Back
1991 Supreme(SC) 802
SUPREME COURT OF INDIA
L.M. Sharma, M.N. Venkatachaliah, J.S. Verma, K. Jayachandra Reddy and S.C. Agrawal, JJ.
Kihota Hollohon - Petitioner
Versus
Zachilhu and others - Respondents
Transfer Petition (Civil) No. 40 of 1991
Decided On : 12-11-1991
Headnote:
Bill resulting in the Constitution Act, 1985 – Constitution of India - Articles 226 and 227 - Jurisdiction of all courts - Challenge to the decision - In view Bill resulting in Constitution Act, 1985 it was required to be ratified by legislatures of not less than one-half of the States as a condition precedent before the Bill could be presented to President for assent, in accordance with mandatory special procedure prescribed in proviso to clause (2) of Article 368 for exercise of the constituent power - Without ratification by specified number of State legislatures stage for presenting Bill for assent of President did not reach and, therefore so-called assent of President was non and did not result in Constitution standing amended in accordance with the terms of the Bill -Held, That paragraph Tenth Schedule, to the extent it seeks to impart finality to the decision of Speakers/Chairmen is valid - But concept of statutory finality embodied in paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of Constitution insofar as infirmities based on violations of constitutional mandates, mala fides, non-compliance with rules of Natural Justice and perversity, are concerned - That deeming provision in paragraph 6 Tenth Schedule attracts an immunity analogous to that in Articles 122 and 212 Constitution as understood and explained in Singh case1 to protect the validity of proceedings from mere irregularities of procedure - Deeming provision, having regard to words ?be deemed to be proceedings in Parliament proceedings in legislature of a State? confines scope of the fiction accordingly - That contention that the investiture of adjudicatory functions in Speakers/Chairmen would by itself vitiate provision on the ground of likelihood of political bias is unsound and is rejected - Speakers/Chairmen hold a pivotal position in scheme of parliamentary democracy and are guardians of the rights and privileges of the House - They are expected to and do take far reaching decisions in the functioning of parliamentary democracy of power to adjudicate questions under Tenth Schedule in such constitutional functionaries should not be considered exceptionable - In view we take of the validity of paragraph 7 it is unnecessary to pronounce on the contention that judicial review is a basic structure of Constitution and paragraph 7 of the Tenth Schedule violates such basic structure - However, having regard to Constitutional Scheme in Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen - Having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no actions are permissible only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence – petition disposal
JUDGMENT :
L.M. Sharma and J.S. Verma, JJ.
1. For the reasons to be given in our detailed judgment to follow, our operative conclusions in the minority opinion on the various constitutional issues are as follows:
(1) Para 7 of the Tenth Schedule, in clear terms and in effect excludes the jurisdiction of all courts, including the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 to entertain any challenge to the decision under para 6 on any ground even of illegality or perversity, not only at an interim stage but also after the final decision on the question of disqualification on the ground of defection.
(2) Para 7 of the Tenth Schedule, therefore, in terms and in effect, makes a change in Article 136 in Chapter IV of Part V; and Articles 226 and 227 in Chapter V of Part VI of the Constitution, attracting the proviso to clause (2) of Article 368.
(3) In view of para 7 in the Bill resulting in the Constitution (Fifty-second Amendment) Act, 1985 it was required to be ratified by the legislatures of not less than one-half of the States as a condition precedent before the Bill could be presented to the President for assent, in accordance with the mandatory special procedure prescribed in the proviso to clause (2) of Article 368 for exercise of the constituent power. Without ratification by the specified number of State legislatures, the stage for presenting the Bill for assent of the President did not reach and, therefore, the so-called assent of the President was non est and did not result in the Constitution standing amended in accordance with the terms of the Bill.
(4) In the absence of ratification by the specified number of State legislatures before presentation of the Bill to the President for his assent, as required by the proviso to clause (2) of Article 368, it is not merely para 7 but, the entire Constitution (Fifty-second Amendment) Act, 1985 which is rendered unconstitutional, since the constituent power was not exercised as prescribed in Article 368, and therefore, the Constitution did not stand amended in accordance with the terms of the Bill providing for the amendment.
(5) Doctrine of Severability cannot be applied to a Bill making a constitutional amendment where any part thereof attracts the proviso to clause (2) of Article 368.
(6) Doctrine of Severability is not applicable to permit striking down para 7 alone saving the remaining provisions of the Bill making the constitutional amendment on the ground that para 7 alone attracts the proviso to clause (2) of Article 368.
(7) Even otherwise, having regard to the provisions of the Tenth Schedule of the Constitution inserted by the Constitution (Fifty-second Amendment) Act, 1985, the Doctrine of Severability does not apply to it.
(8) Democracy is a part of the basic structure of the Constitution and free and fair elections with provision for resolution of disputes relating to the same as also for adjudication of those relating to subsequent disqualification by an independent body outside the House are essential features of the democratic system in our Constitution. Accordingly, an independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House is envisaged as an attribute of this basic feature. The tenure of the Speaker who is the authority in the Tenth Schedule to decide this dispute is dependent on the continuous support of the majority in the House and, therefore, he (the Speaker) does not satisfy the requirement of such an independent adjudicatory authority; and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature.
(9) Consequently, the entire Constitution (Fifty-second Amendment) Act, 1985 which inserted the Tenth Schedule together with clause (2) in Articles 102 and 191, must be declared unconstitutional or an abortive attempt to so amend the Constitution.
(10) It follows that all decisions rendered by the several Speakers under the Tenth Schedule must a
