Topic: Shri Kihota Hollohon vs Mr. Zachilhu And Others
Shri Kihota Hollohon vs Mr. Zachilhu And Others
Equivalent citations: AIR 1993 SC 412, JT 1992 (1) SC 600, 1992 (1) SCALE 338 - Bench: L M Sharma, M V Verma, K J Reddy, S Agrawal - 18 February, 1992
M.N. Venkatachaliah, J.
1. In these petitions the constitutional validity of the Tenth Schedule of the Constitution introduced by the Constitution (Fifty-Second Amendment) Act, 1985, is assailed. These two cases were amongst a batch of Writ Petitions, Transfer Petitions, Civil Appeals, Special Leave Petitions and other similar and connected matters raising common questions which were all heard together. On 12.11.1991 we made an order pronouncing our findings and conclusions upholding the constitutional validity of the amendment and of the provisions of the Tenth Schedule, except for Paragraph 7 which was declared invalid for want of ratification in terms of and as required by the proviso to Article 368(2) of the Constitution. In the order dated 12.11.1991 our conclusions were set out and we indicated that the reasons for the conclusions would follow later. The reasons for the conclusions are now set out.
2. This order is made in Transfer Petition No. 40 of 1991 and in Writ Petition No. 17 of 1991. We have not gone into the factual controversies raised in the Writ-Petition before the Gauhati High Court in Rule No. 2421 of 1990 from which Transfer Petition No. 40 of 1991 arises. Indeed, in the order of 12th November, 1991 itself the said Writ Petition was remitted to the High Court for its disposal in accordance with law.
3. Shri F.S. Nariman, Shri Shanti Bhushan, Shri M.C. Bhandare, Shri Kapil Sibal, Shri Sharma and Shri Bhim Singh, learned Counsel addressed arguments in support of the petitions. Learned Attorney-General, Shri Soli J. Sorabjee, Shri R.K. Garg and Shri Santhosh Hegde sought to support the constitutional validity of the amendment. Shri Ram Jethmalani has attacked the validity of the amendment for the same reasons as put forward by Shri Sharma.
4. Before we proceed to record our reasons for the conclusions reached in our order dated 12th November, 1991, on the contentions raised and argued, it is necessary to have a brief look at the provisions of the Tenth Schedule. The Statement of Objects and Reasons appended to the Bill which was adopted as the Constitution (Fifty-Second Amendment) Act, 1985 says:
The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance.
On December 8, 1967, the Lok Sabha had passed an unanimous Resolution in terms following:
a high-level Committee consisting of representatives of political parties and constitutional experts be set up immediately by Government to consider the problem of legislators changing their allegiance from one party to another and their frequent crossing of the floor in all its aspects and make recommendations in this regard." The said Committee known as the "Committee on Defections" in its report dated January 7, 1969, inter-alia, observed:
Following the Fourth General Election, in the short period between March 1967 and February, 1968, the Indian political scene was characterised by numerous instances of change of party allegiance by legislators in several States. Compared to roughly 542 cases in the entire period between the First and Fourth General Election, at least 438 defections occurred in these 12 months alone. Among Independents, 157 out of a total of 376 elected joined various parties in this period. That the lure of office played a dominant part in decisions of legislators to defect was obvious from the fact that out of 210 defecting legislators of the States of Bihar, Haryana, Madhya Pradesh, Punjab, Rajasthan, Uttar Pradesh and West Bengal, 116 were included in the Council of Ministers which they helped to bring into being by defections. The other disturbing features of this phenomenon were: multiple acts of defections by the same person or set of persons (Haryana affording a conspicuous example); few resignations of the membership of the legislature or explanations by individual defectors, indifference on the part of defectors to political proprieties, constituency preference or public opinion; and the belief held by the people and expressed in the press that corruption and bribery were behind some of these defections
The Committee on Defections recommended that a defector should be debarred for a period of one year or till such time as he resigned his seat and got himself re-elected from appointment to the office of a Minister including Deputy Minister or Speaker or Deputy Speaker, or any post carrying salaries or allowances to be paid from the Consolidated Fund of India or of the State or from the funds of Government Undertakings in public sector in addition to those to which the defector might be entitled as legislator. The Committee on Defections could not, however, reach an agreed conclusion in the matter of disqualifying a defector from continuing to be a Member of Parliament/State Legislator.
Keeping in view the recommendations of the Committee on Defections, the Constitution (Thirty-Second Amendment) Bill, 1973 was introduced in the Lok Sabha on May 16, 1973. It provided for disqualifying a Member from continuing as a Member of either House of Parliament or the State Legislature on his voluntarily giving up his membership of the political party by which he was set up as a candidate at such election or of which he became a Member after such election, or on his voting or abstaining from voting in such House contrary to any direction issued by such political party or by any person or authority authorised by it in this behalf without obtaining prior permission of such party, person or authority. The said Bill, however, lapsed on account of dissolution of the House. Thereafter, the Constitution (Forty-eighth Amendment) Bill, 1979 was introduced in the Lok Sabha which also contained similar provisions for disqualification on the ground of defection. This Bill also lapsed and it was followed by the Bill which was enacted into the Constitution (Fifty-Second Amendment) Act, 1985.
5. This brings to the fore the object underlying the provisions in the Tenth Schedule. The object is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy. The remedy proposed is to disqualify the Member of either House of Parliament or of the State Legislature who is found to have defected from continuing as a Member of the House. The grounds of disqualification are specified in Paragraph 2 of the Tenth Schedule.
Paragraph 2(1) relates to a Member of the House belonging to a political party by which he was set up as a candidate at the election. Under Paragraph 2(1)(a) such a Member would incur disqualification if he voluntarily gives up his membership of such political party. Under Clause (b) he would incur the disqualification if he votes or abstains from voting in the House contrary to "any direction" issued by the political party to which he belongs or by any person or authority authorised by it in this behalf without obtaining, in either case, prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. This sub para would also apply to a nominated Member who is a Member of a political party on the date of his nomination as such Member or who joins a political party within six months of his taking oath. Paragraph 2(2) deals with a Member who has been elected otherwise than as a candidate set up by any political party and would incur the disqualification if he joins any political party after such election. A nominated Member of a House would incur his disqualification under sub para (3) if he joins any political party after the expiry of six months from the date of which he takes his seat.
6. Paragraphs 3 and 4 of the Tenth Schedule, however, exclude the applicability of the provisions for disqualification under para 2 in cases of "split" in the original political party or merger of the original political party with another political party.
These provisions in the Tenth Schedule give recognition to the role of political parties in the political process. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of Paragraph 2(1)(a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his Membership of the legislature and go back before the electorate. The same yard stick is applied to a person who is elected as an Independent candidate and wishes to join a political party after the election.
Paragraph 2(1)(b) deals with a slightly different situation i.e., a variant where dissent becomes defection. If a Member while remaining a Member of the political party which had set him up as a candidate at the election, votes or abstains from voting contrary to "any direction'' issued by the political party to which he belongs or by any person or authority authorised by it in this behalf he incurs the disqualification. In other words, it deals with a Member who expresses his dissent from the stand of the political party to which he belongs by voting or abstaining from voting in the House contrary to the direction issued by the political party.
Paragraph 6 of the Tenth Schedule reads:
6(1) If any question arises as to whether a Member of a House has become subject to disqualification under this Schedule the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such house and his decision shall be final: Provided that where the question which has arisen is as to whether the Chairman or the . Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such Member of the House as the House may elect in this behalf and his decision shall be final.
(2) All proceedings under sub-Paragraph (1) of this Paragraph in relation to any question as to disqualification of a Member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State within the. meaning of Article 212." Paragraph 7 says:
7. Bar of jurisdiction of courts: Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a Member of a House under this Schedule.
7. The challenge to the constitutional validity of the Amendment which introduces the Tenth Schedule is sought to be sustained on many grounds. It is urged that the constitutional Amendment introducing Paragraph 7 of the Tenth Schedule, in terms and in effect, seeks to make a change in Chapter IV of Part V of the Constitution in that it denudes the jurisdiction of the Supreme Court under Article 136 of the Constitution of India and in Chapter V of Part VI in that it takes away the jurisdiction of the High Courts under Article 226 and that, therefore, the legislative Bill, before presentation to the President for assent, would require to be ratified by the Legislature of not less than one half of the States by resolution to that effect. In view of the admitted position that no such ratification was obtained for the Bill, it is contended, the whole Amending Bill -- not merely Paragraph 7 - fails and the amendment merely remains an abortive attempt to bring about an amendment. It is further contended that the very concept of disqualification for defection is violative of the fundamental values and principles underlying Parliamentary democracy and violates an elected representative's freedom of speech, right to dissent and freedom of conscience and is, therefore, unconstitutional as destructive of a basic feature of the Indian Constitution. It is also urged that the investiture in the Speaker or the Chairman of the power to adjudicate disputed defections would violate an important incident of another basic feature of the Constitution, viz., Parliamentary democracy. It is contended that an independent, fair and impartial machinery for resolution of electoral disputes is an essential and important incident of democracy and that the vesting of the power of adjudication in the Speaker or the Chairman -- who, in the Indian Parliamentary system are nominees of political parties and are not obliged to resign their party affiliations after election - is violative of this requirement.
It is alternatively contended that if it is to be held that the amendment does not attract the proviso to Article 368(2), then Paragraph 7 in so far as it takes away the power of judicial review, which, in itself, is one of the basic features of the Constitution is liable to be struck down.
8. There are certain other contentions which, upon a closer examination, raise issues more of construction than constitutionality. For instance, some arguments were expended on the exact connotations of a "split" as distinct from a "defection" within the meaning of Paragraph 3. Then again, it was urged that under Paragraph 2(b) the expression "any direction" is so wide that even a direction, which if given effect to and implemented might bring about a result which nay itself be obnoxious to and violative of constitutional ideals and values would be a source of disqualification. These are, indeed, matters of construction as to how, in the context in which the occasion for the introduction of the Tenth Schedule arose and the high purpose it is intended to serve, the expression "any direction'' occurring in Paragraph 2(b) is to be understood. Indeed, in one of the decisions cited before us Prakash Singh Badal and Ors. v. Union of India and Ors. this aspect has been considered by the High Court. The decision was relied upon before us. We shall examine it presently.
9. Supporting the constitutionality of the Amendment, respondents urge that the Tenth Schedule creates a non-justiciable constitutional area dealing with certain complex political issues which have no strict adjudicatory disposition. New rights and obligations are created for the first time inflate by the Constitution and the Constitution itself has envisaged a distinct constitutional machinery for the resolution of those disputes. These rights, obligations and remedies, it is urged, which are in their very nature and innate complexities are in political thickets and are not amenable to judicial processes and the Tenth Schedule has merely recognised this complex character of the issues and that the exclusion of this area is constitutionally preserved by imparting a finality to the decisions of the Speaker or the Chairman and by deeming the whole proceedings as proceedings within Parliament or within the Houses of Legislature of the States envisaged in Articles 122 and 212, respectively, and further by expressly excluding the Courts' jurisdiction under Paragraph 7.
Indeed, in constitutional and legal theory, it is urged, there is really no ouster of jurisdiction of Courts or of Judicial Review as the subject-matter itself by its inherent character and complexities is not amenable to but outside judicial power and that the ouster of jurisdiction under Paragraph 7 is merely a consequential constitutional recognition of the non-amenability of the subject-matter to the judicial power of the State, the corollary of which is that the Speaker or the Chairman, as the case may be, exercising powers under Paragraph 6(1) of the Tenth Schedule function not as a statutory Tribunal but as a part of the State's Legislative Department. It is, therefore, urged that no question of the ouster of jurisdiction of Courts would at all arise inasmuch as in the first place, having regard to the political nature of the issues, the subject-matter is itself not amenable to judicial power. It is urged that the question in the last analyses pertains to the Constitution of the House and the Legislature is entitled to deal with it exclusively.
10. It is further urged that Judicial Review -- apart from Judicial Review of the legislation as inherent under a written Constitution - is merely a branch of administrative law remedies and is by no means a basic feature of the Constitution and that, therefore, Paragraph 7, being a constitutional provision cannot be invalidated on some general doctrine not found in the Constitution itself.
11. On the contentions raised and urged at the hearing the questions that fall for consideration are the following:
(A) The Constitution (Fifty-Second Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule is destructive of the basic structure of the Constitution as it is violative of the fundamental principles of Parliamentary democracy, a basic feature of the Indian constitutionalism and is destructive of the freedom of speech, right to dissent and freedom of conscience as the provisions of the Tenth Schedule seek to penalize and disqualify elected representatives for the exercise of these rights and freedoms which are essential to the sustenance of the system of Parliamentary democracy.
(B) Having regard to the legislative history and evolution of the principles underlying the Tenth Schedule, Paragraph 7 thereof in terms and in effect, brings about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India and, therefore, the Bill introducing the amendment attracts the proviso to Article 368(2) of the Constitution and would require to be ratified by the legislative of the States before the Bill is presented for Presidential assent.
(C) In view of the admitted non-compliance with the proviso to Article 368(2) not only Paragraph 7 of the Tenth Schedule, but also the entire Bill resulting in the Constitution (Fifty-Second Amendment) Act, 1985, stands vitiated and the purported amendment is abortive and does not in law bring about a valid amendment. Or whether, the effect of such non-compliance invalidates Paragraph 7 alone and the other provisions which, by themselves, do not attract the proviso do not become invalid.
(D) That even if the effect of non-ratification by the legislature of the States is to invalidate Paragraph 7 alone, the whole of the Tenth Schedule fails for non-severability. Doctrine of severability, as applied to ordinary statutes to promote their constitutionality, is inapplicable to constitutional Amendments.
Even otherwise, having regard to legislative intent and scheme of the Tenth Schedule, the other provisions of the Tenth Schedule, after the severance and excision of Paragraph 7, become truncated, and unworkable and cannot stand and operate independently. The Legislature would not have enacted the Tenth Schedule without Paragraph 7 which forms its heart and core.
(E) That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts the immunity under Articles 122 and 212. The Speaker and the Chairman in relation to the exercise of the powers under the Tenth Schedule shall not be subjected to the jurisdiction of any Court.
The Tenth Schedule seeks to and does create a new and non-justiciable area of rights, obligations and remedies to be resolved in the exclusive manner envisaged by the Constitution and is not amenable to, but constitutionally immune from curial adjudicative processes.
(F) That even if Paragraph 7 erecting a bar on the jurisdiction of Courts is held inoperative, the Courts' jurisdiction is, in any event, barred as Paragraph 6(1) which imparts a constitutional 'finality' to the decision of the Speaker or the Chairman, as the case may be, and that such concept of 'finality' bars examination of the matter by the Courts.
(G) The concept of free and fair elections as a necessary concomitant and attribute of democracy which is a basic feature includes an independent impartial machinery for the adjudication of the electoral disputes. The Speaker and the Chairman do not satisfy these incidents of an independent adjudicatory machinery. The investiture of the determinative and adjudicative jurisdiction in the Speaker or the Chairman, as the case may be, would, by itself, vitiate the provision on the ground of reasonable likelihood of bias and lack of impartiality and therefore denies the imperative of an independent adjudicatory machinery. The Speaker and Chairman are elected and hold office on the support of the majority party and are not required to resign their Membership of the political party after their election to the office of the Speaker or Chairman.
(H) That even if Paragraph 7 of the Tenth Schedule is held not to bring about a change or affect Articles 136, 226 and 227 of the Constitution, the amendment is unconstitutional as it erodes and destroys judicial review which is one of the basic features of the Constitution.
12. Re: Contention (A):
The Tenth Schedule is part of the Constitution and attracts the same canons of construction as are applicable to the expounding of the fundamental law. One constitutional power is necessarily conditioned by the others as the Constitution is one "coherent document". learned Counsel for the petitioners accordingly say that the Tenth Schedule should be read subject to the basic features of the Constitution. The Tenth Schedule and certain essential incidents of democracy, it is urged, cannot co-exist.
In expounding the processes of the fundamental law, the Constitution must be treated as a logical-whole. Westel Woodbury Willoughby in the "Constitutional law of the United States" states:
The Constitution is a logical whole, each provision of which is an integral part thereof, and it is, therefore, logically proper, and indeed imperative, to construe one part in the light of the provisions of the other parts.
2nd Edn: Vol. 1 page 65)
A constitutional document outlines only broad and general principles meant to endure and be capable of flexible application to changing circumstances - a distinction which differentiates a statute from a Charter under which all statutes are made. Cooley on "Constitutional Limitations:" says:
Upon the adoption of an amendment to a constitution, the amendment becomes a part thereof; as much so as if it had been originally incorporated in the Constitution; and it is to be construed accordingly.
[8th Edn. Vol. I page 129]
13. In considering the validity of a constitutional amendment the changing and the changed circumstances that compelled the amendment are important criteria. The observations of the U.S. Supreme Court in Maxwell v. Dow 44 Lawyer's Edition 597 at page 605 are worthy of note:
...to read its language in connection with the known condition of affairs out of which the occasion for its adoption may have arisen and then to construe it, if there be therein any doubtful expressions, in a way so far as is reasonably possible, to forward the known purpose or object for which the amendment was adopted....
The Report of the Committee on Defections took note of the unprincipled and unethical defections induced by considerations of personal gains said:
...What was most heartening was the feeling of deep concern over these unhealthy developments in national life on the part of the leaders of political parties themselves. Parliament mirrored this widespread concern....
14. It was strenuously contended by Shri Ram Jethmalani and Shri Sharma that the provisions of the Tenth Schedule constitute a flagrant violation of those fundamental principles and values which are basic to the sustenance of the very system of Parliamentary democracy. The Tenth Schedule, it is urged, negates those very foundational assumptions of Parliamentary democracy; of freedom of speech; of the right to dissent and of the freedom of conscience. It is urged that unprincipled political defections may be an evil, but it will be the beginning of much greater evils if the remedies, graver than the disease itself, are adopted. The Tenth Schedule, they say, seeks to throw away the baby with the bath-water. learned Counsel argue that "crossing the floor", as it has come to be called, mirrors the meanderings of a troubled conscience on issues of political morality and to punish an elected representative for what really amounts to an expression of conscience negates the very democratic principles which the Tenth Schedule is supposed to preserve and sustain. learned Counsel referred to the famous Speech to the Electors of Bristol, 1774, where Edmund Burke reportedly said:
It ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unmerited attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions to theirs -- and above all, ever, and in all cases, to prefer their interest to his own. But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living.... Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.
[See: Parliament Functions, Practice & Procedures by JAG Griffith and Michael Ryle 1989 Edn. page 70]
15. Shri Jethmalani and Shri Sharma also relied upon certain observations of Lord Shaw in Amalgamated Society of Railway Servants v. Osborne 1910 A.C.87 to contend that a provision which seeks to attach a liability of disqualification of an elected Member for freely expressing his views on matters of conscience, faith and political belief are indeed restraints on the freedom of speech -- restraints opposed to public policy. In that case a registered trade union framed a rule enabling it to levy contributions on the Members to support its efforts to obtain Parliamentary representation by setting up candidates at elections. It also framed a rule requiring all such candidates to sign and accept the conditions of the Labour Party and be subject to its whip. The observations in the case relied upon by learned Counsel are those of Lord Shaw of Dunfermline who observed:
Take the testing instance: should his view as to right and wrong on a public issue as to the true line of service to the realm, as to the real interests of the constituency which has elected him, or even of the society which pays him, differ from the decision of the parliamentary party and the maintenance by it of its policy, he has come under a contract to place his vote and action into subjection not to his own convictions, but to their decisions. My Lords, I do not think that such a subjection is compatible either with the spirit of our parliamentary Constitution or with that independence and freedom which have hitherto been held to lie at the basis of representative government in the United Kingdom.
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....
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....
It is relevant to observe here that the rule impugned in that case was struck down by the Court of Appeal -- whose decision was upheld by the House of Lords -- on grounds of the Society's competence to make the rule. It was held that the rule was beyond its powers. Lord Shaw, however, was of the view that the impugned rule was opposed to those principles of public policy essential to the working of a representative Government. The view expressed by Lord Shaw was not the decision of the House of Lords in that case.
But, the real question is whether under the Indian constitutional scheme is there any immunity from constitutional correctives against a legislatively perceived political evil of unprincipled defections induced by the lure of office and monetary inducements?
16. The points raised in the petitions are, indeed, far-reaching and of no small importance - invoking the 'sense of relevance of constitutionally stated principles to unfamiliar settings'. On the one hand there is the real and imminent threat to the very fabric of Indian democracy posed by certain levels of political behaviour conspicuous by their utter and total disregard of well recognised political proprieties and morality. These trends tend to degrade the tone of political life and, in their wider propensities, are dangerous to and undermine the very survival of the cherished values of democracy. There is the legislative determination through experimental constitutional processes to combat that evil. On the other hand, there are, as in all political and economic experimentations, certain side-effects and fall-out which might affect and hurt even honest dissenters and conscientious objectOrs. These are the usual plus and minus of all areas of experimental legislation. In these areas the distinction between what is constitutionally permissible and what is outside it is marked by a 'hazy gray-line' and it is the Court's duty to identity, "darken and deepen" the demarcating line of constitutionality -- a task in which some element of Judges' own perceptions of the constitutional ideals inevitably participate. There is no single litmus test of constitutionality. Any suggested sure decisive test, might after all furnish a "transitory delusion of certitude" where the "complexities of the strands in the web of constitutionality which the Judge must alone disentangle" do not lend themselves to easy and sure formulations one way or the other. It is here that it becomes difficult to refute the inevitable legislative element in all constitutional adjudications.
17. All distinctions of law -- even Constitutional law - are, in. the ultimate analyses, "matters of degree". At what line the 'white' fades into the 'black' is essentially a legislatively perceived demarcation.
In his work "Oliver Wendell Holmes - Free Speech and the Living Constitution" (1991 Edition: New York University Publication) Pohlman says:
All distinctions of law, as Holmes never tired of saying, were therefore "matters of degree." Even in the case of constitutional adjudication, in which the issue was whether a particular exercise of power was within or without the legislature's authority, the judge's decision "will depend on a judgment or intuition more subtle than any articulate major premise." As the particular exertion of legislative power approached the hazy gray line separating individual rights from legislative powers, the judge's assessment of constitutionality became a subtle value judgment. The judge's decision was therefore not deductive, formal, or conceptual in any sense.
Justice Holmes himself had said:
Two widely different cases suggest a general distinction, which is a clear one when stated broadly. But as new cases cluster around the opposite poles, and begin to approach each other, the distinction becomes more difficult to trace; the determination are made one way or the other on a very slight preponderance of feeling, rather than articulate reason; and at last a mathematical line is arrived at by the contact of contrary decisions, which is so far arbitrary that it might equally well have been drawn a little further to the one side or to the other.
[See: "Theory of Torts" American Law Review 7 (1873)]
The argument that the constitutional remedies against the immorality and unprincipled chameleon-like changes of political hues in pursuit of power and pelf suffer from something violative of some basic features of the Constitution, perhaps, ignores the essential organic and evolutionary character of a Constitution and its flexibility as a living entity to provide for the demands and compulsions of the changing times and needs. The people of this country were not beguiled into believing that the menace of unethical and unprincipled changes of political affiliations is something which the law is helpless against and is to be endured as a necessary concomitant of freedom of conscience. The onslaughts on their sensibilities by the incessant unethical political defections did not dull their perception of this phenomenon as a canker eating into the vitals of those values that make democracy a living and worth-while faith. This is preeminently an area where judges should defer to legislative perception of and reaction to the . pervasive dangers of unprincipled defections to protect the community.' 'Legislation may begin where an evil begins." Referring to the judicial philosophy of Justice Holems in such areas, Pohlman again says:
A number of Holme's famous aphorisms point in the direction that judges should defer when the legislature reflected the pervasive and predominant values and interests of the community. He had, for example, no "practical" criterion to go on except "what the crowd wanted." He suggested, in a humorous vein that his epitaph.... No judge ought to interpret a provision of the Constitution in a way that would prevent the American people from doing what it really wanted to do. If the general consensus was that a certain condition was an "evil" that ought to be corrected by certain means, then the government had the power to do it: "Legislation may begin where an evil begins"; "Constitutional law like other mortal contrivances has to take some changes...." "Some play must be allowed to the joints if the machine is to work." All of these rhetorical flourishes suggest that Holmes deferred to the legislature if and when he thought it accurately mirrored the abiding beliefs, interests, and values of the American public.
[See: Justice Oliver Wendell Holmes -- Free Speech and the Living Constitution by H.L. Pohlman 1991 Edn. page 233]
18. Shri Sharma contends that the rights and immunities under Article 105(2) of the Constitution which according to him are placed by judicial decisions even higher than the fundamental-right in Article 19(1)(a), have violated the Tenth Schedule. There are at least two objections to the acceptability of this contention. The first is that the Tenth Schedule does not impinge upon the rights or immunities under Article 105(2). Article 105(2) of the Constitution provides:
105. Powers, privileges, etc., of the Houses of Parliament and of the Members and committees thereof.- (1) ...
(2) No Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of cither House of Parliament of any report, paper, votes or proceedings.
The freedom of speech of a Member is not an absolute freedom. That apart, the provisions of the Tenth Schedule do not purport to make a Member of a House liable in any 'Court' for anything said or any vote given by him in Parliament. It is difficult to conceive how Article 105(2) is a source of immunity from the consequences of unprincipled floor-crossing.
Secondly, on the nature and character of electoral rights this Court in Jyoti Basu and Ors. v. Debi Ghosal and Ors. observed:
A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they arc, and therefore, subject to statutory limitation.
Democracy is a basic feature of the Constitution. Whether any particular brand or system of Government by itself, has this attribute of a basic feature, as long as the essential characteristics that entitle a system of government to be called democratic are otherwise satisfied is not necessary to be gone into. Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the Constitution. So is the need to protect and sustain the purity of the electoral process. That may take within it the quality, efficacy and adequacy of the machinery for resolution of electoral disputes. From that it does not necessarily follow that the rights and immunities under sub-Article (2) of Article 105 of the Constitution, are elevated into fundamental rights and that the Tenth Schedule would have to be struck down for its inconsistency with Article 105(2) as urged by Shri Sharma.
19. Parliamentary democracy envisages that matters involving implementation of policies of the Government should be discussed by the elected representatives of the people. Debate, discussion and persuasion arc, therefore, the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not unoften the views expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy. At times such an expression of views during the debate in the House may lead to voting or abstinence from voting in the House otherwise than on party lines.
But a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles. Any freedom of its Members to vote as they please independently of the political party's declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance -- nay, indeed, its very survival. Intra-party debates are of course a different thing. But a public image of disparate stands by Members of the same political party is not looked upon, in political tradition, as a desirable state of things. Griffith and Ryle on "Parliament, Functions, Practice & Procedure" (1989 Edn. page 119) say;
Loyalty to party is the norm, being based on shared beliefs. A divided party is looked on with suspicion by the electorate. It is natural for Members to accept the opinion of their Leaders and Spokesmen on the wide variety of matters on which those Members have no specialist knowledge. Generally Members will accept majority decisions in the party even when they disagree. It is understandable therefore that a Member who rejects the party whip even on a single occasion will attract attention and more criticism than sympathy. To abstain from voting when required by party to vote is to suggest a degree of unreliability. To vote against party is disloyalty. To join with others in abstention or voting with the other side smacks of conspiracy.
Clause (b) of sub-para (1) of Paragraph 2 of the Tenth Schedule gives effect to this principle and sentiment by imposing a disqualification on a Member who voles or abstains from voting contrary to "any directions" issued by the political party. The provision, however, recognises two exceptions: one when the Member obtains from the political party prior permission to vote or abstain from voting and the other when the Member has voted without obtaining such permission but his action has been condoned by the political party. This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting contrary to the direction of the party to which he belongs. This, in itself again, may provide a clue to the proper understanding and construction of the expression "Any Direction" in Clause (b) of Paragraph 2(1) -- whether really all directions or whips from the party entail the statutory consequences or whether having regard to the extra-ordinary nature and sweep of the power and the very serious consequences that flow including the extreme penalty of disqualification the expression should be given a meaning confining its operation to the contexts indicated by the objects and purposes of the Tenth Schedule. We shall deal with this aspect separately.
20. The working of the modern Parliamentary democracy is complex. The area of the inter-sc relationship between the electoral constituencies and their elected representatives has many complex features and overtones. The citizen as the electorate is said to be the political sovereign. As long as regular general elections occur, the electorate remains the arbiter of the ultimate composition of the representative legislative body to which the Government of the day is responsible. There are, of course, larger issues of theoretical and philosophical objections to the legitimacy of a representative Government which might achieve a majority of the seats but obtains only minority of the electoral votes. It is said that even in England this has been the phenomenon in every general elections in this century except the four in the years 1900, 1918, 1931 and 1935.
But in the area of the inter-relationship between the constituency and its elected representative, it is the avowed endeavour of the latter to requite the expectations of his voters. Occasionally, this might conflict with his political obligations to the political party sponsoring him which expects - and exacts in its own way - loyalty to it. This duality of capacity functions are referred to by a learned author thus:
The functions of Members are of two kinds and flow from the working of representative government. When a voter at a general election, in that hiatus between parliaments, puts his cross against the name of the candidate he is [most often] consciously performing two functions: seeking to return a particular person to the house of commons as Member for that constituency; and seeking to return to power as the government of the country a group of individuals of the same party as that particular person. The voter votes for a representative and for a government. He may know that the candidate he votes has little chance of being elected....
When a candidate is elected as a Member of the House of Commons, he reflects those two functions of the voter. Whatever other part he may play, he will be a constituency M.P. As such, his job will be to help his constituents as individuals in their dealings with the departments of State. He must listen to their grievances and often seek to persuade those in authority to provide remedies. He must have no regard to the political leanings of his constituents for he represents those who voted against him or who did not vote at all as much as those who voted for him. Even if he strongly disagrees with their complaint he may still seek to represent it, though the degree of enthusiasm with which he does so is likely to be less great.
[See: Parliament -- Functions, Practice and Procedures by JAG Griffith and Ryle -- 1989 Edn. page 69].
So far as his own personal views on freedom of conscience are concerned, there may be exceptional occasions when the elected representative finds himself compelled to consider more closely how he should act. Referring to these dilemma the authors say;
... The first is that he may feel that the policy of his party whether it is in office or in opposition, on a particular matter is not one of which he approves. He may think this because of his personal opinions or because of its special consequences for his constituents or outside interests or because it reflects a general position within the party with which he cannot agree. On many occasions, he may support the party despite his disapproval. But occasionally the strength of his feeling will be such that he is obliged to express his opposition either by speaking or by abstaining on a vote or even by voting with the other side. Such opposition will not pass unnoticed and, unless the matter is clearly one of conscience, he will not be popular with the party whips. The second complication is caused by a special aspect of parliamentary conduct which not frequently transcends party lines. Members, who are neither Ministers nor front-bench Opposition spokesmen, do regard as an important part of their function the general scrutiny of Governmental activity. This is particularly the role of select committees which have, as we shall see, gained new prominence since 1979. No doubt, it is superficially paradoxical to see Members on the Government side of the House joining in detailed criticism of the administration and yet voting to maintain that Government in office. But as one prominent critic of government has said, there is nothing inherently contradictory in a Member sustaining the Executive in its power or helping it to overcome opposition at the same time as scrutinising the work of the executive in order both to improve it and to see that power is being exercised in a proper and legitimate fashion.
[pages 69 and 70]
Speaking of the claims of the political party on its elected Member Rodney Brazier says: "Once returned to the House of Commons the Member's party expects him to be loyal. This is not entirely unfair or improper, for it is the price of the party's label which secured his election. But the question is whether the balance of a Member's obligations has titled too far in favour of the requirements of party. The nonsense that a Whip -- even a three-line whip -- is no more than a summons to attend the House, and that, once there, the Member is completely free to speak and vote as he thinks fit, was still being put about, by the Parliamentary Private Secretary to the Prime Minister, as recently as 1986. No one can honestly believe that. Failure to vote with his party on a three-line whip without permission invites a party reaction. This will range (depending on the circumstances and whether the offence is repeated) from a quiet word from a Whip and appeals to future loyalty, to a ticking-off or a formal reprimand (perhaps from the Chief Whip himself), to any one of a number of threats. The armoury of intimidation includes the menaces that the Member will never get ministerial office, or go on overseas trips sponsored by the party, or be nominated by his party for Commons committee Memberships, or that he might be deprived of his party's whip in the House, or that he might be reported to his constituency which might wish to consider his behaviour when reselection comes round again.... Does the Member not enjoy the Parliamentary privilege of freedom of speech? How can his speech be free in the face of such party threats? The answer to the inquiring citizen is that the whip system is part of the conventionally established machinery of political organisation in the house, and has been ruled not to infringe a Member's parliamentary privilege in any way. The political parties are only too aware of the utility of such a system, and would fight in the last ditch to keep it."
[See; Constitutional Reform - Reshaping the British Political System by Rodney Brazier, 1991 Edn. pages 48 and 49].
The learned author, referring to cases in which an elected Member is seriously unrepresentative of the general constituency opinion, or whose personal behaviour falls below standards acceptable to his constituents commends that what is needed is some additional device to ensure that a Member pays heed to constituents' views. Brazier speaks of the efficacy of device where the constituency can recall its representative. Brazier says: "What sort of conduct might attract the operation of the recall power? First, a Member might have misused his Membership of the House, for example to further his personal financial interests in a manner offensive to his constituents. They might consider that the action taken against him by the house (or, indeed, lack of action) was inadequate... Thirdly, the use of a recall power might be particularly apt when a Member changed his party but declined to resign his seat and fight an immediate by-election. It is not unreasonable to expect a Member who crosses the floor of the House, or who joins a new party, to resubmit himself quickly to the electors who had returned him in different colours. Of course, in all those three areas of controversial conduct the ordinary process of reselection might well result in the Member being dropped as his party's candidate (and obviously would definitely have that result in the third case). But that could only occur when the time for reselection came; and in any event the constituency would still have the Member representing them until the next general election. A cleaner and more timely parting of the ways would be preferable. Sometimes a suspended sentence does not meet the case.
[p. 52 and 53.]
Indeed, in a sense an anti-defection law is a statutory variant of its moral principle and justification underlying the power of recall. What might justify a provision for recall would justify a provision for disqualification for defection. Unprincipled defection is a political and social evil. It is perceived as such by the legislature. People, apparently, have grown distrustful of the emotive political exultations that such floor-crossings belong to the sacred area of freedom of conscience, or of the right to dissent or of intellectual freedom. The anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct -- whose awkward erosion and grotesque manifestations have been the base of the times -- above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation. We should, we think, defer to this legislature wisdom and perception. The choices in constitutional adjudications quite clearly indicate the need for such deference. "Let the end be legitimate, let it be within the scope of the Constitution and all means which are appropriate, which are adopted to that end..." are constitutional. See Kazurbach v. Morgan: 384 US
21. It was then urged by Shri Jethmalani that the distinction between the conception of "defection" and "split" in the Tenth Schedule is so thin and artificial that the differences on which the distinction rests are indeed an outrageous defiance of logic. Shri Jethmalani used that if floor-crossing by one Member is an evil, then a collective perpetration of it by l/3rd of the elected Members of a party is no better and should be regarded as an aggravated evil both logically and from the part of its aggravated consequences. But the Tenth Schedule, says Shri Jethmalani, employs its own inverse ratiocination and perverse logic to declare that where such evil is perpetrated collectively by an artificially classified group of not less than l/3rd Members of that political party that would not be a "defection" but a permissible "split" or "merger."
This exercise to so hold-up the provision as such crass imperfection is performed by Shri Jethmalani with his wonted forensic skill. But we are afraid what was so attractively articulated, on closer examination, is, perhaps, more attractive than sound. The underlying premise in declaring an individual act of defection as forbidden is that lure of office or money could be presumed to have prevailed. Legislature has made this presumption on its own perception and assessment of the extant standards of political proprieties and morality. At the same time legislature envisaged the need to provide for such "floor-crossing" on the basis of honest dissent. That a particular course of conduct commended itself to a number of elected representatives might, in itself, lend credence and reassurance to a presumption of bona fides. The presumptive impropriety of motives progressively weakens according as the numbers sharing the action and there is nothing capricious and arbitrary in this legislative perception of the distinction between 'defection' and 'split'.
Where is the line to be drawn? What number can be said to generate a presumption of bona fides? Here again the Courts have nothing else to go by except the legislative wisdom and, again, as Justice Holmes said, the Court has no practical criterion to go by except "what the crowd wanted". We find no substance in the attack on the statutory distinction between "defection" and "split".
Accordingly we hold;
that the Paragraph 2 of the Tenth Schedule to the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended. The provisions of Paragraph 2 do not violate any rights or freedom under Articles 105 and 194 of the Constitution. The provisions are salutary and are intended to strengthen the fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections. The contention that the provisions of the Tenth Schedule, even with the exclusion of Paragraph 7, violate the basic structure of the Constitution in that they affect the democratic rights of elected Members and, therefore, of the principles of Parliamentary democracy is unsound and is rejected.
22. Re: Contention (B):
The thrust of the point is that paragraph 7 brings about a change in the provisions of Chapter IV of Part V and Chapter V of Part VI of the Constitution and that, therefore, the amending Bill falls within proviso to Article 368(2). We might, at the outset, notice Shri Sibal's submissions on a point of construction of Paragraph 7. Shri Sibal urged that Paragraph 7, properly construed, does not seek to oust the jurisdiction of Courts under Article 136, 226 and 227 but merely prevents an interlocutory intervention or a quia-time action. He urged that the words "in respect of any matters connected with the disqualification of a Member" seek to bar jurisdiction only till the matter is finally decided by the Speaker or Chairman, as the case may be, and does not extend beyond that stage and that in dealing with the dimensions of exclusion of the exercise of judicial power the broad considerations are that provisions which seek to exclude Courts' jurisdiction shall be strictly construed. Any construction which results in denying the Courts is, it is urged, not favoured. Shri Sibal relied upon the following observations of this Court in H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and Ors. v. Union of India :
... The proper forum under our Constitution for determining a legal dispute is the Court which is by training and experience, assisted by properly qualified advocates, fitted to perform that task. A provision which purports to exclude the jurisdiction of the Courts in certain matters and to deprive the aggrieved party of the normal remedy will be strictly construed, for it is a principle not to be whittled down that an aggrieved party will not, unless the jurisdiction of the Courts is by clear enactment or necessary implication barred, be denied his right to seek recourse to the Courts for determination of his rights...." "The Court will avoid imputing to the Legislature an intention to enact a provision which flouts notions of justice and norms of fair-play, unless a contrary intention is manifest from words plain and unambiguous. A provision in a statute will not be construed to defeat its manifest purpose and general values which animate its structure. In an avowedly democratic polity, statutory provisions ensuring the security of fundamental human rights including the right to property will, unless the contrary mandate be precise and unqualified, be construed liberally so as to uphold the right. These rules apply to the interpretation of constitutional and statutory provisions alike.
[pages 94 - 95]
It is true that the provision which seeks to exclude the jurisdiction of Courts is strictly construed. See also: Mask & Co. v. Secretary of State AIR 1940 P.C. 105.
But the rules of construction are attracted where two or more reasonably possible constructions are open on the language of the statute. But, here both on the language of Paragraph 7 and having regard to the legislative evolution of the provision, the legislative intent is plain and manifest. The words ''no Court shall have any jurisdiction in respect of any matter connected with the disqualification of a member'' are of wide import and leave no constructional options. This is reinforced by the legislative history of the anti-defection law. The deliberate and purposed presence of Paragraph 7 is clear from the history of the previous proposed legislations on the subject. A comparison of the provisions of the Constitution (Thirty-second Amendment) Bill, 1973 and the Constitution (Forty-eight Amendment) Bill, 1978, (both of which had lapsed) on the one hand and the Constitution (52nd Amendment) Bill, 1985, would bring-out the avowed and deliberate intent of Paragraph 7 in the Tenth Schedule. The previous Constitution (38th and 48th Amendment) Bills contained similar provisions for disqualification on grounds of defection, but, these Bills did not contain any clause ousting the jurisdiction of the Courts. Determination of disputed disqualifications was left to the Election Commission as in the case of other disqualifications under Articles 102 and 103 in the case of Members of Parliament and Articles 191 and 192 in the case of Members of Legislature of the States. The Constitution (Fifty-second Amendment) Bill for the first time envisaged the investiture of the power to decide disputes on the Speaker or the Chairman. The purpose of the enactment of Paragraph 7, as the debates in the Houses indicate, was to bar the jurisdiction of the Courts under Articles 136, 226 and 227 of the Constitution of India. Shri Sibal's suggested contention would go against all these over-whelming interpretative criteria apart from its unacceptability on the express language of Paragraph 7.
23. But it was urged that no question of change in Articles 136, 226 and 227 of the Constitution within the meaning of Clause (b) of the proviso to Article 368(2) arises at all in view of the fact that the area of these rights and obligations being constitutionally rendered non-justiciable, there is no judicial review under Articles 136, 226 and 227 at all in the first instance so as, to admit of any idea of its exclusion. Reliance was placed on the decisions of this Court in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar 1952 SCR 89 and Sajjan Singh v. State of Rajasthan .
24. In Sankari Prasad's case, the question was whether the Amendment introducing Articles 31A and 31B in the Constitution required ratification under the said proviso. Repelling this contention it was observed:
It will be seen that these articles do not either in terms or in effect seek to make any change in Article 226 or in Articles 132 and
136. Article 31A aims at saving laws providing for the compulsory acquisition by the State of a certain kind of property from the operation of the Article 13 read with other relevant articles in Part III, while Article 31B purports to validate certain specified Acts and Regulations already passed, which, but for such a provision, would be liable to be impugned under Article 13. It is not correct to say that the powers of the High Court under Article 226 to issue writs "for the enforcement of any of the rights conferred by Part III" or of this Court under Articles 132 and 136 to entertain appeals from orders issuing or refusing such writs arc in any way affected. They remain just the same as they were before: only a certain class of case has been excluded from the purview of Part III and the courts could no longer interfere, not because their powers were curtailed in any manner or to any extent, but because there would be no occasion hereafter for the exercise of their power in such cases.
[1982 SCR 89 at 108]
In Sajjan Singh's case, a similar contention was raised against the validity of the Constitution (17th Amendment) Act, 1964 by which Article 31A was again amended and 44 statutes were added to the IX Schedule to the Constitution. The question again was whether the amendment required ratification under the proviso to Article 368. this Court noticed the question thus:
The question which calls for our decision is: what would be the requirement about making an amendment in a constitutional provision contained in Part III, if as a result of the said amendment, the powers conferred on the High Courts under Article 226 are likely to be affected?"
Negativing the challenge to the amendment on the ground of non-ratification, it was held: ".... Thus, if the pith and substance test is applied to the amendment made by the impugned Act, it would be clear that Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfilment of the socioeconomic policy in which the party in power believes. If that be so, the effect of the amendment on the area over which the High Courts' powers prescribed by Article 226 operate, is incidental and in the present case can be described as of an insignificant order. The impugned Act does not purport to change the provisions of Article 226 and it cannot be said even to have that effect directly or in any appreciable measure. That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained....