law Minister, Sarvshri H. N. Kunzru, C.K. Daphtary, M. C. Satalvad and Mohan
Kumaramangalam and the leading political thinkers belonging to the various political parties
such as Professor N. G. Ranga, N. C. Chatterjee, Madhu Limaye and Bhupesh Gupta and so on
and so forth. On the question of legal and constitutional remedies against defection, the
Committee had recommended as under :-

        "Rendering a defector liable to incurring disqualification :-

        Articles 102(1)(e) and 191(1)(e) of the Constitution empower Parliament to make a law
        providing for disqualification a person for being chosen as, and for being, a member of
        either House of Parliament or of the State Legislative Assembly or Legislative Council.
        As standing for election to Parliament or State Legislatures is only a statutory as
        distinguished from a fundamental right, it is open to Parliament to impose such
        restrictions or conditions on the exercise and enjoyment of that right as it considers
        necessary or reasonable in public interest. On that basis, it is possible to provide in a
        special legislation that a legislator who renounces the membership of or repudiates his
        allegiance to a political party shall be disqualified from continuing as a member of
        Parliament/State Legislature. He will nevertheless, be free to stand for election again if he
        so wishes, and to sit as a member in case he gets elected. Where, however, a legislator
        defects for a pecuniary advantage or for an office of profit an element of aggravation
        enters into his action which, we feel, has to be visited with greater severity. This may be
        done by providing that in addition to being disqualified from continuing as a member of
        Parliament/State Legislature, he will also be disqualified from being chosen as a member
        of Parliament/State Legislature for a particular period. In this context, we consider the
        term "office of profit" as used in article 102 and 191 to be inclusive of ministership (as is
        evident from the explanation contained in clause (2) of that article); hence, defection for
        the sake of ministership can, without difficulty, be brought under the aggravated
        category."

        "If any person who has been elected as a member of either House of Parliament or of the
        Legislative Assembly or Legislative Council of a State and who was allotted the reserved
        symbol of any political party in respect of such election renounces (whether by words,
        conduct or in any other manner) after the said election allegiance to, or association with,
        such political party, he shall upon such renunciation, be disqualified for being a member
        of the House of Parliament, Legislative Assembly or Legislative Council to which he was
        so elected."

21. The ugency and the need of the law to prevent defections was accepted by all the political
parties implicitly and without reservation as is evident from the fact that the Bill was passed in
both the Houses of the Parliament without a single vote of dissent. Though there was some
difference of opinion between the learned counsel for the parties as to the true status of a member
of Parliament, i.e., whether he was a delegate of his political party or representative of the
constituents, but even if, it is accepted, as advocated by Mr. Shanti Bhushan that a member is
representative of the constituents, it would necessarily mean that the members of the House truly
represent the will of the people and in that sense Fifty-Second Amendment is deemed to have
been enacted with unanimous will of whole of the nation. How then a measure can be said to
have the effect of eroding parliamentary democracy.

22. There now remains to be considered the theoretical aspect of the matter as to how far the
member has absolute right of vote and whether it is essential feature of the parliamentary form of
democracy. The democracy in its broadest connotation means the rule by the majority. There are
various forms of Governments set up in different countries but all of them are claimed basically
to be democracy. Even the U.S.S.R. where one party system prevails claims itself to be a
democratic republic. India by the large had adopted democracy as prevalent in United Kingdom.
The Parliament consists of the elected members of the people which is the supreme Legislative
Body. It is now accepted at all hands that for the effecitive functioning of the Parliament and
governance of the country, political parties art not only a reality but indispensable. The existence
and importance of the political parties and the manner of functioning of democracy in India was
described thus in a recent decision by the Supreme Court in Kanhiya Lal Omar v. R.K. Trivedi
and others9, :-

        "It is true that till recently the Constitution did not expressly refer to the existence of
        political parties. But their existence is implicit in the nature of democratice form of
        Government which our country has adopted. The use of a symbol, be it a donkey or an
        elephant, dues give rise to an unifying effect amongst the people with a common political
        and economic programme and ultimately helps in the establishment of a Westiminister
        type of democracy which we have adopted with a Cabinet responsible to the elected
        representatives of the people who constitute the Lower House. The political parties have
        to be there if the present system of Government should succeed and the chasm dividing
        the political parties should be so profound that a change of administration would in fact be
        a revolution disguised under a constitutional procedure. It is no doubt a paradox that while
        the country as a whole yields to no other in its corporate sense of unity and continuity, the
        working parts of its political system are so organised on party basis in other words, "no
        systematized differences and unresolved conflicts." That is the essence of our system and
        it facilitates the setting up of a Government by the majority. Although till recently the
        Constitution had not expressly referred to the existence of political parties, by the
        amendments made to it by the Constitution (Fifty-Second Amendment) Act, 1985, there
        is now a clear recognition of the political parties by the Constitution. The Tenth Schedule
        to the Constitution which is added by the above Amending Act acknowledges the
        existence of political parties and sets out the circumstances when a member of Parliament
        or of the State Legislature would be deemed to have defected from his political party and
        would thereby be disqualified for being a member of the House concerned. Hence it is
        difficult to say that the reference to recognition, registration etc. of political parties by the
        Symbols Order is unauthorised and against the political system adopted by our country."

23. Political Parties exist because the people wish to see the Government of the country carried
on according to a particular policy. Where the Legislature is composed chiefly of independents or
a number of small parties, no government can be certain of support. The electors, therefore, do
not vote for a candidate but usually for a party with some exception here and there. The primary
consideration before the electors is as to which party is to be voted to power and not
independents. The party is voted to power not for carrying on the established system by
collection of revenue and drawing on the consolidated funds but to put into practice its avowed
policies on all matters of national concern and to translate into action the aspirations of the
electors of social and economic justice to the people at large. To elucidate how can it be achieved
and in what manner the Parliament functions and what is the importance of an individual
member of a political party, I can do no better than to quote what the modern writers have to say
in this regard. Professor Harold J. Laski in his book "Parliamentary Government in England" said
:-

        "What is the House of Commons for ? Until we are clear about its purposes, we cannot
        really understand its significance. After all to give supreme legislative power to a
        miscellaneous body of 615 men and women, mostly amateurs in politics, would not
        produce a successful legislative assembly. The secret lies in the way in which the House
        of Commons is organized and the ends for which that organization is applied. Above all,
        it is important to realize that the House of Commons is not an exact mirror of the interests
        and opinions of the nation. If it were, it could not possibly perform its work. For those
        opinions and interests are so various in their formidable complexity that any House which
        sought to find any effective place for a considerable number of them would be too atomic
        in character to be capable of coherent policy. The life of the House of Commons depends
        upon its representation only of such predominant strands of general public opinion as will,
        normally, enable a Government to be formed behind which there is an effective majority.
        Thereby that Government is able to inject a stream of continuous tendency into affairs.
        The business of making a Government and providing it, or refusing to provide it, with the
        formal authority for carrying on the public business is the pivotal function of the House of
        Commons upon which all other functions turn.

        It means, of course, that the life of the House of Commons is necessarily lived in terms of
        the party system. Parties are the basis upon which the organisation of the House for
        coherency is made possible; and the member of the House of Commons must, with very
        few exceptions, be a good party man if it is to do its work adequately. The philisopher in
        his study may repine at this necessity. He may insist that this involves the sacrifice of
        individual conscience to party allegiance. He may argue that it leads members blindly into
        the division-lobbies on matters about which they have not even heard the debates in the
        chamber. He may write angirly, for reasons I shall discuss later, about Cabinet dictation in
        the House. The facts are quite different from these closet abstractions. The number of
        times when an average member feels inclined to vote against his party, especially when it
        is in office, is pretty small; and the evidence seems to show that when the impulse as to
        vote is an urgent one, he obeys it. It is foolish to imagine that, in matters of debate, a
        member must make up his mind upon each, separate item the House decides. The House
        is a body for getting business done; the member's task is to be aware of large tendencies
        and to be on hand to support those the general direction of which he broadly approves. If
        he has so nice a conscience that a scrupulous examination of mostly technical minutias is
        the necessary preamble to his vote, the proper comment upon his attitude is that he is not
        by temperament suited to be a member of a legislative assembly."

Sir, Ivor Jennings in his book "Cabinet Government" observed :

        "The house of Commons is not composed of individual members, each of whom takes
        thought about the desirability of each proposal and votes accordingly. The House of
        Commons consists of parties. The Government, as a party authority, has control over one
        or more of them. It appoints 'whips' and pays many of them out of public funds. It is their
        function to see that the members of the party attend the House and support the
        Government. The Government's control over its majority is substantial. To vote against
        the Government is to vote against the party. To rebel against the Government is to leave
        the party.

        A successful candidate is almost invariably returned to Parliament not because of his
        personality nor because of his judgment and capacity, but because of his party label. A
        good candidate can secure a number of votes because he is good; a bad candidate can lose
        a few because he is bad. But his appeal is an appeal on his party's policy. He asks his
        constituents to support the fundamental ideas which his party accepts. His own
        electioneering is far less important than the impression which his party creates in the
        minds of the electors. They vote for or against the Government or for or against the party
        to which he belongs. The member of Parliament is thus returned to support a party."

Herman Finer, while discussing the views of John Stuart Mill opined thus :-

What is missing from this analysis ? The factor which today is of the most importance : the
political party. And much of the essay on Representative Government is stone-dead for the same
reason : the omission of political parties.

It is clear that discussion after the rise of parties must proceed upon entirely different lines, for
the whole relationship of the elector to the legislature has been altered. The parties have become
recognizable entities, secure of a large body of steady loyaly. These are the bodies which have
applied themselves to the task Mill ascribes to the constituents; they search out qualities among
men and ascertain the value of policies. They make or endorse the nominations. The caucus or
the primary nominates on the basis of party membership and party program. The constituents
expect the member to follow the instructions of the party whip. The party organization itself
disciplines the member. The old time discussion is, therefore, out of date." (Page 97, The Theory
and Practice of Modern Government).

24. With the tremendous growth of population and the development of human resources, the
horizon of governmental functions has also assumed enormous proportions. In order to fulfil the
promises made to the electors and to translate into action its avowed policy of economic and
social justice, the party in power has to undertake lot of legislative measures. If the leader of the
House is not sure of the support of the majority members of his party before hand and the matter
of voting is left to the individual choice of the party members at the floor of the House, it would
almost be impossible to get going with the heavy legislative work and may be that it fails to enact
any legislative measure of substance. To co-ordinate the functioning of the legislative party
effectively and efficiently whips are appointed not only to work as intermediaries between the
members and the Cabinet but they are also responsible to see that sufficient number of the party
legislators attend the House and are available to support the measure. If each member is allowed
the liberty to vote according to his own notion, the Government may not be able to enact any
measure because of the uncertainty it will create and the paucity of time and the very purpose of
the governmental set up would thereby be defeated resulting in complete chaos. For effective and
purposeful governance of the country, individual liberty and freedom of vote of legislators,
therefore, has to be regulated and curtailed in the large interest of the nation and the country.

25. My learned brother Tewatia, J. in his laborious and elucidating judgment has opined that
provisions of paragraph 2(b) as framed, would be destructive of the democratic set up inasmuch
as a member of the House is denied free right of speech and vote and has, therefore, suggested
the reading down of this provision to save it from the vice of unconstitutionality. For this opinion,
he has relied on various considerations, first of them being the intent and purpose of the
Parliament in the enactment of the Fifty-Second Amendment. To find out the intent and purpose
of the Parliament, it would be profitable to refer to the report of the Committee on Defections,
reproduced below, which led the Lok Sabha to pass unanimously a regulation to set up a High
Level Committee to consider the problem of defections :-

        "Following the Fourth General Election, in the short period between March, 1967 and
        February, 1968, the India 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 the 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 Councils of Ministers which
        they help 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."

The purpose in enacting the Fifty-Second Amendment, therefore, was not only to stabilise the
legally elected government and to prevent the political immorality and corruption, but also to
make them effective. If the provision is read down, as suggested, the main purpose of the
amendment would be defeated. The making of the government formed by the majority party
stable would serve no purpose if it is not able to work effectively and carry out the party's
policies on social and economic issues for which they are supposed to have been voted to power
by the electorates. The provision shall also fail to prevent the political immorality and corruption
because corruption is not confined only to the lure of ministerial berths or some other public
offices, but can also take place for other considerations. What would be the use of a member
remaining in the party if by joining hands in voting with the opposition he gets a prestigious
measure on the avowed economic policy of the party defeated on accepting considerations other
than the ministerial berth or public office.

26. Apart from the provisions of the Constitution, the Lok Sabha and the Ministry, in carrying
out their functions, have to observe a large number of unwritten conventions. There is no
provision in the Constitution which requires the President to appoint a leader of the majority
party as Prime Minister, or the one requiring the cabinet of the majority party to resign if a
money Bill sponsored by it is defeated. These matters obviously are guided by well-known
conventions. Similarly, it is a well established convention that if any important bill on policy
matter is defeated, the cabinet usually resigns. As noticed by Cecil S. Emden in his book "The
People and the Constitution", a convention has grown up, though it is not altogether of a rigid
character, for members to retire or to seek re-election, if they change their party allegiance or
their view regarding some vital political issue. Even in the eighteenth century, conscientious
scruples occasionally led members to resign their seats on altering their political tenets. So, by
the proposed amendment, whatever was expected to be achieved by convention, is sought to be
enforced by letter of law when conventions failed to achieve the desired results and the menace
of defections grew to such enormous proportions as to threaten the very existence of democratic
set up.

27. Apart from relying on the intent and purpose of the Fifty-Second Amendment, two more
reasons were advanced for reading down the provisions of clause (b) of paragraph 2; one that if
the member is only to endorse the decision taken outside the House by a political party, he would
be rendered simply a rubber-stamp having no volition of his own on the floor of the House and,
second, that the direction issue by the political party would be violative of the right of free speech
of the member guaranteed under Article 105 of the Constitution. I have already recorded my
reasons for the justification of the regulation and curtailment of the right of a member to vote on
the floor of the House. Apart from those reasons, before a Bill is moved by the party, it is
expected to have been discussed in the party forum where the members of the House also get full
chance to put up their view point. Once the party has taken a decision, the member is expected to
follow the party line in the House and support the Bill. If still he is unable to reconcile, he can
give up the seat to which he got elected on the party ticket and seek re-election. Instead, if the
course suggested by brother Tewatia, J. is adopted, it would lead to chaos and result in the
destruction of the democratic set up rather than strengthening it.

28. 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 Fifty-
Second Amendment. The provisions of paragraph 2(b) cannot, therefore, be termed as violative
of the provisions of Article 105 of the Constitution.

29. Yet, another argument, has been put forward that the House, at times, has to consider the
motion for impeaching high constitutional functionaries like President of India and Judges of the
Supreme Court, which involves exercise of judicial functions of considerable magnitude by the
House. In such matters, no whip can be or ought to be issued to its members. With respect, I fully
endorse the view expressed that possibly no whip ought to be issued to the members when the
House is to perform a Judicial function. Even if a whip is issued and a decision is taken as a
result thereof, such decision would be open to judicial review in the High Court or the Supreme
Court. So far as the election of the Speaker or the Deputy Speaker is concerned, it is of vital
importance to the party in majority as a hostile Speaker can create lot of problems for the
majority party to carry out its legislative programmes. Moreover, if a candidate set up by a
majority party is defeated, it is such an issue that the party would be morally bound to resign or
to seek a fresh mandate of the electorate to remain in power. The content, manner or mode of the
whip to be issued by any political party to its members and the way in which it is to be followed
and carried out by them, are all matters which are in the exclusive domain of the party and not
justiciable. The party concerned obviously would be guided in this regard by the political
sagacity and wisdom and the reaction which it might evoke amongst its own ranks or the public
at large. The fear that any member of the political party can be nominated as a whip even if he
may have no concern with the State or the Legislature is only imaginary because as stated by
Carl J. Friedrich in his book "Constitutional Government and Democracy", chief whip and the
whips are appointed from amongst the members of the House holding important offices.

30. Again, the principle of reading down a statute to save its constitutionality cannot reasonably
be involved in the present case.

When can the principle of reading down be invoked, was explained in the majority judgment in
Minerva Mills Ltd. and others v. Union of India and others10 thus :

        "The principle of reading down the provisions of a law for the purpose of saving it from a
        constitutional challenge is well-known. But we find it impossible to accept the contention
        of the learned counsel in this behalf because, to do so will involve a gross distortion of the
        principle of reading down, depriving that doctrine of its only or true rationale. When
        words of width are used inadvertently. The device of reading down is not to be resorted to
        in order to save the susceptibilities of the law makers, nor indeed to imagine a law of
        one's liking to have been passed. One must at least take the Parliament at its word when,
        especially, it undertakes a constitutional amendment."

So, the principle can be invoked only when the words of width are used by the legislature
inadvertently. In the present case, as discussed in detail above, it cannot be said by any stretch of
reasoning that the parliament had inadvertently used the words "any direction by the political
party" in paragraph 2(b). In fact, the provisions of paragraph 2(a) by itself would not have been
sufficient to effectively deal with the menace of defection and the provisions of paragraph 2(b),
which contain an independent clause, were very essential to achieve the purpose of the
Amendment Act. The observations of Bhagwati, J. (as he then was) from the same case, relied
upon by Tewatia, J. have to be understood in the context they were made. The question being
discussed was the extent of the finality attached to the satisfaction of the president as to the
existence of the grave emergency under Article 352(1) and it was ruled that the provisions of
clause (5) (a) of Article 352 would not override the power of judicial review of the High Court
and the Supreme Court; and if there was an allegation that the exercise of power by the President
was colourable inasmuch as either there was no satisfaction recorded or the satisfaction recorded
was absurd or perverse or mala fide or based on a wholly extraneous and irrelevant ground, it
would be no satisfaction at all and liable to be challenged before a Court. Obviously the principle
of reading down, as explained by the majority judgment, was neither invoked nor applied.
Instead, what was ruled was that the said provision would not override the power of judicial
review of the Courts which is one of the basic features of the Constitution.

31. Consequently, with utmost respect to the views of my learned brother Tewatia, J., I regret my
inability to subscribe to the view that the provisions of paragraph 2(b) would be destructive of the
democratic set up, the basic feature of our Constitution, unless read down, as suggested. The
contentions raised by the learned counsel for the petitioners are accordingly overruled and the
constitutional validity of the impugned amendment upheld.

32. Apart from the constitutionality of the Fifty-Second Amendment, the notice (Anneuxre P-6)
and the order (Annexure P-8) were sought to be quashed by the learned counsel for the
petitioners on the ground that a valid order (Annexure P-3) had already been passed by the
Speaker recognising a split in the Shiromani Akali Dal and the petitioners as a separate group
representing the faction which had arisen as a result of the said split and the present Speaker had
no jurisdiction to review the said order of his predecessor and make a fresh decision. Mr. D. D.
Thakur, the learned counsel for respondent No. 6, on the other hand, claimed that the said order
(Annexure P3) was without jurisdiction and, as such, being void ab initio was rightly held to be
not binding on any of the parties by the Speaker. The reasons advanced for this claim were that,
no question having arisen whether any member of the House has become subject to
disqualification, reference to the Speaker in this regard was pre-mature and incompetent; and that
no notice having been issued to the leader of the original political party and the leader of the
legislature party, respondent No. 7, the order was passed in violation of the principles of natural
justice.

33. Mr. Shanti Bhushan, the learned counsel for the petitioners, refuting the claim of respondent
No. 6, argued that whenever, any member of the House makes a claim that he and some 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
members of such legislature party and that the said faction be recognised as his original political
party, he has no other remedy except to approach the Speaker to pass a necessary order in this
regard and make necessary changes in the registers or the records maintained by him as
envisaged by clause (1) (a) of paragraph 8. If this course is not adopted, a queer and paradoxical
situation would arise inasmuch as in any session of the legislature thereafter, the splinter group
would not know to which political party they belong or whose whip they are to obey. The splinter
group, therefore, is not to wait till their claim is challenged by someone and a question would be
deemed to have arisen the moment a claim as envisaged by paragraph 3 is made. As regards the
making of a reference to the Speaker, he argued that anybody interested in the matter can
approach the Speaker and reliance for this contention was placed on a decision of the Supreme
Court in Brundaban Nayak's case (supra). As regards the violation of the principles of natural
justice, he contended that on the phraseology used in paragraph 3, the Speaker is not competent
to make any enquiry or record a reasoned order. The Words used in the said paragraph are
"whenever a claim is made", which means that as soon as a claim is made, the Speaker is to
accept the same and make necessary changes in the records. The question of issuing a notice to
the leader of the original political party or the legislature party, therefore, would not arise. He,
however, does not dispute that the Speaker would be entitled to make a numerical verification of
the claim and reject the same if not satisfied in that regard.

34. For taking a decision on the conflicted claims, it is necessary to analyse the true intent and
scope of the relevant provisions of the Tenth Schedule. Paragraph 2 provides that 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 if he has voluntarily given up his membership
of such political party, or 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.
Paragraph 3 provides that 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 and such group consists of not less than one-third of the members of such
legislature party, he shall not be disqualified under the above noted provisions of sub-para (1) of
paragraph 2. Paragraph sic makes a provision for the decision as to the disqualification on the
ground of defection and lays down that if any question arises as to whether a member of a House
has become subject to disqualification under the said 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. The provisions of paragraph 3 are obviously an exception to paragraph 2 and are of
the nature of a defence available to a member of the House against his disqualification, who has
either voluntarily given up his membership of the political party to which he belongs or has voted
or abstained from voting in the House contrary to the direction issued by his political party or by
any other person authorised by it. Under paragraph 6, the Speaker would have the jurisdiction in
this matter only it any question arises as to whether a member of the House has become subject
to disqualification under the said Schedule and the same has been referred to him for decision.
The purpose of requirement of a reference obviously is that even when a question as to the
disqualification of a member arises, the Speaker is debarred from taking any suo motu
cognizance and he would be seized of the matter only when the question is referred to him by
any interested person. The Speaker has not been clothed with a suo motu power for the obvious
reason that he is supposed to be a non-party man and has been entrusted with the jurisdiction to
act judicially and decide the dispute between the conflicting groups. The other pre-requisite for
invoking the jurisdiction of the Speaker under paragraph 6 is the existence of a question of
disqualification of the some member. Such a question can arise only in one way, to viz., that any
member is alleged to have incurred the disqualification enumerated in paragraph 2(1) and some
interested person approaches the Speaker for declaring that the said member is disqualified from
being member of the House and the claim is refuted by the member concerned.

35. Now, let us examine the matter other way round as suggested by Mr. Shanti Bhushan.
Suppose a split has taken place in the original party giving rise to a separate faction and more
than one-third of the members have chosen to form a group representing such a faction; the
question arises, is there any cause for them to approach the Speaker under paragraph 6.

The answer obviously would be in the negative. All that they need do would be to approach the
Speaker, put up their claim and request him to make necessary corrections in the records. When
such a claim is made, by no stretch of reasoning it can be said that a question has arisen as to
whether they have become subject to disqualification under the Tenth Schedule. The Speaker,
therefore, would have no jurisdiction to take cognizance of any dispute under paragraph 6 nor to
render any decision. Instead, he has to accept the claim as it is. This procedure has to be adopted
because the entries in the records maintained under paragraph 8(1) (a) have to be corrected and
seats to be allotted to the new group by virtue of the powers conferred on the Speaker under Rule
4 of Chapter II of the Rules of Procedure and Conduct of Business in the Punjab Vidhan Sabha
(Punjab Legislative Assembly). When the members claim to have formed a separate group, they
would obviously be deemed to have voluntarily given up the membership of their political party
within the meaning of clause (a) of paragraph 2(1). If some interested party feels that thereby
they have incurred the disqualification, it is he who has to approach the Speaker under paragraph
6 and it would be then that a question can be said to have arisen as to whether a member of a
House has become subject to disqualification and the Speaker would be seized of the matter. If
no one challenges the claim of the members who have formed a new group, the provisions of
paragraph 6 would not come into operation nor the Speaker would be seized of any question
relating to the disqualification of any member of the House. The action of the Speaker which he
is required to take when a claim is made under paragraph 3 would not, therefore, be an order
under paragraph 6 and would be only an executive action on his part in exercise of his powers
under Rules 4 and 113 of the said Rules. Moreover, as already stated above, the provisions of
paragraph 3 are an exception to paragraph 2 and provide a defence to a member who is alleged to
have incurred a disqualification. It is a thing of common knowledge that no one can approach a
judicial or quasi-judicial authority for adjudication upon his defence because unless someone
alleges that he has committed the wrong, no cause of action would arise for pleading the defence
or seeking an adjudication thereon.

36. The argument of Mr. Shanti Bhushan that if the splinter group had no right to approach the
Speaker under paragraph 6 and has to wait till some interested party makes a reference to the
Speaker, it would lead to a paradoxical situation as in that case the splinter group would not
know to which political party they belong or whose whip they are to obey, becomes untenable in
view of the analysis of the relevant provisions made above. The moment such a claim is made,
the splinter group would be deemed to have given up voluntarily the membership of their
political party and the new faction which has come into being would be deemed to be their
political party for the purposes of paragraph 2(1). If their claim is not disputed by any interested
person or by their original political party, no trouble would arise; but if somebody disputes their
claim, be has to approach the Speaker under paragraph 6, who would then be seized of the matter
and pass a proper order because no other authority in case of dispute has the jurisdiction to
declare that the splinter group has incurred the disqualification or not.

37. The reliance on the decision of the Supreme Court in Brundaban Nayak's case (supra) for the
proposition that the question would be deemed to have been referred to the Speaker on the filing
of the application by the petitioners was also wholly misplaced. What happened in that case was
that one P. Biswal made an application to the Governor of Orissa that Brundaban Nayak,
subsequent to his election had incurred a disqualification under Article 191 (1) (a) of the
Constitution, which was forwarded to the Election Commission for its opinion. On a notice
having been issued by the Election Commission, Brundaban Nayak challenged its competency to
enquire into the matter and, his counsel, without submitting to its jurisdiction, prayed for an
adjournment. The request having been declined, he filed the petition under Article 226 of the
Constitution for quashing the enquiry pending before the Election Commission, which was
dismissed in limine. He went to the Supreme Court against the order of the High Court. One of
the contentions raised before the Supreme Court by Mr. Setalvad, his learned counsel, was, that
no question could be said to have arisen as to whether the appellant Brunaban Nayak had become
subject to any of the disqualifications because such a question could be raised only on the floor
of the Legislative Assembly and that too by a member of the Assembly and not any ordinary
citizen in the form of a complaint to the Governor. It was further argued that the expression that if
any question arises it shall be referred for the decision of the Governor suggests that there was
some referring authority which was to make a reference to the Governor for his decision. The
contentions were repelled with the following observations :

Para 12 :

        "We are not impressed by these arguments. It is significant that the first clause of Article
        192(1) does not permit of any limitations such as Mr. Setalvad suggests. What the said
        clause requires is that a question should arise; how it arises, by whom it is raised, in what
        circumstances it is raised, are not relevant for the purpose of the application of this clause.
        All that is relevant is that a question of the type mentioned by the clause should arise; and
        so, the limitation which Mr. Setalvad seeks to introduce in the construction of the first part
        of Article 192(1) is plainly inconsistent with the words used in the said clause.

Para 13 :

        "Then as to the argument based on the words the question shall be referred for the
        decision of the Governor" these words do not import the assumption that any other
        authority has to receive the complaint and after a prima facie and initial investigation
        about the complaint, send it on or refer it to the Governor for his decision.

        *** *** *** ***

        *** *** *** ***

        If the intention was that the question must be raised first in the Legislative Assembly and
        after a prima facie examination by the Speaker it should be referred by him to the
        Governor, Article 192(1) would have been worded in an entirely different manner. We do
        not think there is any justification for reading such serious limitations in Article 192(1)
        merely by implication. *** *** *** *** *** *** *** ***

        ***The object of Article 192 is plain. No person who has incurred any of the
        disqualifications specified by Article 191(1), is entitled to continue to be a member of the
        Legislative Assembly of a State, and since the obligation to vacate his seat as a result of
        his subsequent disqualification has been imposed by the Constitution itself by Article
        190(3)(a), there should be no difficulty in holding that any citizen is entitled to make a
        complaint to the Governor alleging that any member of the Legislative Assembly has
        incurred one of the disqualifications mentioned in Article 191(1) and should, therefore,
        vacate his seat. The whole object of democratic elections is to constitute legislative
        chambers composed of members who are entitled to that status, and if any member
        forfeits that status by reason of a subsequent disqualification, it is in the interests of the
        constituency which such a member represents that the matter should be brought to the
        notice of the Governor and decided by him in accordance with the provisions of Article
        192(2). Therefore, we must reject Mr. Setalvad's argument that a question has not arisen
        in the present proceedings as required by Article 192(1)."

38. It passes my comprehension as to how the above-said observations support the contention of
the learned counsel that a question would be deemed to have arisen within the meaning of
paragraph 6 on the making of the application by the petitioners to the Speaker. On the other hand,
it can be reasonably implied from the said observations that the question arises only when an
interested party makes a petition to the Speaker alleging that some member of the House has
incurred a disqualification. Further, it becomes clear that not only the political party, its leader or
a member of the Legislature, but any citizen can make an application to the Speaker raising a
question under paragraph 6, which is a complete answer also to the other argument raised by Mr.
Shanti Bhushan that in the matter of disqualification, nobody except the member concerned
would be the interested party.

39. I am, therefore, of the considered view that neither any question as envisaged by paragraph 6
had arisen on the filing of the Annexure P-1 before the Speaker nor the order, Annexure P-3, can
be said to be, an order passed under paragraph 6. The natural corollary to this conclusion would
be that a question as to the disqualification of the petitioners had arisen and the Speaker was
seized of the matter only when an application in that regard was made to him by respondent No.
7.

40. Even if it may be accepted for the sake of argument that the filing of the application,
Annexure P-1, before the Speaker gave rise to a question as to the disqualification of the
petitioners and the Speaker was seized of the matter, the order, Annexure P-3, passed by him
would be non est and ineffective so for as respondent No. 7 is concerned. The principle of law is
well established that an order passed in a given proceedings would not bind any person affected
thereby who was neither party to those proceeidngs nor given an opportunity of being heard
before passing the same. It was on the same principle that a Five Judges Bench of this Court in
State of Haryana and others v. Vinod Kumar and others11 , held an order of the Collector
Agrarian to be ineffective and non est against the persons who were affected thereby but were
neither party to the proceedings nor afforded any opportunity of being heard. The Fifty-Second
Amendment has been enacted to prevent defections which necessarily means that it has been
enacted primarily for the benefit of the political parties whose members constitute the house,
though broadly speaking any citizen can invoke its provisions. The voluntary giving up of the
membership of any political party would affect such a party and so would any order passed under
paragraph 6. Consequently an order passed under paragraph 6 affecting adversely any political
party would be ineffective and non est against it if no notice is issued to it nor opportunity of
being heard afforded. By making a claim under paragraph 3, the petitioners are deemed to have
voluntarily given up the membership of the Shiromani Akali Dal on whose tickets they were
elected. So, they were liable to be declared as disqualified from being members of the House. If
their defence was to be accepted under paragraph 3 and a decision, as envisaged under paragraph
6, to be made, the principles of natural justice would require a notice to be served on the
President of the political party concerned. It has already been discussed above in detail that the
Speaker would be a Tribunal while acting under paragraph 6 and the proceedings before him of
quasi-judicial nature. Any order passed by him under that paragraph without issuing notice or
affording any opportunity of hearing to the interested party, therefore, would be non est and
ineffective against such a party. As before passing the order, Annexure P-3, neither the political
party nor any other person interested in the matter was heard, it would bind none and in that
sense it can be said to be an order void ab initio......... On both the grounds, therefore, the
Speaker was justified in ignoring the order, Annexure P-3. However, the order, dated July 4,
1986, Annexure P-8, has to be quashed because the claim of Shri Amrinder Singh that he has
been elected leader of the splinter group could be disposed of only after the question of
disqualification of the members of that group has been settled and their defence under paragraph
3 upheld.

41. In view of my findings recorded above, it is not necessary at this stage to determine the exact
import of the words "split in his original political party" used in paragraph 3 and the matter is left
open for decision by the Speaker after taking into consideration all the relevant facts and
circumstances. However, as brother Tewatia, J., has expressed his view in this regard, I must
record my disagreement therewith in so far as it has been stated that the magnitude of the split
was not of any consequence.

42. In the result, these petitions are allowed to the extent that the order, Annexure P-8, is quashed
and the other prayers declined. In the circumstances of the case, the parties are left to bear their
own costs.

D.S. Tewatia, J. :-

43. The petitioners, who are Members of the Punjab Legislative Assembly, have in these writ
petitions, impugned the notice dated 13th June, 1986 issued to them individually (a sample copy
of which is Annexure P-6, attached to the petition), by the Speaker of the Assembly - respondent
No. 6 Shri Surjit Singh Minhas requiring them to show cause as to why they be not disqualfied
from the membership of the Punjab Legislative Assembly in terms of Article 191(2), read with
paragraph 2 and 6 of Tenth Schedule of the Constitution of India. They have also impugned the
order of the Speaker, respondent No. 6, dated 4th July, 1986 (Annexure P-8), whereby he
rejected the application, dated 2nd June, 1986 (Annexure P-7), of Capt. Amarinder Singh,
M.L.A., in which he had claimed to be recognised as the Leader in the Legislative Assembly of
27-M.L.As. belonging to the Shiromani Akali Dal (hereinafter referred to as the breakaway Akali
Dal Legislative Party).

44. Before adverting to the grounds of challenge to Annexures P-6 and P-8 and the rival
contentions in this regard addressed at the Bar, the relevant facts having a bearing on the
questions posed for consideration before this Bench deserves recapitulating at the very out set.

45. Shiromani Akali Dal Legislative Party comprised of 73 M.L.As. The breakaway Akali Dal
Legislative Party, on 7th May, 1986, submitted a memorandum (Annexure P-1) to the then
Speaker Shri Ravi Inder Singh, respondent No. 4, in which after recalling the fact that they were
elected on the Shiromani Akali Dal (Longowal) ticket to the Punjab Vidhan Sabha and that on
account of fundamental differences with S. Surjit Singh Barnala, Chief Minister, Punjab,
respondent No. 7, the present leader of the Legislature Party, on the issue of police entry into the
holy precincts of Sri Harmandir Sahib, they had decided to form a separate Legislative group of
the Shiromani Akali Dal as a consequence of a split in the political party and would be grateful if
he (the Speaker) would recognize them and allocate them separate seats in the Punjab Vidhan
Sabha.

46. Each Member, who had signed Memorandum (Annexure P-1), submitted a declaration to the
Speaker on 8th May, 1986 (a sample copy of which is Annexure P-2, appended to the position).
In this declaration, each Member had acknowledged the fact that he had signed along with
others, the application jointly submitted to him voluntarily, of his free will and without any
duress from any person or political party.

47. On 8th May, 1986, the then Speaker passed an order (Annexure P-3), whereby he recognised
the new group of the breakaway Akali Dal Legislature Party, as a separate political party and
ordered that they be given separate seats in the Assembly. In that order, he also declared that the
Members of new group of breakaway Akali Dal Legislature Party did not incur any
disqualification in view of the provisions contained in paragraph 3 of the Tenth Schedule of the
Constitution of India as the group represented a faction that had emerged as a result of the split in
the original party and the membership of the new group comprised of more than 1/3rd of the
original Shiromani Akali Dal, Legislature Party, whose effective strength (excluding the Speaker,
who is neutral) was then '72'.

48. On the same date, the Punjab Vidhan Sabha Secretary issued a Press-note (Annexure P-4) in
substance to same effect as was the order of the then Speaker (Annexure P-3).

49. On 27th May, 1986, the then Speaker, Shri Ravi Inder Singh, tendered his resignation. The
Deputy Speaker of the Punjab Vidhan Sabha, Shri Nirmal Singh Kahlon had become Minister on
6th May, 1986. Thus, both the offices of the Speaker and the Deputy Speaker became vacant.
Therefore, the Governor of Punjab summoned the House to meet on 2nd June, 1986, on which
date the House was to elect a Speaker and a Deputy Speaker, besides transacting other business.
The Members of the breakaway Akali Dal Legislature Party were allotted separate seats in the
Legislative Assembly, which was presided over by pro tem Speaker Pt. Mohan Lal, respondent
No. 5; that this group set up S. Arjan Singh Litt to context for the office of the Speaker and Dr. S.
S. Mohi for the office of the Deputy Speaker and a whip to vote for them was issued to the
Members of this group by Shri Amarinder Singh, Leader of the said group. The original
Shiromani Akali Dal Legislature Party headed by Shri Surjit Singh Barnala, Chief Minister,
Punjab, set up Shri Surjit Singh Minhas respondent No. 6 for the office of the Speaker and Shri
Jaswant Singh for the office of the Deputy Speaker. The candidates set up by Shri Surjit Singh
Barnala were elected Speaker and the Deputy Speaker securing 46 votes each, whereas the
candidates put up by the breakaway Akali Dal Legislature Party secured 26 votes each.

50. On 11th June, 1986, Shri Surjit Singh Barnala, respondent No. 7, submitted a petition
(Annexure P-5) to the Speaker, respondent No. 6, under Article 191, clause (2), read with
paragraph 2 and 6 of Tenth Schedule. Vide this petition, Shri Surjit Singh Barnala, respondent
No. 7 sought the Speaker to declare the Members mentioned in that petition disqualified from
being Members of the House (Punjab Vidhan Sabha) as they had voted against the two
candidates set up by the Shiromani Akali Dal for the office of Speaker and the Deputy Speaker
contrary to the directions issued by Shri Surjit Singh Barnala, who was Leader of the Shiromani
Akali Dal Legislature Party, without obtaining the prior permission of the party or any other
person or authority, competent to grant such permission and thus incurred disqualification in
terms of clause (2) of Article 191 of the Constituion of India.

51. In the wake of this petition, the Speaker, respondent No. 6 Shri Surjit Singh Minhas issued a
show cause notice (Annexure P-6), to each such Member, already referred to above. The Speaker
also rejected the application, dated 2nd June, 1986 (Annexure P7) of Capt. Amarinder Singh, -
vide the order, dated 4th July, 1986 (Annexure P-8), already referred to above, which fact led to
the filing of the abovementioned writ petitions in this Court, inter alia alleging that the
petitioners had successfully con tested the Legislative Assembly Elections, held in September,
1985, on Shiromani Akali Dal ticket and were still Members of the Punjab Legislative Assembly;
that the Commando attack ordered by the State of Punjab, respondent No. 2, at the instance of
Shri Surjit Singh Barnala, Chief Minister of Punjab, respondent No. 7, on Sri Harmandir Sahib
(Golden Temple), at Amritsar, on 30th April, 1986, hurt the religious feelings of the people in
general and the Sikhs in particular; that the ordering of the Commando attack ran counter to the
stated political philosophy of Shiromani Akali Dal as is evident from its manifesto issued at the
time of 1985 - Elections in which it had strongly criticised the attack on the Golden Temple in
June, 1984, under the orders of the Union of India.

52. That the petitioners along with a number of other partymen expressed disapproval of the said
Commando attack of April 1986. A majority of the functionaries of the Shiromani Akali Dal,
including its office-bearers and District Jathedrs disapproved this action and resigned from their
posts in protest. S. Parkash Singh Badal, petitioner No. 1 and S. Gurcharan Singh Tohra, resigned
from the membership of the working committee of the Shiromani Akali Dal on 1st May, 1986.
Two of the Cabinet Ministers, i.e., petitioners Nos. 2 and 23, who were Members of the Ministry,
headed by respondent No. 7, resigned from their posts and also repudiated the leadership of
respondent No. 7 in the party on 2nd May, 1986. The third Minister (petitioner No. 19) resigned
from his Post and repudiated the leadership of respondent No. 7, as the President of the party, on
3rd May, 1986. Shri Surjan Singh Thekedar and Shri Majit Singh, the Vice-President and the
General Secretary of the Shiromani Akali Dal undivided party respectively also rebelled against
the leadership of respondent No. 7. The petitioner Nos. 19 and 20 relinquished the posts of the
District Presidents of Gurdaspur and Ludhiana units of the Shiromani Akali Dal, led by
respondent No. 7. A call was given to all concerned of the Shiromani Akali Dal and the Akali
Legislature Party to come and join the protest and repudiate the leadership of S. Surjit Singh
Barnala, respondent No. 7, that the aforesaid leaders along with District Jathedars and other
leaders of the party formed a separate party, namely the Shiromani Akali Dal with its acting
President Shri Surjan Singh Thekedar and Shri Manjit Singh as its General Secretary.
Consequently, the persons, whose views were akin to the views of the petitioners and their other
colleagues were nominated as District Jathedars of the new party. In this manner a complete and
formal vertical split all along the line right up to the rank and file of the party in the Shiromani
Akali Dal party, led by S. Surjit Singh Barnala, respondent No. 7, came about in the wake of ill-
designed Commando attack on the Golden Temple on 30th April, 1986, ordered by Shri Surjit
Singh Barnala; that in order to maintain the tradition of principled politics of the Shiromani Akali
Dal and to ensure consistency in respect of fundamental political and religious issue directly
affecting the party, the petitioners submitted a memorandum to the Speaker of the Punjab Vidhan
Sabha (Annexure P-1) on 7th May, 1986; that more Akali Legislatures would have joined the
breakway Akali Dal Legislature party if respondent No. 7 had not offered the remaining
Members lucrative offices. S. Surjit Singh Barnala had got appointed 25 of them as Ministers on
5th May, 1986, and six others were got appointed as Chairman of various Corporations. Thus,
out of 46 Members of the Akali Dal Legislature Party, who now owe allegiance to respondent
No. 7, barring six M.L.As., all happened to be holding one or the other lucrative office.

53. Since all the petitions (Civil Writ Petitions Nos. 3065, 3268 and 3435 of 1986, involve
common questions of law and facts, therefore, these are proposed to be decided by a common
judgment. Any reference to facts in this judgment would be from Civil Writ Petition No. 3435 of
1986.

Two separate written statements have been filed on behalf of the Speaker, Shri Surjit Singh
Minhas, respondent No. 6 and the Chief Minister, Punjab, Shri Surjit Singh Barnala, respondent
No. 7.

54. The relevant assertions made in the two written statements shall be taken notice of in detail, if
deemed necessary while dealing with the relevant contentions connected therewith. At this stage,
it would suffice to mention that respondent No. 7 in his written statement has asserted that the
police entry in the premises of the Golden Temple Complex was purely for administrative
reasons; that there was no significant public reaction against that action; that the petitioners and
the other Members of the socalled splinter group had sought to give a twist to the facts for
achieving their political ends; that the formation of the so-called splinter group was not on
account of police action in the premises of the Golden Temple Complex, but was the result of the
political frustration; that it was incorrect to say that Shiromani Akali Dal, separate party, has been
formed as a result of the split of the original party; that there was no split in the Shiromani Akali
Dal till 30th June, 1986, when for the first time a news item appeared in the Tribune indicating
that the splinter group contemplated calling a delegates-session to elect a new President in place
of respondent No. 7; that it was wrong to allege that the Ministry had been expanded to win
favour of the Legislators and to avoid defection by such M.L.As., that in fact an expansion of the
Ministry was over due and the expansion was carried out in the best interest of State
Administrations that the vancancies of Chairman of Corporations were lying vacant and had to
be filled up in best public interest; that in the petition, the petitioners had not averred that any
new political party had been formed or that the petitioners had quit the Shiromani Akali Dal and
that they had become Members of any new political party, nor there is any reference in Annexure
P-1 to the formation of any new political party outside the Vidhan Sabha; that it had not been
mentioned in the petition as to when delegate-session of the main political party was called and
when a decision for the formation of a separate political party was taken; nor the name of that
separate political party had been given; that differences of opinion in the Legislature party on
issues with the Leaders of the party do not constitute the formation of a political party; that until
a new political party was constituted outside the Legislature, the legislators could not defect from
the main political party on the Pretext that they themselves had constituted a group in defiance,
of the Leader of the political party in the Legislature.

55. Mr. Shanti Bhushan, Senior Advocate of the Supreme Court of India, has addressed the Court
on behalf of the petitioners; on behalf of the Union of India Mr. G. Ramaswamy, Additional
Solicitor-General of India, and on behalf of the Speaker and other respondents Mr. D. D. Thakur,
Senior Advocate of the Supreme Court of India, have argued the case.

56. The submissions made by Shri Shanti Bhushan fall under two broad heads :-
        (i) Constitutionality of The Constitution (Fifty-Second Amendment) Act; 1985;

and

        (ii) Merits of the action of respondent No. 6 in passing the order (Annexure P-8) and
        issuing the impugned show cause notice (Annexure P-6).

57. The Parliament in exercise of its constitution power under Article 368 of the Constitution of
India enacted the Constitution (Fifty-Second Amendment) Act, 1985 (hereinafter referred to as
'the Act').

58. Sub-section (b) of Section 3 of the Act added the following clause (2) to Article 102 :

        "(2) A person shall be disqualified for being a member of either House of Parliament if he
        is so disqualified under the Tenth Schedule."

Sub-section (a) of Section 3 and Section 2 of the Act made consequential changes in Article 102
and Article 101 of the Constitution of India, respectively.

Sub-section (b) of Section 5 of the Act too added a clause, identical to the one reproduced above,
as clause (2) to Article 191 of the Constitution.

Sub-section (a) of Section 5 and Section 4 of the Act made consequential changes in Article 191
and Article 190 of the Constitution. Section 6 of the Act provided for adding of Tenth Schedule.

59. Paragraph 1 of Tenth Schedule defines some of the expressions, namely - "House",
"Legislature Party", "original political party" and paragraph occurring in the Tenth Schedule.
Paragraph 2 provides for disqualification on account of defection. Paragraph 3, 4 and 5 prescribe
conditions, in which the disqualifying provisions of paragraph 2 would not be attracted.
Paragraph 6 designates "Chairman or, as the case may be the Speaker of the House" to be the
authority to decide the question as to whether a Member of the House had become subject to
disqualification in terms of paragraph 2 or not and also terms his decision to be "final". Sub-
paragraph (2) of paragraph 6 brings the proceedings of sub-paragraph (1) of this paragraph
within the meaning of Article 122 or as the case may be within the meaning of Article 212 of the
Constitution of India.

60. Paragraph 7 provides for the ousting of the jurisdiction of the courts in respect of any matter
connected with the disqualification of a Member of a House under the Tenth Schedule. Paragraph
8 authorizes the Chairman as the Speaker of a House to make rules for giving effect to the
provisions of Tenth Schedule and also particularizes some of the topics without prejudice to the
generality of the enabling power to make rules.

61. Mr. Shanti Bhushan has canvassed that the Supreme Court in His Holiness Kesavananda
Bharati Sripadagalvaru and others v. State of Kerala and another11 , has ruled that the
Parliament in exercise of constituent power in terms of Article 368 of the Constitution cannot
erode or destroy the basic structure or the framework of the Constitution. The seven-Judges, who
constituted the majority of the thirteen Judges' Bench, who decided Kesavananda Bharati's case
(supra), without being exhaustive identified some of the basic features of the Constitution, as
forming part of the basic structure or frame-work of the Constitution. Out of them he listed :

        (i) Parliamentary Democracy;

        (ii) Separation of powers between the Legislature, Executive and the Judiciary;

        (iii) The Federal structure; and the

        (iv) Judicial review by the courts, - as being relevant to the present case.

62. According to Mr. Shanti Bhushan, the Parliament exceeded its constituent power by enacting
paragraph 2, clause (b) and paragraphs 6 and 7 of Tenth Schedule, added to the Constitution by
Section 6 of the Act (hereinafter referred to as the paragraphs). He maintains that whereas
paragraph 2 is destructive of three basic features of the Constitution, namely - (1) Parliamentary
democracy, (2) separation of powers between three wings of the State, namely - Executive,
Legislature and Judiciary, and (3) the Federal character of the Constitution, Paragraphs 6 and 7
eroded the power of judicial review, exercised by the High Court and the Supreme Court of
India.

63. Mr. Shanti Bhushan also contended that since paragraphs 6 and 7 affected the jurisdiction of
the High Court under Article 226 and of the Supreme Court under Article 136 of the Constitution
of India, the Bill containing paragraphs 6 and 7 had to be ratified in terms of proviso to sub-
clause (2) of Article 368 of the Constitution before it could have been presented to the President
for his assent and since admittedly the Bill had not been ratified in terms of the said proviso, the
entire Act is constitutionally invalid.

64. The contention pertaining to the ratification of the Constitution (Fifty-Second Amendment)
Bill, 1985 (hereinafter referred to as 'the Bill') in terms of the proviso, aforementioned, deserves
examination at the very outset, because if this contention prevails, then the Act may have to be
declared constitutionally invalid on this score alone and consequently, it may not be necessary to
examine the other provisions of the Act, in the light of the contention raised by Mr. Shanti
Bhushan in regard to them already taken notice of above.

65. As to whether the Bill was required to be ratified in temrs of proviso, in question, it would
first have to be seen as to whether paragraphs 6 and 7 affected any change in Article 226 and
Article 136 of the Constitution of India, as these Articles form part of the group of provisions,
which are enumerated by the proviso, in question, which provision for convenience sake can be
called "the entrenched provision". Before proceeding with the rival submissions addressed at the
Bar in regard to the requirement of ratification of the Bill, it would be conducive to the
appreciation of the same if the relevant provision of Article 368 of the Constitution is reproduced
for ready reference. The relevant portion of Article 368 of the Constitution is in the following
terms :-

        "368. Power of Parliament to amend the Constitution and procedure therefor. - (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 then 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.

        (3) ... ... ... ... ... ...

        (4) ... ... ... ... ... ...

        (5) ... ... ... ... ... ..."

66. Let us now take up paragraphs 6 and 7 of the Tenth Schedule for a separate scrutiny :

Paragraph 6 in the following terms :-

        "6. Decision on quetions as to dis-qualfication 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 proceeidngs 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."

67. Perusal of paragraph 6 would reveal that clause (1) thereof makes the decision of the
adjudicating authority, 'final'. Sub-clause (2) thereof makes the proceedings envisaged by sub-
paragraph (1) of paragraph 6 and the adjudicating authority immune from the jurisdiction of any
court in terms of Article 122 and Article 212 of the Constitution of India.

Article 122 of the Constitution provides that courts are not to interfere into the proceedings of
parliament on the ground of any alleged irregualrity of 'procedure'. Clause (1) and clause (2)
thereof provide that no Officer or Member of Parliament, who is vested by or under the
Constitution with the powers for regulating procedure or the conduct of business, or for
maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the
exercise by him of these powers.

Article 212 of the Constitution similarly provides in regard to the proceedings of the Legislature
of the State.

68. Mr. Shanti Bhushan confined his challenge in the context of requirement of ratification to
sub-paragraph (1) of paragraph 6 only and, therefore, it has to be seen as to whether sub-
paragraph (1) of paragraph 6, in any manner sought to effect any change in the entrenched
provision of Article 226 and Article 136 of the Constitution of India ?

69. Mr. G. Ramaswamy has argued that 52nd Amendment was not intended to effect any change
in Article 226 and Article 136 of the Constitution of India, - its main purpose being to amend
Article 102 and Article 191 and add a new Schedule to the Constitution to give effect to those
amendments and added that even in the event of it being held that paragraphs 6 and 7 in some
manner effected the ambit of Article 226 and Article 136 of the Constitution of India, the Bill in
question, would not require to be ratified by the State Legislatures in terms of proviso to clause
(2) of Article 368 of the Constitution of India in view of the application of the doctrine of pith
and substance - the encroachment upon the jurisdiction of the High Court and the Supreme Court
under Article 226 and Article 136 of the Constitution of India, respectively, being incidental and
unavoidable and the purpose underlying the enactment of the Bill had to be achieved. Mr.
Ramaswamy further argued that the procedure of ratification envisaged by proviso to clause (2)
of Article 368 of the Constitution was directory and not mandatory in character and, therefore,
the Act cannot be held to be still-born enactment on that score.

70. Mr. D.D. Thakur, the learned counsel for respondent No. 6, adopted a somewhat different
approach in regard to the scope and ambit of paragraphs 6 and 7 and urged that neither paragraph
6 nor paragraph 7 in any manner affected the application of Article 226 and Article 136 of the
Constitution of India. Mr. D.D. Thakur argued that power of judicial review envisaged by Article
226 and Article 136 of the Constitution remains uneffected by paragraphs 6 and 7, in that the
decision of the Speaker remained subject to the writ jurisdiction of the High Court and the
Special Leave jurisdiction of the Supreme Court.

71. Let us first decide as to whether paragraph 6 in any manner affected the jurisdiction of the
High Court under Article 226 and of the Supreme Court under Article 136 of the Constitution of
India.
Mr. G. Ramaswamy referred us to a Supreme Court decision in Brundaban Nayak v. Election
Commission of India and another14, and drew our pointed attention to paragraphs 13 and 14
thereof in support of his submission in relation to paragraph 6 of Tenth Schedule that the
jurisdiction of courts, including the High Court and the Supreme Court stood ousted, and that the
order of the Speaker rendered in terms of paragraph 6 of Tenth Schedule could not be called in
question in any manner either in the High Court or in the Supreme Court :

Para 13 :

        "Then as to the argument based on word "the question shall be referred for the decision of
        the Governor", these words do not import the assumption that any other authority has to
        receive the complaint and after a prima facie and initial investigation about the complaint,
        send it on or refer it to the Governor for his decision. These words merely empahsise that
        any question of the type contemplated by clause (I) of Article 192 shall be decided by the
        Governor and Governor alone; no other authority can decide it, nor can the decision of
        the said question as such fall within the jurisdiction of the Courts, That is the significance
        of the words "shall be referred for the decision of the Governor" If the intention was that
        the question must be raised first in the Legislative Assembly and after a prima facie
        examination by the Speaker it should be referred by him to the Governor, Article 192(1)
        would have been worded in an entirely different manner. We do not think there is any
        jurisdiction for reading such serious limitations in Article 192 (I) merely by implication."

para 14 :

        "The object of Article 192 is plain. No person who has incurred any of the
        disqualifications specified by Article 191(I), is, entitled to continue to be a member of the
        Legislative Assembly of a State, and since the obligation to vacate his seat as a result of
        his subsequent disqualification has been imposed by the Constitution itself by Article
        190(3)(a), there should be no difficulty in holding that any citizen is entitled to make a
        complaint to the Governor alleging that any member of the Legislative Assembly has
        incurred one of the disqualifications mentioned in Article 191(1) and should, therefore,
        vacate his seat. The whole object of democratic elections is to constitute legislative
        chambers composed of members who are entitled to that status, and if any member
        forfeits status by reason of a subsequent disqualification, it is in the interest of the
        constituency which such a member represents that the matter should be brought to the
        notice of the Governor and decided by him in accordance with the provisions of Article
        192(2). Therefore, we must reject Mr. Satalvad's argument that a question has not arisen
        in the present proceedings as required by Article 193(1)."

72. He also argued that in its substantive import paragraph 6 is almost in pari materia with
Article 192 of the Constitution. He laid stress on the fact that if the framers of the original
Constitution thought it fit to make the decisions of the Governor immune from the judicial
review by the High Court and the Supreme Court, then the Parliament by enacting paragraph 6, a
parallel provision and therein substituting the expression 'Governor' for the word 'Speaker' or the
'Chairman' must have intended the same result.

73. I find no merit in the contention advanced on behalf of the Additional Solicitor-General of
India, Mr. G. Ramaswamy. In my view, the authority relied upon by Mr. Ramaswamy is of no
avail. In my opinion, despite the use of the word 'final' in sub-paragraph (1) of paragraph 6, the
decision of the Speaker, or as the case may be, of the Chairman of the House remains subject to
the writ jurisdiction of the High Court under Article 226 and inter alia the special Leave
jurisdiction of the Supreme Court of India.

74. Their Lordships in Brundaban Nayak's case (supra) did not lay down the proposition that the
order of the Governor passed in terms of Article 192 of the Constitution would be immune from
review by the High Court and the Supreme Court as would be presently shown.

75. In Brundaban's case (supra), the Supreme Court was called upon to resolve the controversy
as to 'whether it was the Speaker of the House, who in the first instance, was to receive the
complaint and examine the question of disqualification of a Member of that House and on being
satisfied that the Member had incurred the disqualification mentioned in the complaint, he was to
make a reference to the Governor in terms of Article 192 of the Constitution ? The contention
raised before the Supreme Court was that since that had not been done the order of the Governor
disqualifying the given Member was illegal. Their Lordships held that under Article 192 of the
Constitution, the Speaker of the House had no jurisdiction in the matter whatsoever. Their
Lordships also ruled that the Chief Commissioner alone had the jurisdiction to investigate thhe
matter and make a recommendation to the Governor, who in turn was bound to pass an order in
accordance with the said recommendation. The underlined observation in paragraph 13, which
Mr. G. Ramaswamy is holding out to show that the Supreme Court has ruled that Article 192 of
the Constitution ousted the jurisdiction of the High Court and the Supreme Court under Article
226 and Article 136 of the Constitution, respectively, do not support his contention. What their
Lordships meant to exclude was the judicial determination of the question by the Courts and not
the judicial review by the High Court and the Supreme Court of the decision of the Governor. In
that case their Lordships were not called upon to decide as to whether the Governor's order
passed in terms of Article 192 of the Consitution was or was not immune from judicial review by
the High Court and the Supreme Court under Article 226 and Article 136, respectively of the
Constitution. The import of the expression "final" used in Article 192 of the Constitution did not
even come up for consideration at all. So much so their Lordships have not mentioned even
once, the word "final".

76. Their Lordships did not rule that the order of the Governor was immune from the power of
the judicial review of the High Court and the Supreme Court under Article 226 and Article 136
of the Constitution of India.

77. The very expression "final" also occurs in Article 217(3) of the Constitution in regard to the
order of the President of India. This provision is in the following terms :-

        "217(3) Appointment and conditions of the office of a Judge of a High Court - (1) ... ... ...

        (2) ... ... ... ... ... ....

        (3) If any question arises as to age of a Judge of a High Court, the question shall be
        decided by the President after consultation with the Chief Justice of India and the decision
        of the President shall be final."

78. Their Lordships had an occasion to consider the ambit of the power of the President and the
nature of the order passed by him in exercise of the power under Article 217(3) in Union of India
v. Jyoti Parkash14, Their Lordships held that the High Court could examine the validity of the
order passed by the President in certain respects. In this regard the following observations of their
Lordships in para 31, at page 1106 deserve to be noticed :-

        "... ... The President acting under Articles 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 case 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
        President's judgment was coloured by the advice or representation made by the executive
        or it was founded on no evidence. But this Court will not sit in appeal over the judgment
        of the President nor will the Courts determine the weight which should be attached to the
        evidence. Appreciation of evidence is entirely left to the President and it is not for the
        Courts to hold that on the evidence placed before the President on which the conclusion is
        founded, if they were called upon to decide the case they would have reached some other
        conclusion."

79. The Constitutional Bench of 5 Judges in Durga Shankar Mehta v. Raghuraj Singh and
others15 , had an occasion to consider the ambit of Section 105 of the Representation of the
People Act, 1951, in the context of their jurisdiction under Article 136 of the Constitution. On
the strength of the provision of Section 105, ibid, which would be presently noted, a contention
was advanced before their Lordships that the order of the Election Tribunal is not subject to
review by the Supreme Court under Article 136 of the Constitution of India and the said
argument was further sought to be underpinned by a reference to the provisions of Article 329,
Clause (b) Article 329(b) provided that no election shall be called in question except by an
Election Petition presented in accordance with the provisions of this part. Section 105 of the
Representation of the People Act provided that every order of the Tribunal made under this Act
shall be final and conclusive.

80. Their Lordships repelled the contention with the follwing observations made in paragraph 4
and held that the powers of the Supreme Court to interfere by way of Special Leave could always
be exercised :-

... ... ... ... ... ...

... ... ...The jurisdiction with which the Election Tribunal is endowed is undoubtedly a special
jurisdiction; 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.

The 'non-obstante' clause with which Article 329 of the Constitution begins and upon which the
respondent's counsel lays so much stress debars us, as it debars any other court in the land, to
entertain a suit or a proceeding calling in question any election to the parliament or the State
Legislature. It is the Election Tribunal alone that can decide such disputes, and the proceeding
has to be initiated by an election petition and in such manner as may be provided by a statute.
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 only courts or tribunals, which are expressly exempted from the purview of Article 136,
are those which are established by or under any law relating to the Armed Forces as laid down in
clause (2) of the Article". "...The powers given by Article 136 of the Constitution however are in
the nature of special or residuary powers which are exercisable outside the purview of ordinary
law, in cases where the needs of justice demand interference by the Supreme Court of the land.
The Article itself is worded in the widest terms possible. It vests in the Supreme Court a plenary
jurisdiction in the matter of entertaining and hearing appeals, by, granting of special leave,
against any kind of judgment or order made by a court or tribunal in any cause or matter and the
powers could be exercised in spite of the specific provisions for appeal contained in the
Constitution or other laws. The Constitution for the best of reasons did not choose to fetter or
circumscribe the powers exercisable under this Article in any way.

Section 105 of the Representation of the people Act certainly gives finality to the decision of the
Election Tribunal so far 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."

81. The latest judgment by the Constitutional Bench in (S.P. Sampath Kumar v. Union of India
and others)16 , should in any case be taken to have settled finally the controversy as to the scope
of Judicial review power of the High Court and the Supreme Court. Their Lordships have held
that the order of a Tribunal is always subject to the power of Judicial review of the High Court
and the Supreme Court unless the Tribunal in question is a complete substitute of the High Court
in the particular sphere as was the position of Tribunal created in pursuance of the provision of
Article 323-A of the Constitution. In this regard the following observation of Bhagwati, C.J. are
instructive :-

        "It is now well-settled as a result of the decision of this Court in Minerva Mills Ltd. &
        others v. Union of India and Ors. that Judicial review is a basic and essential feature of the
        Constitution and no law passed by Parliament in exercise of its constituent power can
        abrogate it or take it away."

******

        "*** It is also a basic Principle of the Rule of law which permeates every provision of the
        Constitution and which forms its very core and essence that the exercise of power by the
        executive or any other authority must not only be conditioned by the Constitution but also
        be in accordance with law and it is the judiciary which has to ensure that the law is
        observed and there is compliance with the requirements of law on the part of the
        executive and other authorities. This function is discharged by the judiciary by exercise of
        the power of judicial review which is a most potent weapon in the hands of the judiciary
        for maintenance of the Rule of law. The power of judicial review is an integral part of our
        constitutional system and without it, there will be no Government of Laws and the Rule of
        Law would become a teasing illusion and a promise of unreality. * * *"

******

        "It is undoubtedly true that my judgement in Minerva Mills Ltd. case (supra) was a
        minority judgment but so far as this aspect is concerned, the majority Judges also took the
        same view and held that judicial review is a basic and essential feature of the Constitution
        and it cannot be abrogated without affecting the basic structure of the Constitution. * * * *
        **

*****

*******

82. The Court of Appeal, speaking through Lord Justice Denning Re; Gilmore's Application17,
while examining the effect of Section 36(3) of the National Insurance (Industrial Injuries) Act,
1946. "that any decision of a claim or question shall be final" posted the question : "Do these
words preclude the Court of Queen's Bench from issuing a certiorari to bring up the decision ?"
and answered the said question in the negative with the following observation :-

        "...... On looking again into the old books I find it very well settled that the remedy by
        certiorari is never to be taken away by any statute except by the most clear and explicit
        words. The word "final" is not enough. That only means "without appeal". It does not
        mean "without recourse to certiorari". It makes the decision final on the facts, but not
        final on the law. Notwithstanding that the decision is by a Statute made "final", Certiorari
        can still issue for excess of jurisdiction or for error of law on the face of the record..."

83. Further, the following extract from his opinion would show as to how the courts have held on
to this view of their jurisdiction despite the use of seemingly clear words rendering the decision
of the given authority immune :-

        "Sir Edward Coke, C.J., started this train of authority when he said, in Foster's case (5)
        (1614), II Co. Rep. 56b at p. 64b), that the words of an Act of Parliament "shall not bind
        the King's Bench because the pleas there are corma; ipso Rage" Kelynge, C.J., gave the
        train an impetus in 1670 in Smith's case (6) (1670), 1 Mod, Rep. 44; CALLISON
        SEWERS (4th Edn.) (1824) (342), when an order of the Commissioners of Sewers was
        brought before him. It was pointed out that the statute 13 Eliz. c. 9 enacted that they
        should not be compelled to certify or return their proceedings and "that they shall not be
        reversed but by other commissioners", KELYNGE, C. J., disposed of the objection by
        saying (1 Mod. Rep. at P. 45);

        "Yet it was never doubted, but that this Court might question the legality of their orders
        notwithstanding; and you cannot oust the jurisdiction of this court without particular
        words in Acts of Parliament. There is no jurisdiction, that is uncontrollable by this court."

A few years later, in 1686, the Court of King's Bench had a case R. v. Plowright (7)(1686), (3
Mod. Rep. 94) where the collectors of the tax on chimneys had distrained on the landlord of a
cottage. The Act, 16 Car. 2 c. 3, said that "if any question shall arise about the taking of any
distress, the same shall be heard and finally determined by one or more justices..." The justices
made a determination which was erroneous in law on its face in that it did not state sufficient
grounds for making the landlord liable. The court issued a certiorari to quash their determination
and said (3 Mod. Rep. at P. 95).

        "The statute doth nor mention any certiorari which shows that the intention of the law-
        makers was, that a certiorari might be brought, otherwise they would have enacted, as
        they have done by several other statutes, that no certiorari shall lie. Therefore, the
        meaning of the Act must be, that the determination of the justice of the peace shall be
        final in matters of fact only...."

In the famous case. Grenville A. College of Physicians. (8) (1700), (12 Mod. Rep. 386; 1 Ld.
Raym. 454). HOLT, C.J. gave the full weight of his authority to those decisions, especially
mentioning (1 Ld. Raym, at P. 469) Smith's lease (6). In 1760 in R. v. Moreley, R. v. Osborne. R.
v. Reeve. R. v. Narris (9) (1760), (2 Burr. 1040), LORD MANSFIELD was faced with the
Conventicle Act (22 Car. 2 c. 1), which said :

        "that no other court whatsoever shall intermeddle with any cause or causes of appeal upon
        this Act; but they shall be finally determined in the quarter sessions only."

Nevertheless, LORD MANSFIELD ordered certiorari to issue; saying (2 Burr. at p. 1042); "The
jurisdiction of this court is not taken away, unless there be express words to take it away; this is a
point settled".

In 1800. R. v. Jukes (10) (1800), (S. Term Rep. 542) a conviction by justices was erroneous on
the face of the record, because it did not exclude a possible defence. When the defendant moved
to have it quashed, the prosecutor objected (ibid, at p. 544);

        "that the defendant having elected to appeal to the sessions, the certiorari was in effect
        taken away by the Act (36 Geo. 3 c. 60), because it said that the determination of the
        sessions should be final."

LORD KENYON, C.J., however said (ibdi);

        "That would be against all authority; for the certiorari being a beneficial writ for the
        subject could not be taken without express words..."

JOSEPH CHITTY, commenting on this case said the words "finally determine" merely
prohibited a reinvestigation of the facts, see CHITTY'S GENERAL PRACTICE OF THE LAW,
(vol. 2 pp. 218, 219). Finally in 1823, in R. v. Cashiobury Hundred JJ. (11) (1823) 3 Dow. & Ry.
K.B. 35), the Court of King's Bench in its golden age presided over by ABBOTT, C.J. summed
up the whole matter by saying that certiorari always lies, unless taken away, and an appeal never
lies unless it is expressly given by the statute...

It was, no doubt, that train of authority which LORD SUMNER had in mind when he said in R.
v. Nat Bell Liquors, Ltd. (12) (1922) (2 A.C. 12 at p. 159) :

        "Long before Jervis's Acts statutes had been passed which created an inferior court, and
        declared its decisions to be 'final' and 'without appeal', and again and again the Court of
        King's Bench had held that language of this kind did not restrict or take away the right of
        the court to bring the proceedings before itself by certiorari."

I venture, therefore, to use in this case the words which I used recently, in Taylor v. National
Assistance Board, (13) (ante 183, at p. 185), about declarations, with suitable variations to
certiorari;

        "The remedy is not excluded by the fact that the determination of the board is by statute
        made 'final'. Parliament gives the impress of finality to the decisions of the Board only on
        the condition that they are reached in accordance with the law..."

In my opinion, therefore, notwithstanding the fact that the statute says that the decision of the
medical appeal tribunal is to be final, it is open to this court to issue a certiorari to quash it for
error of law on the face of the record. It would seem to follow that a decision of the National
Insurance and Industrial Injuries Commissioners is also subject to supervision by certiorari (a
point left open by the Divisional Court in R. v. National Insurance Commr. Ex. P. Timmis, (14)
(1954) 3 All England Reporter 292), but they are so well versed in the law and deservedly held in
such high regard that it will be rare that they fall into error such as to need correction.

In contrast to the word "final", I would like to say a word about the old statutes which used, in
express words, to take away remedy by certiorari by saying that the decision of the tribunal
"shall not be removed by certiorari". Those statutes were passed chiefly between 1680 and 1848
in the days when the courts used certiorari too freely and quashed decisions for technical defects
of form. In stopping this abuse the statutes proved very beneficial but the court never allowed
those statutes to be used as a cover for wrongdoing by tribunals. If tribunals were to be at liberty
to exceed their jurisdiction without any check by the courts, the rule of law would be at an end.
Despite express words taking away certiorari, therefore it was held that certiorari would lie if
some of the members of the tribunal were disqualified from acting : see R. v. Chelteham
Commrs., (15) (1841), (I. Q. B. 467 at p. 474), where LORD DENMAN, C.J., said :

        "The statute cannot affect out right and duty to see justice executed ........ "So, also, if the
        tribunal exceeded its jurisdiction (see Ex. P. Bradlaugh (16) (1878) 3 Q.B.D. 509) or if its
        decision was obtained by fraud (See R. v. Gillyard (17) (1848), 12 Q.B. 52), the courts
        would still grant certiorari. I do not pause to consider these cases further; for I am glad to
        notice that modern statutes never take away in express words the right to certiorari
        without substituting an analogous remedy. This is probably because the courts no longer
        use it to quash for technical defects, but only use it in case of substantial miscarriage of
        justice. Parliament now-a-days more often uses the word "final", or "final and conclusive"
        or some such words, which leave intact the control of the Queen's courts by certiorari."

84. In another case in Anisminic Ltd. v. Foreign Compensation Commission and another18, the
House of Lords had to consider the effect of the following provision of sub-section (4) of Section
4 of the Foreign Compensation Act, 1950 on the writ jurisdiction of the Queen's Bench decision :

        "The determination by the Commission of any application made to them under this Act
        shall not be called in question in any Court of Law."

LORD REID, with whom LORD PEARCE and LORD WILBERFORCE agreed, held that the
Court was not precluded from considering as to 'whether the order is a nullity'. He observed :

        "No case has been cited in which any other form of words limiting the jurisdiction of the
        court has been held to protect a nullity. If the draftsman or parliament had intended to
        introduce a new kind of ouster clause so as to prevent any inquiry even as to whether the
        document relied on was a forgery, I would have expected to find something much more
        specific than the bald statement that a determination shall not be called in question in any
        court of law. Undoubtedly such a provision protects every determination which is not a
        nullity. But I do not think that it is necessary or even reasonable to construe the word
        "determination" as including everthing which purports to be determination but which is in
        fact no determination at all".

85. As to what amounts to a nullity, his Lordship had following to say :

        "It has sometimes been said that it is only where a Tribunal acts without jurisdiction that
        its decision is a nullity. But in such cases the word "jurisdiction" has been used in a very
        wide sense, and I have come to the conclusion that it is better not to use the term except in
        the narrow and original sense of the tribunal being entitled to enter on the inquiry in
        question. But there are many cases where, although the tribunal had jurisdiction to enter
        on the inquiry, it has done or failed to do something in the course of the inquiry which is
        of such a nature that its decision is a nullity. It may have given its decision in bad faith. It
        may have made a decision which it had no power to make. It may have failed in the
        course of the inquiry to comply with the requirements of natural justice. It may in perfect
        good faith have misconstrued the provisions giving it power to act so that it failed to deal
        with the question remitted to it and decided some question which was not remitted to it, it
        may have refused to take into account something which it was required to take into
        account. Or it may have based its decision on matter which, under the provisions setting it
        up, it had no right to take into account. I do not intend this list to be exhaustive. But if it
        decides a question remitted to it for decision without committing any of these errors it is
        as mulch entitled to decide that question wrongly as it is to decide it rightly. I understand
        that some confusion has been caused by my having said in Reg. v. Governor of Brixton
        Prison, Ex parte Armah (1968) A.C. 192, 234 that if a tribunal has jurisdiction to go right
        it has jurisdiction to go wrong. So it has, if one uses "furisdiction" in the narrow original
        sense. If it is entitled to enter on the inquiry and does not do any of those things which I
        have mentioned in the course of the proceeings, then its decision is equally valid whether
        it is right or wrong subject only to the power of the court in certain circumstances to
        correct an error of law..."

86. In view of the aforesaid authoritative decisions of the Supreme Court and the English
authorities of the Court of Appeal and the House of Lords, I have no hesitation in holding that
the order passed by the Speaker under Paragraph 6 of Tenth Schedule remains subject to the
judicial review of the High Court under Article 226 of the Constitution. In other words paragraph
6 in no manner effects the ambit of Article 226 of the Constitution of India.

87. Mr. G. Ramaswamy had also contended that the decision of the authority under sub-
Paragraph (1) of paragraph 6 is not liable to review by the Supreme Court in exercise of its
Special Leave jurisdiction under Article 136 of the Constitution of India, because the Speaker or,
as the case may be, the Chairman of the House, is not a Tribunal.

88. In nay opinion, there is no merit in this contention. Sub-paragraph (1) of paragraph 6 confers
on the authority mentioned therein power to deprive by its decision a Member of his very
important right to continue to be the Member of the House. The authority named in the said
paragraph discharges the judicial function of the State by virtue of this provision. The
Constitutional Bench in Durga Shankar Mehta's case (supra) approvingly quoted the ratio of the
Supreme Court decision in The Bharat Bank, Ltd., Delhi v. The Employees of the Bharat Bank
Ltd., Delhi19, that the expression "tribunal" as used in Article 136 includes within its ambit all
adjucating bodies, provided they are constituted by a State and also vested with the judicial as
distinguishable from purely administrative and executive functins.

89. in All Party Hill Leaders' Conference, Shillong v. Captain W.A. Sangma and Others20, the
Supreme Court had to decide whether the Election Commission is a Tribunal within Article 136,
clause (1) of the Constitution of India. P. K. Goswami, J., who delivered the opinion of the Bench
after referring to earlier decisions of this Court, namely - Bharat Bank Ltd., Delhi's case (supra)
in which Industrial Tribunal constituted under the Industrial Disputes Act, 1947, was held to be a
'Tribunal' within the scope of Article 136 of the Constitution of India and J.K. and Steel Co. Ltd.,
Kanpur v. The Iron and Steel Mazdoor Union, Kanpur21, M/s. Harinagar Sugar Mills Ltd. v.
Shyam Sunder Jhunjhunwala22 , Jaswant Sugar Mills Ltd., Meerut v. Lakshmichand23,. The
Engineering Mazdoor Sabha v. The Hind Cycles Ltd., Bombay24, and Associated Cement
Companies Ltd. v. P.N. Sharma25, observed that several tests have been laid down by this Court
(Supreme Court) to determine whether a particular body or authority is a tribunal within the
ambit of Article 136. The tests are not exhaustive in all cases. It is also well settled that all the
tests laid down may not be present in a given case. While some tests may be present others may
be lacking. It is, however, absolutely necessary that the authority in order to come within the
ambit of Article 136(1) as tribunal must be constituted by the State and invested with some
function of judicial power of the State. This particular test is an unfailing one while some of the
other tests may or may not be present at the same time..." Goswami, J. further referred to the
following illuminating observation of the Constitutional Bench in Associated Cement Companies
Ltd.'s case (supra) :

        "As in the case of courts, so in the case of tribunals, it is the State's inherent judicial
        power which has been transferred and by virtue of the said power, it is the State's inherent
        judicial function which they discharge. Judicial functions and judicial powers are one of
        the essential attributes of a sovereign State, and on considerations of policy, the State
        transfers its judicial functions and powers mainly to the courts established by the
        Constitution; but that does not affect the competence of the State, by appropriate
        measures, to transfer a part of its judicial powers and functions to tribunals by entrusting
        to them the task of adjudicating upon special matters and disputes between parties. It is
        really not possible or even expedient to attempt to describe exhaustively the features
        which are common to the tribunals and the courts, and features which are distinct and
        separate. The basic and the fundamental feature which is common to both the courts and
        the tribunals is that they discharge judicial functions and exercise judicial powers which
        inherently vest in a sovereign State.

        "But as we already stated, the consideration about the presence of all or some of the
        trappings of a court is really not decisive. The presence of some of the trapping may assist
        the determination of the question as to whether the power exercised by the authority
        which possesses the said trappings, is the judicial power of the State or not. The main and
        the basic test however, is whether the adjudicating power which a particular authority is
        empowered to exercise, has been conferred on it by a statute and can be described as a
        part of the State's inherent power exercised in discharging its judicial function..."

90. Section 9 of the Civil Procedure Code confers upon the civil courts the jurisdiction to try all
suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly
barred. Explanation I to Section 9 thereof indicates that a suit in which the right to property or to
an office is contested is a suit of a civil nature.

91. Membership of a House is an office, which the person successfully elected to is entitled to
hold. If illegally deprived of that office the Member is entitled to challenge the order in the civil
court by filing a civil suit. Articles 103 and 192 of the Constitution and paragraphs 6 and 7 of the
Tenth Schedule take away the jurisdiction of the civil court in this regard and entrust the said task
to the President under Article 103, to the Governor under Article 192 and to the Speaker or, as
the case may be, the Chairman of the House under paragraph 6. It only means that in this regard
the inherent judicial power of the State which was exercisable by a civil court has now been
transferred to the authorities named in Article 103 and Article 192 of the Constitution and
paragraph 6. The power that such authority exercises is 'Judicial'. This power has been conferred
upon such authorities by the Constitution itself. Therefore, I have no hesitation to hold that the
authority named in paragraph 6 of the Tenth Schedule and Article 192 of the Constitution
performs 'Judicial functions' whilst adjudicating upon the question as to whether the Member had
become subject to any disqualification and, therefore, they are the Tribunals for the purpose of
Article 136 of the Constitution of India and their decision is subject to review by the Supreme
Court in exercise of its powers under Article 136 of the Constitution of India.

92. In view of the above, I hold that paragraph 6 in no manner detracts from the jurisdiction of
the Supreme Court under Article 136 of the Constitution of India despite use of the word "final"
in sub-paragraph (1) of paragraph 6 of the Tenth Schedule.

93. Coming now to the analysis of paragraph 7, it may be observed that Mr. G. Ramaswamy
forcefully contended that paragraph 7 was enacted to make the intention of the legislature clear
that it wanted to make the decision of the authority, mentioned in paragraph 6 totally immune
from any interference by any court, including the High Court and the Supreme Court.

94. To appreciate the above contention of the Additional Solicitor-General, a look at paragraph 7
is necessary. It is in the following terms :-

        "7. Bar of jurisdiction of Courts. - Notwithstanding anything in this Constitutin, no court
        shall have nay jurisdiction in respect of any matter connected with the disqualificatin of a
        member of a House under this Schedule."

Paragraph 7 according to Mr. G. Ramaswamy, has been enacted partly to make express what was
implied in paragraph 6 and partly out of abundant caution to take care of what may have been
left uncovered by paragraph 6, by the use of 'non-obstante' clause "notwithstanding anything" in
this paragraph. Mr. G. Ramaswamy contends that Parliament has, by enacting paragraph 7, sough
to take out from the purview of all Courts all matters connected with the disqualification of a
Member of the expression "Notwithstanding anything in this Constitution" in paragraph 7 before
the words "no court" clearly points to the jurisdiction of the High Court and the Supreme Court,
as the Constitution creates only these two Courts and confers jurisdiction under Article 226 and
Article 227 upon the High Court and inter alia under Article 32 and Article 136 of the
Constitution upon the Supreme Court, that means, maintained Mr. G. Ramaswamy that by
enacting paragraph 7, the Parliament had expressly intended to oust the review jurisdiction of the
High Court and the Supreme Court in regard to the decision of the authority mentioned in
paragraph 6, clause (1) of the Tenth Schedule.

95. Mr. D.D. Thakur, on the other hand, submitted that by enacting paragraph 7, the Parliament
merely sought to exclude determinative jurisdiction of the courts in regard to matters connected
with the disqualification of a Member and not the 'review jurisdiction' of the High Court and the
Supreme Court in regard to the decision of the Speaker or, as the case may be, of the Chairman.
Mr. D. D. Thakur argued that the expression "jurisdiction" occurring in paragraph 7 had acquired
fixed connotation and has become a term of Art and that as a term of Art, it means that the court
is entitled to enter on an enquiry into the question as to whether a Member has incurred
disqualification of the kind. He maintained that the Parliament, therefore, must have used the
expression "jurisdiction" in that narrow sense. He also canvassed that the expression 'matter'
occurring in Paragraph 7 in relation to the disqualification of a Member would not compass
within its fold the decision of the Speaker or, as the case may be, of the Chairman, rendered
under paragraph 6(1) of the Tenth Schedule.

96. In my opinion, I find no merit in the contention advanced on behalf of Mr. Thakur. The
determinative jurisdiction of the courts by necessary implication had been excluded by sub-
paragraph (1) of paragraph 6, which envisaged the Speaker or, as the case may be, the Chairman
of the House to inquire into the question as to whether a Member had incurred the given
disqualification and made his decision "final". Because by doing so, the Parliament clearly
intended to oust the determinative jurisdiction of the courts. The Parliament by enacting
paragraph 7, in my opinion had not only intended to make express what was implied in
paragraph 6, but also intended to oust the jurisdiction of the High Court and the Supreme Court
inregard to the decision of the Speaker or as the case may be, of the Chairman of the House. By
using the expression "any jurisdiction in paragraph 7", the Parliament, it appears to me, had made
its intention in this regard crystal clear. If the Parliament had intended merely to oust the
determinative jurisdiction of the courts then it would not have used the expression "any
jurisdiction" which means "any kind of jurisdiction" and when this is considered in the context of
the non-obstante clause "notwithstanding anything in this Constitution", it clearly meant to
include the jurisdiction of the Court and the Supreme Court. The High Court and the Supreme
Court do not exercise any determinative jurisdiction under Article 226 and Article 136 of the
Constitution. The Parliament by enacting paragraph 7, clearly intended to take away the review
jurisdiction of the High Court and the Supreme Court under Article 226 and Article 136 of the
Constitution of India in all matters connected with the disqualification of a Member of a House
under the Tenth-Schedule. The expression 'matter', in my opinion, would certainly include the
decision of the Speaker or, as the case may be, of the chairman, rendered in terms of paragraph
6(1), because the decision of the kind is certainly connected with the disqualification of the kind
of a Member of the House.

97. Since paragraph 7 seeks to oust the jurisdiction of the High Court and the Supreme Court
under Article 226 and Article 136 of the Constitution, respectively, it necessarily affects change
in these two Articles. For clarification sake, Article 226 and Article 136 of the Constitution are
reproduced in their existing form and in the form in which as a result of paragraph 7, these
Articles would in fact implidly emerge :

In existing form Art, 226 would In the amended form Article 226 would

read :  read :

"..... Notwithstanding anything in "..... Notwithstanding anything in Article
Article 32, * * * every High 32, * * * every High Court shall have
Court shall have power, power, throughout the territories in
throughout the territories in relation to which it exercises jurisdiction,
relation to which it exercises to issue to any person or authority
jurisdiction, to issue to any person (excepting the Speaker or as the case may
or authority, including in be of the Chairman of the House while
appropriate cases, any deciding the question of disqualification
Government, within those of a Member in exercise of powers under
territories directions, orders or paragraph 6(1) of Tenth Schedule of the

writs, including writs in the Constitution of India) including in

nature of habeas corpus, appropriate cases, any Government within

mandamus, prohibition, quo those territories directions, orders or writs

warranto and certiorari, or any of including writs in the nature of habeas

them, for the enforcement of any corpus, mandamus, prohibition, quo

of the rights conferred by part III warranto and certiorari, or any of them,

and for any other purpose.  for the enforcement of any of the rights

                            conferred by part III and for any other

                            purpose.

** ** **                    ** ** **

In existing form Article 136, In the amended form Article 136 would

would read :                read :

"*** ***                    "*** ***

                            (1) Notwithstanding anything in this

                            Chapter, the Supreme Court may, in its

(1) Notwithstanding anything in discretion, grant special leave to appeal

this Chapter, the Supreme Court from any judgment, decree,

may, in its discretion, grant determination, sentence or order in any

special leave to appeal from any cause or matter passed or made by any

judgment, decree, determination, court or tribunal in the territory of India

sentence or order in any cause or (excepting the Speaker or, as the case

matter passed or made by any may be, of the Chairman of the House

court, or tribunal in the territory while deciding the question of

of India.                   disqualfication of a Member in exercise

                            of powers under paragraph 6(1) of Tenth-

                            Schedule of the Constitution of India).

(2) *** ***                 (2) *** ***

The question that, however, requires examination is as to whether the Bill as such or paragraph 7
alone was required to be ratified in terms of proviso to clause (2) of Article 368 of the
Constitution.

98. Before doing so, we may at this stage, consider already referred to, two other submissions of
the Additional Solicitor-General of India, Mr. G. Ramaswamy. They are :-

        (i) that the procedure envisaged by said proviso is directory in character and not
        mandatory;

        (ii) that in 'pith and substance' the Bill was meant to prescribe an additional
        disqualification of a Member of the House by effecting amendment in Article 191 and
        Article 102 and consequential changes in Article 192 and Article 101 and that any
        encroachment upon Article 226 and Article 136 of the Constitution is merely incidental
        and unavoidable.

99. So far as the directory or mandatory character of the procedure envisaged by the said proviso
is concerned, the matter is not res integra. The Apex Court has already ruled in Kesavananda
Bharati's case (supra) that the procedure envisaged by clause (2) of Article 368 of the
Constitution of India is mandatory in character, as is made evident by the following observation
of Bhagwati, J. (as he then was) made in Minerva Mill's case (supra) :

        "It was undisputed common ground both at the bar and on the Bench, in Kesavananda
        Bharati's case that any amendment of the Constitution which, did not conform to the
        procedure prescribed by sub-clause (2) and its proviso was no amendment at all and a
        court would declare it invalid."

100. Mr. G. Ramaswamy, however, cited the following decisions in support of his contention that
the procedure envisaged by the proviso is directory in character :-

        (i) Jan Mohammad Noor Mohamad Bagban v. The State of Gurjarat and another, A.T.P.
        1966 S.C. 385 at 394 (Para 18).

        (ii) Kati Pada Chowdhury and others v. Union of India and others AIR 1963 Supreme
        Court 134 at 138 (Paras 11 and 12).

        (iii) Messrs Hoechst Pharmaceuticals Limited and another etc. v. State of Bihar and
        others. AIR 1983 Supreme Court 1019 (Para 89).

        (iv) Jawaharmal v. The State of Rajasthan and others, AIR 1966 Supreme Court 764 at
        769 and 771 (Para 16).

        (v) M/s Mangalore Ganesh Beedi Works v. The State of Mysore and another, AIR 1963
        S.C, 589 at 590, and

        (vi) Purushothaman Nambudiri v. State of Kerala, AIR 1962 Supreme Court 694 at 698 to
        701.

Ratio of none of these cases is attracted to the facts of the present case, even remotely and
consequently, I do not propose to deal with them in any detail particularly in view of the binding
authority of Kesavananda Bharati's case (supra).

101. Now a word about the 'theory of pith and substance' floated by the counsel for the
respondents in an effort to save from being declared invalid the provision of paragraphs 6 and 7
for want of ratification in terms of proviso to clause (2) of Article 368 of the Constitution of
India.

102. Support for the above submission was sought from two decision in Shankari Prasad Singh
Deo and others v. The Union of India and others26, and Sajjan Singh and others v. The State of
Rajasthan and others, AIR 1965 Supreme Court 845. The learned counsel for the respondents
relied on paragraph 14 from Shankari Prasad Singh's case (supra), and paragraph 14 from Sajjan
Singh's case (supra), which are in the following terms :-

Para 14 :

(from Shankari Prasad Singhs case, supra) :

        "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 31-A 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."

Para 14 : (from Sajjan Singh's case, supra) :

        "Thus, it would be seen that the genesis of the amendments made by Parliament in 1951,
        by adding Articles 31A and 31B to the Constitution, clearly, is to assist the State
        Legislatures in this country to give effect to the economic policy in which the party in
        power passionately believes to bring about much needed agrarian reform. It is with the
        same object that the second amendment was made by Parliament in 1955, and as we have
        just indicated, the object underlying the amendment made by the impugned Act is also the
        same. Parliament desires that agrarian reform in a broad and comprehensive sense must
        be introduced in the interests of a very large Section of Indian citizens who live in villages
        and whose financial prospects are integrally connected with the pursuit of progressive
        agrarian policy. 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. It is an Act the object of which is to amend the relevant Articles in Part III
        which confer fundamental rights on citizens and as such it falls under the substantive part
        of Article 368 and does not attract the provisions of clause (b) of the proviso. 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.
        But in the present case, there is no occasion to entertain or weigh the said considerations.
        Therefore, the main contention raised by the petitioners and the interveners against the
        validity of the impugned Act must be rejected."

Perusal of paragraph 14 from the judgment of Patanjali Sastri, J. in Shankari Prasad Singh's case
(supra) would show that his Lordship made it clear in that case that the amendments in question
sought to curtail some of the fundamental rights and thereby to make immune the agrarian
legislations. The amendments in no manner either directly or indirectly affected the powers of the
High Court under Article 226 of the Constitution and the Supeme Court under Article 136 of the
Constitution. In other words the Parliament sought to take away the very right - that the party
would seek the High Court or the Supreme Court to enforce. When the very right is taken away,
then what is left there with a party to invoke the jurisdiction of the Court. For he would have no
answer to the question from the Court, which right he was seeking the Court to enforce.

103. Chief Justice Gajendragadkar, in Sajjan Singh's case (supra) no doubt hinted at the 'theory of
pith and subtance', but be clearly held that the amendments in question did not in any manner
affect the jurisdiction of the High Court under Article 226 of the Constitution. And this much is
evident from the above quoted Paragraph 14 of his judgement and this aspect of the matter
becomes further clear from the following observations of Hidayatullah, J. (as his lordship then
was), who delivered a separate opinion of his own :-

        "I have had the privilege of reading the judgment just delivered by my lord the Chief
        Justice. I agree with him that there is no force in the contention that the 17th Amendment
        required for its valid enactment the special procedure laid down in the proviso to Article
        368. It would, of course, have been necessary if the amendment had sought to make a
        change in Article 226. This eventuality cannot be said to have arisen. Article 226 remains
        unchanged after the amendment. The proviso comes into play only when the article is
        directly changed or its ambit as such is sought to be changed. What the 17th Amendment
        does is to enlarge the meaning of the word 'estate' in Article 31-A and to give protection
        to some Acts passed by the State Legislatures by including them in the Ninth Schedule
        under the shield of Article 31-B. These Acts promoted agrarian reform and but for the
        inclusion in the Ninth Schedule they might be assailed by the provisions of Articles 14,
        19 or 31 of the Constitution. Some of the Acts were in fact successfully assailed but the
        amendment makes them effective and invulnerable to the three articles notwithstanding
        Article 13 of the Constitution. In Shankari Prasad's case, 1952 SCR 89 when the
        Constitution (First Amendment) Act was passed and Articles 31-A and 31-B and Ninth
        Schedule were introduced, the effect of that amendment on Article 226 was considered
        and it was held that the Amendment had not the effect visualised by the Proviso to Article
        368. The reasoning in that case on this point applies mutatis mutandis to the 17th
        Amendment."

104. Paragraph 7 of Tenth Schedule of the 52nd Amendment Act in my view directly affects the
jurisdiction of the High Court and the Supreme Court under Article 226 and Article 136 of the
Constitution of India, respectively, in that - when the Speaker by his order deprives a member of
his membership of the House, the Member is deprived from challenging the correctness and
legality of that order in the High Court under Article 226 and the Supreme Court under Article
136 of the Constitution of India.

105. In substance, paragraph 7 effects change in provisions of Article 226 and Article 136 of the
Constitution of India, as already shown.

106. The theory of pith and substance merely implies that the Parliament in exercise of its
constituent power just could not have amended the Constitution by way of adding another item
of disqualification in Article 102 and Article 191 of the Constitution without affecting the
jurisdiction of the High Court and the Supreme Court under Article 226 and Article 136 of the
Constitution and that the object of amendment was to prescribe a disqualification of the Member
for a given reason on account of some action and omission on his part, rather than to curtail the
jurisdiction of the High Court and the Supreme Court under Article 226 and Article 136 of the
Constitution respectively, as such. Such is not the case here. Parliament without detracting from
the jurisdiction of High Court and the Supreme Court under Article 226 and Article 136 of the
Constitution respectively could effect the amendment of the Constitution by adding the
additional disqualification in question.

107. For the reasons, aforementioned, I hold that the doctrine of pith and substance is not
attracted to the facts of the present case.

108. Now the next question that requires to be examined is that where the Bill affecting
Amendment to the Constitution is composite in character, in that - it partly amends or affects
such provisions of the Constitution as would require ratification by the State Legislatures and
partly such provisions of the Constitution as require no such ratification by the State Legislatures,
then 'whether such a Bill, as such, is to be ratified by the State Legislatures or only the provision,
which amends those provisions of the Constitution, which are referred to in proviso to clause (2)
of Article 368 of the Constitution of India ?

109. In my opinion only such amending provision, as amends the provision of any of the
Articles, referred to by the proviso to clause (2) of Article 368 of the Constitution that is required
to be ratified by the State Legislatures and not the entire Bill as such, although the entire Bill may
be transmitted to the State Legislatures to enable them to understand the context in which a
provision that required ratification had come to be enacted by the Parliament. If the entire Bill as
such was intended to be ratified as envisaged by the proviso in question, then the framers of the
Constitution would have substituted the words in the brackets for the underlined words :-
        "Provided that if such amendment (the Bill) also seeks to make any change in -

        (a) article 52, 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 (the Bill) 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 (the Bill) is presented to the President for assent."

In my opinion the proviso, in question envisages :-

        (a) ratification of only such a provision of Bill, as effects any change in the Articles and
        the provisions of the Constitution covered by the said proviso;

        (b) that such a ratification of the amendment must be secured before the Bill making
        provision for such amendemnt is presented to the President for his assent i.e. it excludes
        post facto ratification by the Legislatures of the State.

It means that a provision in the Bill, which seeks to make any change in any of the provisions
enumerated by the proviso to clause (2) of Article 368 of the Constitution, even when ratified by
the majority of the Legislatures of the State after the Bill containing the same had received assent
of the President, it would not be considered constitutionally valid. To acquire constitutional
validity such amending provisions should have received requisite ratification from the given
number of State Legislatures before the Bill containing such provisions had been assented to by
the President.

110. In view of the above, paragraph 7 of the Tenth Schedule having not been ratified by the
Legislatures of the State in terms of proviso to clause (2) of Article 368 of the Constitution, the
same is held to be invalid and is struck off as such from the Tenth Schedule.

111. The next question that falls for consideration is as to what is the effect of invalidity of
paragraph 7 on the remaining provisions of 52nd Amendment Act.

112. Mr. Shanti Bhushan, the learned counsel for the petitioners, argued that paragraph 7 is an
integral part of Fifty-Second Constitution Amendment, in - that the Parliament had intended that
if the menace of defection by the Members of the State Legislatures or of the two houses of the
Parliament was to be checked, then the orders of the Speaker passed in terms of paragraph 6
disqualifying such Members in terms of paragraph 2 should be made immune from any
challenge in the courts, including the High Courts and the Supreme Court. That such was the
intention of the Parliament, was sought to be substantiated by a reference to the speech of the
Law Minister, Mr. A.K. Sen in the House, (Lok Sabha Debates, Vol. 1, p. 186), who while
speaking on the Fifty-Second Amendment Bill said :-

        "The other questions are about the Speaker's authority. It was our clear intention from the
        very beginning that we are not going to allow this matter to be dilly-dallied and tossed
        about in the courts of law or in the Election Commission's Office. I had myself appeared
        in the Courts along with late Kanhaiya Lal Mishra Ji for winning our symbol. Babuji is
        there. He was the President of our party then. We used to go very regularly and Shri
        Siddhartha Shankar Ray was assisting me at that time. But the time we won back our
        symbol, it become worthless, becuase we had already won the election not on a pair of
        bullocks, but on a cow and a calf. Therefore, that type of delay should not be tolerated
        any more. We want a quick decision. If this Bill is to be effective and if defection is to be
        outlawed effectively, then we must choose a forum which will decide the matter fearlessly
        and expeditiously. This is the only forum that is possible. With these words I commend
        the Motion for consideration."

113. What is to be seen is as to whether in the absence of para 7, the Constitution (Fifty-Second
Amendment) Act, 4985 remains functional or not.

114. In my opinion, paragraph 7 is clearly severable and its non-existence would not in any
manner affect the working of the enactment, nor would it defeat, the basic underlying purpose of
the enactment in question.

115. Now the stage is set to consider the primary contention of Mr. Shanti Bhushan that
paragraph 2 of Tenth Schedule is ultra vires the constituent power of the Parliament as the said
paragraph was destructive of the three basic features of the Constitution earlier noted, which
form part of the basic structure of the Constitution.

116. So far as the question of paragraph 2 being destructive of two basic features of the
Constitution, namely - Federal character and the separation of powers between Legislature,
Executive and Judiciary, is concerned, it may be observed that this contention is noted only to be
rejected. Paragraph 2 even distantly makes no encroachment on the aforesaid allegedly two basic
features of the Constitution.

117. I have now to examine as to - whether 'democracy' or 'Parliamentary democracy' is a basic
feature of the Constitution and forms part of the basic structure of the Constitution and whether
paragraph 2 is destructive thereof.

118. In Kesavananda Bharati's case (supra) the Supreme Court has ruled that the basic structure
or basic frame-work of the Constitution cannot be eroded or destroyed by Parliament in exercise
of constituent power under Article 368 of the Constitution of India.

119. The question that has to be answered each time by the court, whenever an amendment of the
Constitution is challenged as being ultra vires the constituent power of Parliament, is as to
whether the given amendment erodes or destroys the basic structure of the Constitution. Before
one can answer that question - one must know as to what constitutes the basic structure or basic
frame-work of the Constitution.

120. The starting point of inquiry would be as - to "who has given the Constitution and to whom
?"

The quest for a civilized existence over a period led the human beings by trial and error method
to the discovery that real freedom in contra-distinction to absolute freedom is untenable without
orderly and settled collective existence in shaping and maintaining of which they as free
individuals would have a say. Orderly collective existence is achievable only when in every
matter there is only one decision and not as many decisions as are the individuals, who have
voice in the matter. That is possible only if decision is taken unanimously or by a majority or by
drawing of lots and then it is respected as if it was taken unanimously. Where individuals who
have a voice in the matter are so large and there are so many matters that call for a decision as to
make it utterly impossible to take all the decisions or to take such decisions in time, then out of
necessity there would occur a search for the alternative. The alternative suggests itself. The free
people would decide to select such number of them as their representative as would be able
conveniently to meet as often as the requirement of decision-making dictates. Free individuals, it
would necessarily follow, would like to select such representatives according to their free will
and choice and again either unanimously or by majority. The above unmistakably suggests
following basic formulations or assumptions :-

        (i) inter se equality among such individuals or citizens;

        (ii) right to life and liberty;

        (iii) decision-making either unanimously or by majority or by drawing of lots in case of a
        tie.

        (iv) accountability of the representatives to the people who had selected them;

        (v) the free people (either directly or through their representatives) deciding to create a
        body of fundamental laws for regulating their affairs-political, economic and social - from
        which it necessarily follows that they meant to be governed by laws and not by any one of
        them individually or by a group of them. The individuals could hold differing opinion as
        to what is the law, which they have to follow and bow to in a given situation. If their
        differences are not resolved, then it can lead to unsettled conditions and break-up of the
        fabric of their society that they had constructed. The law abiding disputants, inter alia
        when they are unable to settle the disputes mutually, would naturally elect to entrust the
        resolving of their disputes and differences to someone amongst themselves, who would
        inspire confidence in regard to his objectivity and fair-mindedness as also competency.

121. For the purpose of examining as to whether paragraph 2 is destructive of any of the basic
feature of the Constitution, our aforesaid theoretical inquiry that free people could have agreed to
live to be part of a collective orderly and settled existence only on the basis of there being mutual
agreement on the aforesaid inter alia basic postulates, need go no further.
122. Now, it is to be seen as to what extent the free people of this country had recognised the
aforesaid basic postulates or assumptions to be so by giving them a concrete shape in the
Constitution, which they gave to themselves on the 26th of January, 1950 :

Preamble to the Constitution, which admittedly had been voted upon by the Constituent
Assembly like any other provision of the Constitution in express terms records :

        "WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
        SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all
        its citizens :

        JUSTICE, social, economic and political;

        LIBERTY of thought, expression, belief, faith and worship :

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

        FRATERNITY assuring the dignity of the individual and the unity and integrity of the
        nation;

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

123. The implication of the above statement is clear and unambiguous that the people, who gave
the said Constitution to themselves were free and sovereign people. They also spelled out in all
solemnity the basic objectives, which by enacting the Constitution, they intended to achieve and
the kind of India they wanted to constitute and live in. Some of the theoretical postulates that I
had earlier spelled out, namely - Liberty, Equality, et cetera, find a mention in the Preamble.

124. Right to life and liberty received recognition in Article 21 of the Constitution. Right to
equality is recognised in Articles 14, 15, 16 and, 17 of the Constitution of India.

125. Recognition of the fact that the people would act through their representatives is envisaged
by Articles 79, 80, 81, 168, 169, 170 and 171; that their representatives shall take such decisions
on their behalf by a majority is recognised in Article 100 and Article 189 of the Constitution.

126. Article 99 and Article 188 envisages that Members of the two Houses of Parliament and the
Members of the Legislative Assembly or the Legislative Council of the State shall before taking
seat; shall make and subscribe before the President, as the case may be, the Governor, or some
person appointed in that behalf, by them, on oath or affirmation according to the form set out for
the purpose in the Third Schedule. A sample of said form reads as under :-

        "Form of oath or affirmation to be made by a member of parliament :-

        "I, A.B., having been elected (or nominated) a member of the Council of States (or the
        House of the People)
swear in the name  that I will

do of  God         bear

solemnly affirm

true faith and allegiance to the Constitution of India as by law established, that I will uphold the
soveregnty and integrity of India and that I will faithfully discharge the duty upon which I am
about to enter."

Clause (1) of Article 105 and Clause (1) of Article 194 in express terms say that Members of the
House shall enjoy freedom of speech in Parliament.

127. From the above, it is clear that the basic theoretical formulation that free people would
decide to live in an organised orderly settled collective existence only if the decisions concerning
them and their welfare and the affairs of the organization with which they have come to connect
themselves and have become integral part thereof, would be either taker by them freely or by
their freely selected representatives, enjoying similar freedom of choice in the matter, have found
recognition in the Constitution which have provided that every eligible person of 21 years of age
would be entitled to enroll as a voter and would participate in electing a Member to represent him
to the Legislative Assembly or Legislative Council of the State and to the Parliament; that such
elected or nominated Member of the House shall take oath before entering upon his seat inter
alia to abide and up-hold the Constitution of India and faithfully carry out his duty as a Member.

128. His primary duty, as I understand it, is to take part in the proceedings of the House, express
his opinion freely on matters that come up for consideration in the House and to cast his vote on
merits of a given case on the dictates of his conscience with a view to advance the public interest
as opposed to his personal and self interest.

129. In Smt. Indira Nehru Gandhi v. Shri Raj Narain27, H.R. Khanna, J., in paragraph 198 of
page 2349 observed :-

        "All the seven Judges who constituted the majority were also agreed that democratic set
        up was part of the basic structure of the Constitution. Democracy postulates that there
        should be periodical elections, so that people may be in a position either to re-elect the old
        representatives or, if they so choose to change the representatives and elect in their place
        other representatives. Democracy further contemplates that the elections should be free
        and fair, so that the voters may be in a position to vote for candidates of their choice.
        Democracy can indeed function only upon the faith that elections are free and fair and not
        rigged and manipulated, that they are effective instruments of ascertaining popular will
        both in reality and form and are not mere rituals calculated to generate illusion of
        deference to mass opinion. Free and fair elections require that the candidates and their
        agents should not resort to unfair means or malpractices as may impinge upon the process
        of free and fair elections...".

130. From the above observations of Khanna, J. it is clear that according to the ratio of
Kesavananda Bharati's case (supra) 'democracy' is the basic feature of the Constitution.
Democracy in its primary essence means a polity in which people govern themselves through
their freely elected representatives. It would not be a democratic polity in which people are not
free to elect their representatives in a free and fair manner or in which representatives so elected
are not free to take a decision where a decision is called from them. I, therefore, broadly agree
with Mr. Shanti Bhushan (subject to slight reservation, which would be presently mentioned)
when he contends that democracy envisages existence of a civilized society governed by self-
evolved laws; that the laws and norms that such a society evolves for its governance shall be
reflective of the views of the majority freely expressed. In other words the decision by majority
in a democratic society is inseparable from the concept of democracy. Parliamentary democracy
merely substitutes the participation of elected representatives of the citizens in the decision and
law-making process in place of entire citizenry whose participation as such due to increased
numbers of the citizens or the complexity of the situation may become impossible. The
Parliamentary democracy in its functioning therefore has to conform to the basic concept of
democracy hinted at above; i.e. that the elected representatives of the people are entitled not only
to the freedom of speech in the House, but also to the use of their vote in accordance with the
dictates of their conscience, that no control or restraint by anybody, authority, body of persons or
a political party, on whose tickets they may have been elected to the House, can be allowed to
dictate to the Member as to what he has to say in the House and how he has to exercise his vote,
because that would be destructive of the spirit of democracy. Law sanctioning any such
interference enacted by a State Assembly or Parliament would be unconstitutional as being
violative of the basic structure of the Constitution.

131. Mr. Shanti Bhushan also pressed into service views of such authors as Hermen-Finer from
his Book The Theory and Practice of Modern Government-IVth Edition; Mr. K.C. Wheare from
his Book Legislatures; Mr. Robert White from his Book American Government - Democracy at
Work, besides, referring us to a decision of the House of Lords in Amalgamated Society of
Railway and Osborne28, Mr. Shanti Bhushan placed pointed reliance in support of the submission
aforementioned on the underlined observations of Lord Shaw of Dunfermline :-

        "The position of a member of Parliament supported by the contributions of the society is
        accordingly this. As stated, (1) he is by the society's rules "responsible to" as well as paid
        by the society (2) he must have as a candidate signed and accepted the conditions of the
        Labour party; (3) while that party has its own policy he must accept its constitution, and
        "agree to abide" by the decisions of the parliamentary party in carrying out the aims on
        the constitution. Under these aims the first object of the constitution must be included,
        namely, maintaining the Parliamentary Labour party's own policy. Unless a member
        becomes bound to the society and to the Labour party by these conditions, and shapes his
        parliamentary action in conformity therewith, and with the decisions of the parliamentary
        party, he has broken his bargain. 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. (Emphasis added).

        It is no doubt true that a member, although party to such a contract of subjection, would in
        point of law enter Parliament a free man, because the law would treat as non-enforceable
        and void the contract which purported to bind him. And it is no doubt true that parties
        remaining outside of and making no appeal to the law, this subjection may arise in
        practice through the operation upon certain natures of various motives, including notably
        those of sycophancy or fear. But when the law is appealed to lend its authority to the
        recognition and enforcement of a contract to procure subjection of the character described
        with the concurrents of money payments and the sanctions of fines or forfeitures, the law
        will decline such recognition or enforcement because the contract appealed to is contrary
        to sound public policy. I should be sorry to think that these considerations are not quite
        elementary. Ana they apply with equal force not to labour organizations alone, which
        operate by administering under, it may be, careful supervision - the subscriptions of its
        members, but with even greater force to individual men, or organizations or trusts of men
        using capital funds to procure the subjection of members of Parliament to their
        commands. In this latter case, indeed, adhesion to the principle is of a value all the greater
        because its violation might be conducted in secret. It needs little imagination to figure the
        peril in which parliamentary government would stand if, either by the purchase of single
        votes, or by subsidies for regular support, the public wellbeing were liable to betrayal at
        the command and for the advantage of particular individuals or classes.

        It would be superfluous to note in detail how deeply embedded this principle is in the law
        of England on the subject of parliamentary government. On the subject of the
        predominating consideration Coke remarks (4 Inst. 14) ............ And it is to be observed,
        though one be chosen for one particular county or borough, yet when he is returned and
        sits in Parliament he serveth for the whole realm."

Blackstone in the passage cited in the Court below adopts the same language, and Locke's well-
known view in his second Essay on Civil Government is stamped with the authority of the great
commentator.

For my part, I look upon the whole of this doctrine as necessarily flowing from the fundamental
idea that Parliament, originally conceived as a body of advisers to the King, is free - free in its
election and free also in its advice. This fundamental idea of freedom has stood upon the Statute
Book for many centuries. By 3 Edw. 1, c5, it was enacted : "And because elections ought to be
free, the King commandeth upon great forfeitures that no man by force of arms, nor by malice or
menacing, shall disturb any to make free election". Of this statute, which Coke describes as
"excellently penned." he comments : "Now that electors might make free and due elections
without displeasure or fear thereof, by Act of Parliament, as a sure defence, the King
commandeth the same, upon grievous forfeiture." Another early and most cogent illustration is
that of 7 Hen. 4, c. 15, whereby it was provided that knights of shires for the Parliament were to
be chosen "libere et indifferenter sine prece out precepto."

It is no doubt true, my Lords, that the public records and the Statute Book shew that the
protections which were thrown around freedom were largely in the shape of securing the safety of
electors and constituencies in the exercise, without interruption, constraint, or corruption, of the
franchises they enjoyed. But all this would have been a mockery if, after purity and freedom had
been enjoined amongst electors and constituencies, the representative so elected was not himself
to be in the possession of his freedom in vote, advice, and action - not to be free, but to be bound,
bound under a contract, to submit these, freedom in vote, advice, and action - not to be free, but
for salary and at peril of loss, to the judgment of others. Locke clearly discerned the interrelation
of these two things. The latter, as well as the former, is ranked among those breaches of trust
which would amount to the very dissolution of government. The former is dealt with in the
phrases as to the action of the magistrate, "if he employs the force, treasure, and offices of the
society to corrupt the representatives or openly to pre-engage the electors, and prescribe what
manner of persons shall be chosen. For this to regulate candidates and electors and new model
the ways of election, what is it but to cut up the Government by the roots, and poison the very
fountain of Public security." The latter is dealt with in the remainder of the same sentence as
follows : "For the people having reserved to themselves the choice of their representatives, as
Lite 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."

These principles have been frequently subject to evasion and attack, sometimes open and
sometimes secret, but they have never been overthrown; and they apply to labourists' men, to
capitalists' men, or as in former times, to King's men. Whether they form one of the chief glories
of the Constitution, making this island "the envy of less happier lands", may be treated by the
constitutional historian; with that I have not here to do; but in my opinion they do form part of
the very body of our public law.

Granted, however, that no conditions are imposed subversive of or imperilling their freedom, it
will be observed that nothing that has been said attaches a taint or shadow of illegality to the
payment of members of Parliament. Such payment may be a tribute to character, or a recognition
of talent, coupled with a desire of that these should be secured for the service of the State, or it
may spring from a legitimate wish that the views, the needs, the perils of particular, and it may be
large, classes of His Majesty's subject should be expressed in Parliament by those who speak
with the authority of practical experience.

Thus far I accede to the powerful argument for the appellants. But when that argument was
pushed further, and especially to the two steps now to be noted, I must decline my assent. (1) It
was said that experience shews that men of high honour have felt themselves free to accept
obligations similar to those contained in the constitution of the Labour party, and that those
obligations have not in practical life proved restraints upon their independence, or manacles upon
their judgment. It may be that this is so, and its accord with one's experience of such men makes
the argument strong; and it may be also be that in such individual cases men stand so deservedly
high in the councils of the controlling party that no dissonance between their views and its views
will in practice arise. All this within the voluntary sphere is powerful. But in my opinion such
instances should not be allowed as an argument for legalizing the obligations of subjection to
which I have referred, or for imperilling the broad constitutional guarantees of freedom. (2) It
was argued that if individual classes were not to be allowed on their own terms to make payment
of members of Parliament their security from the possible dangers of such operations could only
be obtained at too high a price, namely, the payment of members as of right and from the public
treasury. I do not think such considerations clarify the legal solution or should weigh with a
Court of law.

In brief, my opinion accordingly is; the proposed additional rule of the society that "all
candidates shall sign and respect the conditions of the Labour Party, and be subject to their
'whip' the rule that candidates are to be "responsible to and paid by the society," and, in
particular, the provision in the constitution of the Labour party that "candidates and members
must accept the constitution, and agree to abide by the decision of the parliamentary party in
carrying out the aims of this constitution," are all fundamentally illegal, because they are in
violation of that sound public policy which is essential to the working of representative
government.

Parliament is summoned by the Sovereign to advise His Majesty freely. By the nature of the case
it is implied that coercion, constraint, or a money payment, which is the price of voting at the
bidding of others, destroys or imperils that function of freedom of advise which is fundamental in
the very constitution of Parliament. Inter alia, the Labour party pledge is such a price, with its
accompaniments of unconstitutional and illegal constraint or temptation.

Further, the pledge is an unconstitutional and unwarantable interference with the rights of the
constituencies of the United Kingdom. The Corrupt Practices Acts, and the proceedings of
Parliament before such Acts, were passed, were but machinery to make effective the fundamental
rule that the electors, in the exercise of their franchise, are to be free from coercion, constraint, or
corrupt influence; and it is they, acting through their majority, and not any outside body having
money power, that are charged with the election of a representative, and with the judgment on the
question of his continuance as such.

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. Accordingly, as it is put in the words of Fletcher Moulton
L.J., "Any other view of the fundamental principles of our law in this respect to my mind, leave
it open to any body of men of sufficient wealth or influence to acquire contractually the power to
exercise that authority to govern the nation which the law compels individuals to surrender only
to representatives that is, to men who accept the obligations and the responsibility of the trust
towards the public implied by that position."

132. Since the views expressed by the authors aforementioned, in regard to the right of a
Member of the House, to act in the House in accordance with the dictates of his own conscience,
find support in the aforesaid observation from the House of Lords, it is unnecessary to burden
this Judgment by quotations from their Books.

133. Mr. Shanti Bhushan has also contended that the existence of the political parties and their
role in the law-making process and the governance of the country has not been recognised by the
Constitution and, therefore, political parties or anybody on its behalf cannot exercise any control
whatsoever over the Members, who had been elected on its ticket in the discharge of their duty
and function, as such, in the House.

134. In opposition to Mr. Shanti Bhushan's above contention, equally extreme and untenable
stand appears to be taken by Mr. G. Ramaswamy and Mr. D. D. Thakur, when they contend that
the existence of political parties and their role in the governance is the only reality and the
freedom of expressions and vote in the House by the elected representatives adverted to by Mr.
Shanti Bhushan is a mere myth; that the elected representative ought to say in the House what the
party directs him to say and ought to exercise his vote in the House in accordance with the
dictates and directions of the party on whose ticket he had been elected to the House; that the
views of Burke and John Stuart Mill quoted by the given authors and projected by Mr. Shanti
Bhushan as constituting the essence of the democracy, refers to times when the political parties,
as we now know them, had not made their appearance and there stood no intermediary between
the representative and the electorate. They also sought support for the above view from such
authors as :

        "Parliamentary Government in England - by Harold J. Laski, Constitutional Government
        and Democracy - by Carl J. Fredricis; The People and the Constitution - by Cecil S.
        Emden; Cabinet Government - by Sir Ivor Jennings : Legislatures - by K.C. Wheare :
        Democratic Theory - by Givonni Sartori : Reflections on Government - by Ernest Barker :
        The Queen's Government - by Sir Ivor Jennings : The Theory and Practice of Modern
        Government - by Herman Finer and Government and Politics of Britain - by John P.
        Mackintosh."

135. In my view the important role that the political parties play in the governance of the country
and in the election of the Members of the Parliament and of the Legislative Assembly of the
States is all too evident to require to be buttressed by a reference to the views of celebrated
authors in this regard. One is, however, sceptical about accepting the extreme claim made on
behalf of the political party that a Member must always and in all respects feel bound to act in
accordance with the dictates of the political party in the discharge of his function and duties in
the House, as a Member of the House.

136. The extreme stand of Mr. Shanti Bhushan too does not commend to me notwithstanding the
forceful support, which he receives for his above submission from Mr. N.A. Palkhivala, the noted
jurist, who in his Book "Our Constitution Defaced and Defiled (1974 Ed.)" canvassed :-

        "No greater insult can be imagined to members of Parliament and the State legislatures
        than to tell them that once they become members of a political party, apart from any
        question of the party, apart from any question of the party may choose to take, the
        Constitution of India itself expects them to have no right to form judgment and no liberty
        to think for themselves, but they must become soulless and conscienceless entities who
        would be driven by their political party in whichever direction the party chooses to push
        them.
137. If it would amount to running away from reality, for Mr. Shanti Bhushan, the learned
counsel for the petitioners, to advocate that the existence of the political parties and the role
played by them in the governance of the country has not been recognized by the Constitution
and, therefore, elected representatives in the exercise of their functions, as such, cannot at all and
in any manner whatsoever be controlled or restrained by the political party of which they are
Members, it would also amount to total emasculation of elected representatives in the exercise of
their functions, as such, if on the other hand, the extreme proposition propounded by the counsel
for the respondents is to hold sway, for it would result in making of the elected representative a
mere rubber-stamp in the hands of the political parties and that in my view would be totally
destructive of his representative character and thus of democracy which is one of the basic
features of the Constitution and forms part on the basic structure of the Constitution.

138. There can be no gainsaying the fact that the existence of the political parties and their role in
elections and in the governance of the country is a reality, and the Constitution of India is not that
totally innocent of their existence as advocated by Mr. Shanti Bhushan. In this regard, I may refer
to the following observations of their Lordships of the Supreme Court in Kanhiya Lal Omar v.
R.K. Trivedi and others29,

        "It is true that till recently the Constitution did not expressly refer to the existence of
        political parties. But their existence is implicit in the nature of democratic form of
        Government which our country has adopted. The use of a symbol, be it a donkey or an
        elephant, does give rise to an unifying effect amongst the people with a common political
        and economic programme and ultimately helps in the establishment of a Westminster type
        of democracy which we have adopted with a Cabinet responsible to the elected
        representatives of the people who constitute the Lower House. The political parties have
        to be there if the present system of Government should succeed and the chasm dividing
        the political parties should be so profound that a change of administration would in fact be
        a revolution disguished under a constitutional procedure. It is no doubt a paradox that
        while the country as a whole yields to no other in its corporate sense of unity and
        continuity, the working parts of its political system are so organised on party basis - in
        other words, "on systematized differences and unresolved conflicts." That is the essence
        of our system and it facilitates the setting up of a Government by the majority. Although
        till recently the constitution had not expressly referred to the existence of political parties,
        by the amendments made to it by the Constitution Amendment) Act, 1985, there is now a
        clear recognition of the political parties by the Constitution. The Tenth Schedule to the
        Constitution which is added by the above Amending Act acknowledges the existence of
        political parties and sets out the circumstances when a member of Parliament or of the
        State Legislature would be deemed to have defected from his political party and would
        thereby be disqualified for being a member of the House concerned. Hence it is difficult
        to say that the reference to recognition, registration etc. of political parties by the Symbols
        Order is unauthorised and against the political system adopted by our country."

139. If the existence of the political party and the role that it plays in the governance of the
country is a reality, that does not mean that the elected representative of the people is to become a
mere tool in the hands of a political party. Free and fair voting in the basic and essential attribute
of democracy and thus a component part of basic structure of the Constitution, that the fact that
founding fathers of the Constitution were aware of this aspect of the democracy is evident from
the fact that they entrusted the conduct of the elections in the hands of an authority, known as the
Chief Election Commissioner whose authority and independence in its functioning they made
every effort to secure from outside interference, as is evident from the provisions of clauses (5)
and (6) of Article 324 of the Constitution, which are in the following terms :-

        "324. Superintendence, direction and control of elections to be vested in an Election
        Commission. - (1) to (4) ..... (5) Subject to the provisions of any law made by Parliament,
        the conditions of service and tenure of office of the Election Commissioners and the
        Regional Commissioners shall be such as the President may by rule determine :

        Provided that the Chief Election Commissioner shall not be removed from his office
        except in like manner and on the like grounds as a Judge of the Supreme Court and the
        conditions of service of the Chief Election Commissioner, shall not be varied to his
        disadvantage after his appointment :

        Provided further that any other Election Commissioner shall not be removed from office
        except on the recommendation of the Chief Election Commissioner."

        "Clause (6). The President or the Governor of a State, shall, when so requested by the
        Election Commission, make available to the Election Commission, or to a Regional
        Commissioner such staff as may be necessary for the discharge of the functions conferred
        on the Election Commission by clause (I)."

140. Parliament enacted Representation of People Act, 1951 (for short 'the 1951 Act') in exercise
of power under Article 327 of the Constitution of India. The provisions of Section 123 of the
1951 Act, enumerates corrupt practice in elections on the proof of which on the part of a
candidate envisages declaration of his election void. Chapter III of part VII of the 1951 Act
provides list of the electoral offences and also prescribes penalty and punishments therefor. If the
above-mentioned provisions of clauses (5) and (6) of Article 324 of the Constitution and the
above quoted provisions of 1951 Act were meant to effectively insure free and fair elections of
the representative, provisions of Article 105 and Article 194 were enacted by the authors of the
Constitution to insure his free functioning in the House to which he stands elected.

141. Insuring of 'absolute freedom of action' and expression to an individual or his representative
whilst living in an organized society is not only an impossibility, but is a mirage and an illusion.
The approach can be no different in regard to the functioning of an elected representative in the
House. The role of the umblical cord that binds him with the political party of which he is a
member and the role that the political party has come to play in the governance of the country
cannot be ignored altogether. Therefore, one has to strike a balance. It is impossible to achieve
the successful democratic governance of a country even of a small country, what to talk of the
country of the size of India, without the active involvement of the political parties. If a
representative elected not only on the ticket but also on the strength of the political ideology of
the party and the men and material resources thereof, is to renounce allegiance to his party, then
not only the political parties, as a sequence thereof, would become irrelevant, but it would also
become impossible to ensure stability of the government and in consequence freedom of the
country, more so in the case of a country like India, whose past history holds out ample proof of
the fact that it is the instability of its government, - in other words a weak government that had
been a standing invitation to invaders and the cause of the ultimate subjugation of this country.

142. That the defection from the political parties by Members elected to the House on their
tickets, could destablize the Government and that such defections by M.L.As. and M.Ps. which
was mostly for selfish reasons, has assumed grave proportions, is not a figment of imagination.
As per Report of the Committee on Defections (Part I), which was set up by the Government of
India in pursuance of a resolution, passed by the Lok Sabha on 8th December, 1967 - whereas
only 542 Members defected between First and Fourth General Elections, as many as 438
Members defected in twelve months between 1967 and 1968. As many as 116 Members out of
210 defecting Legislators were made Ministers. As a result of defections, a number of
governments fell and chaotic and instable conditions prevailed in number of such States. It was
in the wake of such conditions caused by defections of large number of Members mostly for self-
aggrandizement that the Parliament passed the following resolution on 8th December, 1967,
contained in the report of the Committee - "Committee on Defections - Part 1" :-

        "That House is of opinion that 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."

143. If the result of insuring absolute freedom of the kind to the elected representative is also, in
the ultimate result, to amount to the insuring of slavery of the country, then such absolute
freedom to the elected representative could never have been the prized objective of the framers
of the Constitution. At the same time, they could not have intended the snuffing out of the very
spirit of democratic functioning by authorising such an amendment of the Constitution as would
result in totally stifling the voice of the elected representative in the House and its translation into
action by voting in the House in accordance with the dictates of his conscience. If such had not
been the intention of the framers of the Constitution, then the insuring of freedom of speech in
the House by enacting Article 105 of the Constitution would hardly make any sense. For a
Member of the House would not only look foolish, but become an utter object of contempt and
malacious talk about his integrity if after having expressed views against a proposal before the
House he was to vote in favour of the proposal not because he had changed his views in the
meantime but because somebody had pressurised and dictated him to do so.

144. Any amendment of the Constitution that was to lead to such a result would be ultra vires the
basic structure of the Constitution as it would be destructive of democracy/parliamentary
democracy.
It is to be seen whether the Parliament by enacting paragraph intended such absolute curbs at the
instance of a political party on its members.

145. Before embarking upon the interpretation of paragraph 2 and 3 of Tenth Schedule, it is just
as well to make oneself aware of the principles and canons of interpretation that are kept in view
by the courts whilst interpreting a statute.

146. Judicial precedents and celebrated texts on interpretation gave primacy to two facts, which
in a sense are synonymous :

        (i) the purpose underlying the enactment of the statute;

        (ii) the intention of the Legislature.

In this regard notice may be taken in the first instance of the following passage from the
celebrated text of Statutory Construction by Crawford - at pages 269 and 271 - highlighting the
fact that it is the intent of the legislature which constitutes the law of any statute which should be
given effect to, even if it necessitates supplying of omissions :

        "But, inasmuch as it is the intention of the legislature which constitutes the law of any
        statute and since the primary purpose of construction is to ascertain that intention, such
        intention should be given effect, even if it necessitates the supplying of omissions,
        provided, of course, that this effectuates the legislative intention ......"

        ".... It would seem that only time the omitted case might be included within the statute's
        operation, would be when the legislature intended to include it but actually failed to use
        language which would, on its face, cover the omitted case. The inclusion would then be
        justified, if from the various intrinsic and extrinsic aids, the intent of the legislature to
        incorporate the omitted case, could be ascertained with a reasonable degree of
        certainty...."

Lord Blackburn in Charles Bradlaugh v. Clarke, (1883) vo. VIII, A.C. 354, expounded the same
view in the following words :

        "All statues are to be construed by the Courts so as to give effect to the intention which, is
        expressed by the words used in the statute. But that is not to be discovered by considering
        those words in the abstract, but by inquiring what is the intention expressed by those
        words used in a statute with reference to the subject-matter and for the object with which
        that statute was made; it being a question to be determined by the Court, and a very
        important one which was the object for which it appears that the statute was made."

The meaning of the words is to be found not so much in strict etymological propriety of
language, or even in popular use, as in the subject or occasion on which they are used and the
object that is intended to be attained. The subject-matter with which the legilature was legislating,
are legitimate topics to consider in ascertaining what was the object and purpose of the legislature
in passing the Act.
In Shiekh Gulfan and others v. Sant Kumar Ganguli30, it has been observed in this connexion by
their Lordships as follows :-

        "...often enough, in interpreting a statutory provision, it becomes necessary to have regard
        to the subject-matter of the statute and the object which it is intended to achieve. That is
        why in deciding the true scope and effect of the relevant words in any statutory provision,
        the context in which the words occur, the object of the statute in which the provision in
        included, and the policy underlying the statute assume relevance and become material..."

147. It is also settled principle of interpretation that literal or grammatical meaning of the words
and expressions used, particularly in the context of the Constitutional Law, is to be avoided,
where the literal meaning of the words used do not adequately convey the true purpose and intent
of the Legislature then the provision in question could be made worthy of conveying that intent
even if a word or two here or there is subtracted or added or even whole sentence is added or
subtracted therefrom. The following observations in this regard of Venkatarama Ayyar, J. in
Tirath Singh v. Bachittar Singh and others31 , clearly underscore the desirability of the above
indicated course of action in the given situation of textual inadequacy of the given provision :-

        "It is argued that if the language of the enactment is interpreted in its literal and
        grammatical sense, there could be no escape from the conclusion that parties to the
        petition are also entitled to notice under the proviso. But it is a rule of interpretation well-
        established that, 'where the language of a statute', in its ordinary meaning and
        grammatical construction, leads to a manifest contradiction of the apparent purpose of the
        enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not
        intended, a Construction may be put upon it which modifies the meaning of the words,
        and even the structure of the sentence."

148. It is also well recognized principle of construction that while construing a statute the courts
have to so read the provision of the Act as to steer it clear of the vice of unconstitutionality.

149. Paragraph 2 of Tenth Schedule, which is now required to be interpreted, is in the following
terms :-

        "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) 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.
Explantion. - 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 a 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 SubParagraph (3) of this paragraph."

Perusal of paragraph 2 would show that is envisages disqualification from membership of the
House on two grounds :-

        (i) voluntary resignation from the political party he (the member) belongs to;

        (ii) that he (the member) votes or abstains from voting in the House contrary to any
        direction issued by the Political party he belongs to, or any other person or authority
        authorised by it.
150. The basic purpose of enacting Fifty-second Constitution Amendment was to make it
difficult for the Member of the House to change sides. For such act of theirs can destablize the
democratic system. The defection for instance from opposition can pave the way for a one party
rule and eventually to one-man rule and the defection from the ruling party can lead to the fall of
the party Government. Frequent defections to and fro can make it difficult for any party
Government to function effectively. Such instability can grievously weaken the country. If the
Members were free to change sides that freely under the cover of their democratic right, then it
may lead to the extinction of democracy itself. Mr. Shanti Bhushan, it may be recorded,
therefore, readily and rightly conceded that paragraph 2(1) (a) was not destructive of
democracy/parliamentary democracy and thus of the basic structure of the Constitution and that
the said provision is constitutionally valid.

151. Now the next question that in the context of paragraph 2 falls for consideration is as to
whether provision of paragraph 2(1) (b) in its basic import was intended to serve the same
purpose as was sought to be achieved by paragraph 2(1) (a). In other words whether the
Parliament by enacting paragraph 2(1) (b) had intended to curb such voting or abstention from
voting on the part of the Members of the House, contrary to the direction issued by the political
party one belonged to, as would lead to such sinister results as had been cornprehended by me
while discussing the defection in the context of paragraph 2(1) (a).

152. Literal reading of the expression "any direction" occurring in paragraph 2(1) (b) would
mean each and every direction issued by the political party in regard to the voting in the House
by its Members. That such could not have been the intention would be presently shown.

153. From the respondents' side, at best it can be urged that the electors had elected the
candidates of a given party as they had faith in the social, political and economic ideology of the
party, which had sponsored them and by defecting, the Member would be betraying the trust of
his political party and the electorate, because as a result of his defection the party would not be
able to implement its policies.

154. But, it may be observed that it is not merely legislative measures that come up before the
House for consideration and which require Members to give their opinion by casting their votes.
The House, at times, has to consider the motion for impeaching high constitutional functionaries
like President of India, Judges of the Supreme Court and High Courts, Comptroller and Auditor
General of India and the Chief Election Commissioner of India, or the Motion for punishing a
person, for a contempt of the House. The decision of the House to impeach or punish arrived at
as a result of such motion being passed by the House with the given majority of votes, involves
exercise of Judicial functions of considerable magnitude and importance. In this no social,
economic or political ideology of a given party is involved. What is involved is the consideration
of a pure merits of a given case of impeachment or contempt of the House. In a case like this,
legitimately no whip can be and ought to be issued to its Members. Similarly, the presiding
officer of the House is supposed to act in a non-partisan manner. When a Speaker or Deputy
Speaker is to be elected by the Members, the political party; in my opinion should not issue any
direction to its Members to vote one way or the other, if a semblance of non-partisan character of
the office of Speaker and Deputy Speaker is to be maintained.
155. If the expression : "any direction" is to be construed in literal sense then the Political parties
would be entitled to give direction to their Members to vote in one way the other on a motion of
contempt, and impeachment as also regarding election of the Speaker and the Deputy Speaker,
which in my view, was not the purpose and object of the Parliament in enacting Fifty-Second
Constitution Amendment. Clause (b) of paragraph 2, in my opinion, could not be construed in
isolation. It must be interpreted in the context of clause (a).

156. Whilst enacting a statute or a given provision thereof, the Legislature had a purpose or an
objective in view. The courts have to divine the purpose and the intent that animated the
Legislature in enacting the given statute or its given provision. This intent is, no doubt, to be
gathered from within the four corners of the statute, Once that is done and the court becomes
aware as to the intent of the Legislature, then it has to interpret the relevant provision of the
statute in the light of the said awareness. I have already hinted at the basic purpose of enacting
Fifty-Second Constitution Amendment. The said intention of the Legislature too warrants against
the literal construction of the words : "any direction".

Hearings of Sections have at times been considered as key to the interpretation of the section. At
times, the 'headings' to the Sections are likened a preamble to the statute.

157. There are no two opinion that headings or titles prefixed to the Sections can be referred to in
construing an act of Legislature, although there are conflicting opinion as to what weight should
be attached to the headings, as is apparent from the various speeches of the Law Lords in
Director of Public Prosecutions v. Schildkamp32,

In Beswick v. Beswick33, the house of Lords used the cross-heading to limit the natural meaning
of the word 'property' in Section 56(1) of the Law of Property Act, 1925.

In Bhinka v. Charan Singh34 their Lordships whilst construing Section 180 of Uttar Pradesh
Tenancy Act, 1939, pressed into service the heading of the section.

158. The expression "defection" occurring in the heading of paragraph 2 also points to the
desirability of giving a narrow meaning to the words "any direction". The expression "defection"
in the Concise Oxford Dictionary (seventh Edition) gives the following meaning :-

        "falling away from allegience to leader, party, religion, or duty; desertion, esp. to another
        country etc."

159. If the expression : "any direction" is to be literally construed then it would make the people's
representative a wholly political party's representatives, which decidedly he is not. The Member
would virtually loose 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. Bhagwati, J. (as he then was) in Minerva
Mills Limited and others v. Union of India and others35, at P. 1838, in order to save Article 352,
Clause (5) (a) of the Constitution from being declared unconstitutional, read down the provision.
In this regard, the following observations are instructive :

        "It is true that by reason of clause (5) (a) of Article 352, the satisfaction of the President is
        made final and conclusive, and cannot be assailed on any ground, but as I shall presently
        point out, the power of judicial review is a part of the basic structure of the Constitution
        and hence this provision debarring judicial review would be open to attack on the ground
        that it is unconstitutional and void as damaging or destroying the basic structure. This
        attack against constitutionality can, however, be averted by reading the provision to mean
        - and that is how I think it must be read - that the immunity from challenge granted by it
        does not 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. Where,
        therefore, the satisfaction is absurd or perverse or mala fide or based on a wholly
        extraneous and irrelevant ground, it would be no satisfaction at all and it would be liable
        to be challenged before a Court, notwithstanding Clause (5) (a) of Article 352 ... ... ..."

160. When clause (b) of sub-paragraph (1) of paragraph 2 of Tenth Schedule is to be interpreted,
keeping in view the above principles of interpretation and when in my view, 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 proposed, 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
Articles 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.

161. Paragraph 2(b) when thus viewed cannot be considered to be destructive of the
parliamentary democracy, particularly when a Government which is truly unpopular and had lost
the confidence of the people, can be voted out, without the Members incurring disqualification in
terms of paragraph 2 as a result of exemption envisaged by paragraph 3. Hence, in my view, it
was within the constituent power of the Parliament to enact the abovesaid amending provision.

162. Now coming to the merits of the case, it may be observed that Mr. D. D. Thakur, the learned
counsel appearing for respondent No. 6 has argued that the order of the Speaker dated 8th May,
1986 (Annexure P-3) suffers from three infirmities :-

        (i) That the question of disqualification of the Members, in question, i.e. the petitioners,
        had not been referred to him and, therefore, there was no occasion for him to pass that
        order in terms of paragraph 6, read with paragraph 3 of Tenth Schedule;

        (ii) That the said order was void as it had been passed in violation of principles of natural
        justice, in that - the Leader of the original Akali Dal Legislature party or its President,
        Shri Surjit Singh Barnala, respondent No. 7, had not been given any opportunity of
        hearing before passing the said order; and

        (iii) That provisions of paragraph 3 were not at all attracted, so as to save the petitioners
        from disqualification in terms of paragraph 2, because there had not occurred any political
        split in the Shiromani Akali Dal, led by respondent No. 7, whereas provisions of
        paragraph 3 are attracted only when political split in the party had preceded the formation
        of the breakaway group of the said Legislature party.

163. Before proceeding to deal with the aforesaid contention, a reference to the provision of
paragraph 3 would be necessary :

        "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 membrs 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 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."

164. Dealing with the last ground of attack against order (Annexure P-3), first, it may be
observed that the expression "where a Member of a House makes a claim that he and any other
Member of Legislature party constitute the group representing a faction, which has arisen as a
result of split in his original political party" occurring in paragraph 3, almost in express terms is
suggestive of the fact that a split in the original political party must precede before a breakaway
group in the Legislature party can lay claim to represent the breakaway faction of the original
political party. The reason for prescribing political split of a party, as a condition precedent for
saving the Members belonging to the breakaway group of Legislature party from disqualification
in terms of paragraph 2 was intended in some measure to keep away personal aggrandisement as
the motive for the Member to resign from his party or to disobey the direction of his party,
envisaged in clause (b) of paragraph 2. The parliament, in my opinion, had intended that it must
be only for reasons of differences on matters of policy and ideology that a Member or group of
Members should be disassociating from their party, if they were to escape disqualification in
terms of paragraph 2. This, they tried to ensure by envisaging that there must have been a split in
the political party and the breakaway group of the Legislature party should be owing allegiance
to such breakaway faction of the original political party.

Mr. D.D. Thakur, however, canvassed that the expression 'split' envisages split to the party all
along the line, i.e. from the apex forum down to the lowest forum of the party. Mr. D.D. Thakur
also suggested that a split should be of a sizeable nature and that mere disassociation of
breakaway group of Legislature party from their political party would not constitute split in the
party.

165. The expression 'split' in the original political party is not amenable to a strait jacket
definition and it was perhaps for that reason that the Parliament had refrained from defining the
said expression. In other words the Parliament had intended a flexible approach whilst construing
the said expression. The reason is not far to seek. No standard or model constitution is prescribed
for the political parties, either by any statute or by any convention. - The political parties in India
are not even required to be registered. For the purpose of Tehsil-Schedule, the Parliament had not
even intended that the political party should have been a recognized National or State Level party
in terms of the Election Symbols (Reservation and Allotment) Order, 1968, issued, - vide
Notification No. S.O. 2959, dated the 31st August, 1968, in exercise of the powers conferred by
Article 324 of the Constitution, read with rule 5 and rule 10 of the Conduct of Elections Rule,
1961.

166. Without being exhaustive, in my opinion, the minimum requirement of 'split' in the political
party would be public disassociation from the political party and declaration of intention publicly
to form a breakaway party or an altogether a new party; that such disassociation from the original
political party be on account of ideological differences with the party, which are expressed
openly and publicly and the same are taken notice of, at least by the Press. However, the strength
of such breakaway faction of the political party and the standing in the original party of such
Members for the purpose of construing the expression 'political-split' would not be material. In
other words numerical strength of the breakaway faction may be virtually negligible.

167. Mr. Shanti Bhushan next argued that the use of the expression 'claim in paragraph 3' -
envisages that one-third or more Members of the original Legislature party had simply to make a
claim that they constitute a group, which represent a faction which had arisen as a result of a split
in the original political party and the Speaker had merely to satisfy himself as to the strength of
such a group and no more, while deciding the question as to whether persons making a claim are
saved from incurring the disqualification envisaged in paragraph 2.
168. I am afraid this contention cannot be accepted at its face value. If what Mr. Shanti Bhushan
has suggested to be the true import of the expression : 'claim' used in paragraph 3, then the
Speaker should accept the claim regarding the strength of the group, as claimed by the Member
without demur. This, even Mr. Shanti Bhushan does not suggest and he concedes that the
Speaker would be entitled to satisfy himself as to the correctness of the claim in regard to the
strength of the group whether by counting heads or otherwise.

In terms of paragraph 3 the Member in order to escape disqualification in terms of paragraph 2
makes two claims :-

        (i) That as a result of 'political split' in his original party a faction has arisen and
        breakaway group represents that faction :

and

        (ii) That the strength of the breakaway group is one-third of the original Legislature party.

If the Speaker has to satisfy himself regarding the strength of the breakaway Legislature group it
has also to satisfy himself whether they represent a faction that had arisen, as a result of the 'split'
in the political party.

169. The next question regarding the validity of order of the Speaker (Annexure P-3) that falls
for consideration is as to whether he could be considered to have been legally seized of the
matter in terms of paragraph 6(1) of the Tenth Schedule. In other words whether an occasion had
arisen for him to go into the question of disqualification of the petitioner ? It has been contended
by Mr. D. D. Thakur, the learned counsel for respondent No. 6 that the expression : "the question
shall be referred for the decision of the Chairman or as the case may be, the Speaker of such
House", occurring in paragraph 6 of Tenth Schedule, expressly envisages when read with the
portion that precedes it; that first the question whether a Member of a House has become subject
to disqualification, must arise for consideration and thereafter this question has to be referred for
the decision of the Chairman or the Speaker, as the case may be ?"

170. The language of paragraph 6 does not provide a clue as to person or authority, which is to
refer such a question to the Speaker or the Chairman, as the case may be. The language of
paragraph 6 is almost in pari materia with the language of clause (1) of Article 192 of the
Constitution of India and their Lordships in Brundaban Nayak's case (supra) had an occasion to
consider as to when such a question arises and who can refer it to the Governor for his decision.
The facts of that case were that the appellant-Brundaban Nayak was elected as a Member of the
Legislative Assembly of Orissa in 1961, and was appointed as one of the Ministers or the
Council of Ministers in the said State. On August 18, 1964, one of the respondents, namely, P.
Biswal applied to the Governor of Orissa alleging that the appellant Braundabad Nayak had
incurred a disqualification subsequent to his election under Article 191 (1) (e) of the
Constitution, read with Section 7 of the Representation of the People Act, 1951. On 10th
September, 1964, the Chief Secretary to the Government of Orissa forwarded the said complaint
to the Election Commission of India under the instructions of the Governor. In this
communication, the Chief Secretary stated that a question had arisen under Article 191(1) of the
Constitution whether the Member in question, had been subject to the disqualification alleged by
respondent No. 2 P. Biswal, and so he requested the Election Commission of India in the name of
the Governor to make such enquiries as it thought fit and give its opinion for communication to
the Governor to enable him to give decision on the question raised. On 17th November, 1964, the
respondent - Election Commission of India served a notice on Brundaban Nayak, who in
response to the said notice appeared before him through his counsel. He challenged the
competency of the Election Commission of India to inquire into the matter. The counsel for the
appellant sought an adjournment without submitting to the jurisdiction of the Election
Commission of India. The Election Commission of India declined adjournment and heard the
counsel for the respondent No. 2 and reserved its order and noted that its opinion would be
communicated to the Governor as early as possible. It was at that stage that Brundaban Nayak
filed a petition under Article 226 of the Constitution of India in the High Court, praying that the
inquiry which the Election Commission of India was holding should be quashed on the ground
that it was incompetent and without jurisdiction. The writ petition was summarily dismissed by
the High Court. The matter reached ultimately the Supreme Court.

171. The question raised on behalf of Brundaban Nayak by his counsel, Mr. Setalvad and which
fell for consideration by the Supreme Court was that no question could be said to have arisen as
to whether the appellant Brundaban Nayak became subject to any of the disqualification
mentioned in clause (1) of Article 191 of the Constitution of India, because such a question could
be raised only on the floor of the Legislative Assembly and could be raised by the Member of the
Assembly and not by any ordinary citizen or voter in the form of a complaint to the Governor. It
was urged by Mr. Setalvad that just as the question contemplated by Article 191, clause (3) could
be raised only on the floor of the House, so could the question about his subsequent
disqualification as a Member of Assembly be raised on the floor of the House and nowhere else.
Mr. Setalvad had also argued that the expression that if any question arises, it shall be referred for
the decision of the Governor suggests that there should be some referring authority, which would
make a reference of the question to the Governor for his decision. It was argued by Mr. Setalvad
that such a referring authority by necessary implication was the Speaker of the Legislative
Assembly.

172. Repelling the contention advanced by Mr. Setalvad, their Lordships observed as follows :-

Para 12 :

        "We are not impressed by these arguments. It is significant that the first clause of Article
        192 (1) does Dot permit of any limitations such as Mr. Setalvad suggests. What the said
        clause requires is that a question should arise; how it arises by whom it is raised, in what
        circumstances it is raised, are not relevant for the purpose of the application of this clause.
        All that is relevant is that a question of the type mentioned by the clause should arise; and
        so, the limitation which Mr. Setalvad seeks to introduce in the construction of the first part
        of Article 192 (1) is plainly inconsistent with the words used in the said clause.

Para 13 :

        "Then as to the argument based on the words "the question shall be referred for the
        decision of the Governor", these words do not import the assumption that any other
        authority has to receive the complaint and after a prime facie and initial investigation
        about the complaint, send it on or refer it to the Governor for his decision.

        ****

        ****

        If the intention was that the question must be raised first in the Legislative Assembly and
        after a prima facie examination by the Speaker it should be referred by him to the
        Governor, Article 192(1) would have been worded in an entirely different manner. We do
        not think there is any justification for reading such serious limitation in Article 192 (1)
        merely by implication.

        ****

        ****

        *** The object of Article 192 is plain. No person who has incurred any of the
        disqualifications specified by Article 191 (1), is entitled to continue to be a member of the
        Legislative Assembly of a State, and since the obligation to vacate his seat as a result of
        his subsequent disqualification has been imposed by the Constitution itself by Article 190
        (3) (a), there should be no difficulty in holding that any citizen is entitled to make a
        complaint to the Governor alleging that any member of the Legislative Assembly has
        incurred one of the disqualifications mentioned in Article 191 (1) and should, therefore,
        vacate his seat. The whole object of democratic elections is to constitute legislative
        chambers composed of members who are entitled to that status, and if any member
        forfeits that status by reason of a subsequent disqualification, it is in the interests of the
        constituency which such a member represents that the matter should be brought to the
        notice of the Governor and decided by him in accordance with the provisions of Article
        192 (2). Therefore, we must reject Mr. Setalvad's argument that a question has not arisen
        in the present proceedings as required by Article 192(1)."

173. From the above quoted observations of their Lordships, it is clear that the question of
disqualification could be raised by anybody before the Speaker.

174. The other question that falls for consideration is as to whether an occasion had arisen for the
petitioners to approach the Speaker and seek his decision in regard to the fact as to whether they
were or were not saved from incurring the disqualification envisaged by paragraph 2 ? In this
regard the following provisions of paragraph 3(b) and paragraph 8(a) are decisive of the
interpretive approach :

        "3(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."

        "8(a) the maintenance of registers or other records as to the political parties, if any, to
        which different members of the House belong;"

175. A perusal of provision of clause (b) of paragraph 3 would show that from the time of split,
breakaway faction shall be deemed to be the political party to which the breakaway group of the
Legislature party would belong for the purposes of sub-paragraph (1) of paragraph 2 and it is to
be his original political party for the purposes of paragraph 3. When such is the case, then the
moment the original party splits then such Member of the Legislature party of the original party
that owe allegiance to the breakaway faction are entitled to bring to the notice of the Speaker the
factum of the split of the original party, as also the factum of their owing allegiance to breakaway
faction of the original party in order to have the breakaway faction of the original political party
entered into the Register envisaged to be maintained by the Speaker, in terms of clause (a) of
paragraph 8, so that if any Member thereafter was to resign from the breakaway faction or was to
disregard the directions issued by such breakaway faction of the original political party, a
question could be raised regarding his disqualification to be a Member of the House in terms of
paragraph 2 of the Tenth Schedule. If the Members of the breakaway faction of the original
political party or the group of Members owing allegiance to such breakaway faction of the
original political party were to remain silent and the factum of split of the original political party
and the factum of some of the Members of the Legislature party owing allegiance to such break
away faction were not brought to the notice of the Speaker, then the situation would have
remained fluid and uncertain and the Members would not know as to whether they were to obey
the directions issued by the original political party or the one issued by the breakaway faction of
the original political party and would they be incurring disqualification in terms of clause (b) of
paragraph 2, while disobeying the directions issued by the original political party or the one
issued by the breakaway faction of the political party.

176. In view of the above, I am clearly of the view that the petitioners were well within their right
to apply to the Speaker to recognize the factum of split as also the factum of the petitioners
owing allegiance to such a breakaway faction of the political party and also decide as to whether
such members although having incurred disqualification in terms of paragraph 2, were or were
rot saved from such disqualification in terms of paragraph 3 of the Tenth Schedule.

177. The operative portion of their (petitioners) application (Annexure P-1) is in the following
words :-

        "We, the undersigned M.L.As who were elected on the Shiromani Akali Dal (L) ticket to
        the Punjab Vidhan Sabha, herewith give notice that as we have fundamental differences
        with Sardar Surjit Singh Barnala, the present leader of the Legislature party, on the issue
        of police entry into the holy prencincts of Sri Harmandir Sahib, we have decided to form
        a separate Legislative group of the Shiromani Akali Dal and would be grateful if you
        would recognize us and allocate us separate seats in the Punjab Vidhan Sabha. This is in
        consequence of a split in the political party. * * * *

        ****

Perusal of the contents of Annexures P-1 would show that the petitioners had brought to the
notice of the speaker both the facts i.e. political split in the party and the petitioners having
formed a separate group in the Legislative party which owed allegience impliedly to the
breakaway faction of the original political party. The Speaker gave his decision on 8th May, 1986
(Annexure P-3) on the said application of the petitioners, which is in the following terms :-

        "On 7th May, 1986, an application signed by 27-MLAs, elected to the Punjab Vidhan
        Sabha on the Shiromani Akali Dal (L) Ticket, was presented to me wherein they had
        stated that as a result of political split in their party (Shiromani Akali Dal-L) due to
        fundamental differences with S. Surjit Singh Barnala, their present leader, they have
        decided to form a separate group in the Punjab Vidhan Sabha.

Consequent upon the receipt of this notice, I asked them to present all the 27 members in my
office on 8th May, 1986, at 9.00 A.M. where I would like to ascertain individually whether they
had made this request under any duress or of their own free will.

Today, the 8th May, 1986, all the signatories to the application came to my chamber at 9.00 A.M.
and I gave an opportunity of being heard to each of the 27 members individually to ascertain
whether they had made this request under any duress or of their own free will. This process was
duly conducted and a declaration to the effect that the request for formation of this separate group
was made of their own free will, was signed individually in the presence of myself, the Secretary,
Punjab Vidhan Sabha. Mr. G.L. Kaul and Mr. Pritam Singh, Deputy Secretaries of the Sabha
Secretariat. The last mentioned three have individually witnessed the above-mentioned
declaration of each of the 27 individual members.

        "Therefore, under the provision contained in paragraph 3 of the Tenth Schedule of the
        Constitution of India, they do not incur any disqualification as it is a case of split in the
        party and they constitute a ground of more than 1/3rd members of the original Shiromani
        Akali Dal Legislature party whose effective strength (excluding the Speaker who is
        neutral) was 72.

        Further, I gave due recognition to the new group of 27 members as a separate political
        party and order that they be given separate seats in the Assembly."

178. A perusal of the aforesaid order would show that the Speaker felt satisfied that there had
been a split in the original political party; that the petitioners constituted a group in the
Legislature party and the strength of the group was more than one-third of the original Shiromani
Akali Dal Legislature party and consequently he recognized the new group as belonging to a
separate political party and ordered that they be given separate seats in the Assembly.

179. The next challenge to the order (Annexure P-3) is that this order is void ab initio as it had
been passed by the Speaker in violation of the principles of natural justice, in that the Speaker
neither issued notice to the original Shiromani Akali Dal party, nor to its President, S. Surjit
Singh Barnala, respondent No. 7, or gave any opportunity of hearing to him.

180. Mr. D.D. Thakur cited decisions both of Indian and English courts in order to substantiate
his contention that the order passed in violation of principles of natural justice is a mere nullity
and, therefore, the Speaker respondent No. 6 was well within his right to consider the question as
to whether the petitioners had become subject to the disqualification in terms of paragraph 2, as
alleged in the application submitted to him by respondent No. 7 and consequently, it was
legitimate for him to issue the impugned show cause notice to the petitioners. It was also
submitted that until and unless the Speaker had decided the question of the disqualification of the
petitioners, the application of S. Amarinder Singh (Annexure P-7) to be recognized the Leader of
the breakaway group was a little premature and, therefore, the application was rightly rejected by
the Speaker, - vide order (Annexure P-8).

181. No authority need be cited to establish the proposition that an order passed in violation of
the principles of natural justice is non est qua the party which had not been afforded an
opportunity of hearing, if that party had a right to be heard before the passing of the given order.
Hence, I do not wish to burden this judgment by going into the facts and ratio of the said
decisions.

182. So the primary question that in this regard falls for examination is as to whether Mr. Surjit
Singh Barnala, respondent No. 7 as the leader of the Akali Dal Legislature or the Akali Dal
Party, which he headed were necessary party to the proceedings initiated by the petitioner-
applicants, - vide their application (Annexure P-1).

183. In my opinion, Mr. Shanti Bhushan, the learned counsel for the petitioners, is right when he
submits that the principles of natural justice requires a party to be given an opportunity only in a
matter where the recognized legal rights of such party are going to be affected. The defection
from a political party may be the reason for the imposition of a penalty of disqualification on the
defecting Member in terms of the provisions of the Tenth-Schedule, but there is nothing in the
Tenth-Schedule to show that the political party is given any kind of legal rights in the matter. The
question of disqualification is a matter between the State/Nation as such and the Member
concerned, and the given provisions are intended merely to penalize a Member for an act which
is regarded as improper. It is only the right of a Nation or a State as such to have the Member
disqualified and not of the political party from which he might have defected. The Nation or the
State is represented by the Speaker and it is he who exercises the authority of the State to enforce
the penalty. The Speaker accordingly has to decide the question only after hearing the Member
concerned. No other person or party can be treated as a necessary party to any such proceedings.
It would be for the Speaker to determine in each case to collect the material from whichever
source he might think it likely to be available from. Any other person would stand in the position
only that of a witness and not necessarily that of a party.

In view of the above, it was not at all legally necessary to bear respondent No. 7 of any
representative of the Shiromani Akali Dal (Longowal) party and, therefore, the order (Annexure
P-3) does not suffer from any infirmity of the kind.

184. In the presence of this order (Annexure P-3) the action of respondent No. 6, the present
Speaker, in issuing the impugned show cause notice was clearly untenable and was without
jurisdiction in the face of order (Annexure P-3) the complaint by respondent No. 7 in his
application (Annexure P-5) to the effect that the petitioners had not obeyed the directions issued
by him to vote in a given manner in regard to the elections of the Speaker or the Deputy Speaker,
held on 2nd June, 1986, was not required to be taken notice of by respondent No. 6 muchless to
be persuaded to issue the impugned show cause notice to the petitioners. For the same reason, the
action of the Speaker, in my opinion, in rejecting the application of Shri Amarinder Singh
(Annexure P-7) to be recognized the Leader of the breakaway group in the Punjab Vidhan Sabha
was illegal, in that in view of the order dated 8th May, 1986, of his predecessor (Annexure P-3)
the respondent No. 6 had no option, but to recognize Shri Amarinder Singh, as the Leader of the
breakaway group, comprised of the petitioners. Because at least from 8th May, 1986 splinter
faction of Shiromani Akali Dal became separate political party and the Member elected as
Leader by the Members of the breakaway group of Akali Dal Legislature party that owed
allegiance to it became the Leader of the Akali Dal breakaway group.

185. Before closing the judgment, I may summarize the conclusion that I have reached :

        (a) That paragraph 2(b) after being read down envisages incurring of disqualification by a
        Member only when he votes or abstains from voting contrary to the direction of the
        political party on a motion of no confidence or a cut-motion on budgetary grant; that
        when so read, paragraph 2 is not destructive of Parliamentary democracy, which is a basic
        feature of the Constitution and forms part of the basic structure of the Constitution of
        India, nor is it destructive of two other alleged basic features of the constitution namely -

        (i) The Federal structure of the Constitution;

        (ii) separation of powers between three wings of the state, namely - Executive, Legislature
        and Judiciary.

        (b) Paragraph 6 does not in any manner affect the powers of the High Court and the
        Supreme Court under Article 226 and Article 136, respectively of the Constitution of
        India, and, therefore, this did not call for ratification in terms of Proviso to Clause (2) of
        Article 368 of the Constitution of India;

        (c) Paragraph 7 ousted the jurisdiction of the High Court under Article 226 and that of the
        Supreme Court under Article 136 of the Constitution of India in regard to all matters
        connected with the disqualification of a Member of the House under the Tenth Schedule,
        which expression comprehended within its fold the decision of the Speaker or, as the case
        may be, of the Chairman of the House rendered under sub-paragraph (1) of paragraph 6.
        Since Article 226 and Article 136 of the Constitution of India are 'enterenched provisions'
        and an amendment of these Articles to be constitutionally valid, has to be ratified in terms
        of the Proviso to Clause (2) of Article 368 of the Constitution and, such ratification
        admittedly having not been secured before the President gave assent to the Bill, the
        provisions of paragraph 7 are constitutionally invalid and, therefore, have to be struck
        down as constitutionally invalid and still-born provision;

        (d) That excepting Paragraph 7 of Tenth Schedule, the rest of the Act, in question, is
        constitutionally valid.

        (e) That the order of the Speaker dated the 8th of May, 1986 (Annexure P-3) is legal and
        valid.

        (f) That the Speaker, respondent No. 6, acted beyond his jurisdiction in entertaining the
        application of respondent No. 7 (Annexure P-5) and in issuing the impugned show cause
        notice (Annexure P-6).

        (g) That the Speaker, respondent No. 6, had no option but to accept the application
        (Annexure P-7) of Shri Amarinder Singh and recognize him as Leader of the breakaway
        group of the Akali Dal party in view of the order of his predecessor dated the 28th of
        May, 1986 (Annexure P-3) and that his order dated the 4th of July, 1986 (Annexure P-8),
        rejecting the application of Shri Amarinder Singh is illegal.

186. In the result, excepting paragraph 7 of Tenth Schedule, rest of the Constitution (Fifty-
Second Amendment) Act, 1985, is held to be constitutionally valid. Paragraph 7 of Tenth-
Schedule of the Constitution (Fifty-Second Amendment) Act, 1985, is struck down as
constitutionally invalid and still-born provision. The show cause notice dated 13th June, 1986
(Annexure P-6), issued by the Speaker, Shri Surjit Singh Minhas, respondent No. 6 and order
dated 4th July, 1986 (Annexure P-8) of Shri Surjit Singh Minhas, Speaker, respondent No. 6 are
quashed as being illegal, whilst the order dated 8th May, 1986 (Annexure P-3) of the respondent
No. 6 is held to be legal and valid. The Writ Petitions are disposed of accordingly. No costs.

H.N. Seth, C.J. and R.N. Mittal, J. :-

187. We have, carefully gone through the judgments of Tewatia, J. and Goyal, J.

188. Both the learned Judges have held that paragraph 6 of the Tenth Schedule of the
Constitution of India does not affect the powers of the High Court and Supreme Court under
Article 226 and Article 136 respectively of the Constitution of India and, therefore, the paragraph
did not require ratification under Article 368; that paragraph 7 ousts the jurisdiction of, the High
Court under Article 226 and that of the Supreme Court under Article 136 of the Constitution of
India and, therefore, it required ratification; and that, paragraph 7 is not constitutionally valid,
whereas the other provisions of the Amendment Act are valid.

189. We respectfully agree with the view expressed by them.

190. So far as quashing of the order, Annexure P-8, is concerned, both the learned Judges have
held that the same deserves to be quashed, but for different reasons. We agree that the order,
Annexure P-8, deserves to be set aside for the reasons given by Brother Goyal.

191. However, there is difference of opinion between the learned Judges on the following points :

        (a) Whether paragraph 2(b) should be read down in order to save it from being
        unconstitutional ?

        (b) Whether Annexure P-3, dated May 8, 1986 is an order within the purview of
        paragraph 6, if so whether it is legal and valid ? and
        (c) Whether the Speaker acted beyond jurisdiction in entertaining the application of
        Respondent (Annexure P-5) and issuing the impugned Show Cause Notice, Annexure P-6
        ?

192. On the aforementioned points as also generally we respectfully agree with the judgment
rendered by Goyal, J.

J.V. Gupta, J. :-

193. I have perused the judgments prepared by Brothers Tewatia and Goyal. I have also noted the
opinion expressed by Chief Justice and Brother R. N. Mittal. I entirely agree with the views
expressed by Brother Tewatia.

Order of the Court :

194. We hold that except for paragraph 7 of the Tenth Schedule, rest of the Constitution (Fifty-
second Amendment Act, 1985) is constitutionally valid; paragraph 7 of the Tenth Schedule of the
Constitution (Fifty-second Amendment Act, 1985) is struck down as constitutionally invalid and
still-born; the order of the Speaker, dated 4th of July, 1986 (Annexure P-8) is quashed; remaining
reliefs claimed in the petition are declined. The writ petitions are disposed of accordingly. Parties
are directed to bear their own costs.

Cases Referred.

1AIR 1965 SC 1892
2AIR 1971 SC 1093
3AIR 1962 SC 1621
4AIR 1947 PC 60
5AIR 1951 SC 458
6AIR 1973 SC 1401
7AIR 1975 SC 2299
8(1910) A.C. 87
9AIR 1996 SC 111
10AIR 1980 SC 1789
111985-1 (89) PLR 222
12AIR 1973 SC 1401
13AIR 1965, S.C. 1892
14AIR 1971 SC 1093
15AIR 1954 SC 520
161987(1) S.L.R. 182, CWP 12437 of 1985, decided on 9th December, 1986
17(1957)II All England Reporter 796
181969 (2) A.C. 147
19 AIR 1950 SC 188
20AIR 1977 SC 2155
21AIR 1956 SC 231
22AIR 1961 SC 1669
23AIR 1963 SC 677
24AIR 1963 SC 874
25AIR 1965 SC 1595
26AIR 1951 SC 458
27AIR 9975 SC 2299
28(1910) AC. 87
29AIR 1986 SC 111
30AIR 1965 SC 1839
31AIR 1955 SC 830
32(1969) 3 All England Reporter 1640 (HL)
33 (1967) 2 All England Reporter 1197 (HL)
34AIR 1959 SC 960
35AIR 1980 SC 1789