Constitution of India, 1950:

 Articles 102(2), 191(2), Tenth Schedule inserted by Constitution (Fifty- Second Amendment) Act, 1985-Anti-defection law-Object and Con- stitutionality of. Tenth Schedule-Para 2-Members of Parliament/State Legislatures- Disqualification on account of defection-Whether violative of rights and freedom envisaged by Article 105.

Para 2(1)(b) Expression "any direction Constriction of Whether whip/direction should clearly indicate that voting abstention from voting contrary to it would incur disqualification. Paragraph & Speakers/Chainnen-Power to decide disputed dis- qualification of a Member of a House Nature of Speakers Chainnan-Whether act as Tribunal and satisfy requirements of independent adjudicatory machinery.

"Finality to orders of Speakers Chairmen; and immunity to proceedings under para 6(1) analogous to Anicles 122(1) and 212(1) Whether exchudes judicial review.

Doctrine of necessity Applicability of.

 Paragraph 7-Expression 'no court shall have any jurisdiction in respect with the matter connected with disqualification of a Member of a House- Whether bars jurisdiction of Supreme Court and High Courts under Articles 136, 226 and 227: whether required ratification envisaged by proviso to Article 368(2): whether can be severed from other provisions of Schedule.

Doctrine of severability Applicability of.

Articles 122(1), 212(1)-Proceedings in Parliament/State Legislature-Whether justiciable on ground of illegality or perversity. Articles 136, 226, 227-Orders under Paragraph 6-Scope of Judicial review-Whether confined to jurisdictional errors only. Article 368-Constitutional amendment-Amending powers-Scope, B object, nature and limitations explained. 

Articles 136, 226, 227-Orders under Paragraph 6-Scope of Judicial review-Whether confined to jurisdictional errors only.

Article 368-Constitutional amendment-Amending powers-Scope, B object, nature and limitations explained.

Extinction of rights and restriction of remedy for enforcement of right Distinction between-Extinction of remedy without curtailing right Whether makes a change in the right.

Administrative Law:

Judicial review-Statute-Finality and ouster clauses-Meaning, object and scope of

Practice & Procedure

Interlocutory orders-Purpose of

Words and Phrases:

Administration of Justice, Court', 'final' and 'Tribunal meaning of.

By the Constitution (Fifty-Second Amendment) Act, 1985 (popularly known as the Anti-defection law) the Tenth Schedule was inserted in the Constitution of India providing for disqualification of a Member of either House of Parliament or of a State Legislature found to have defected from F continuing as a Member of the House.

Paragraph 2 of the Tenth Schedule states that a Member of a House would incur disqualification if he voluntarily gives up his membership of the party by which he was set up as a candidate at the election, or if he without obtaining prior permission of the political party to which he G belongs votes or abstains from voting in the House contrary to my direction" issued by such political party and such voting or abstention has not been condoned by such political party within 15 days from the date of such voting or abstention; or if a Member elected otherwise than as a candidate set up by any political party joins a political party after the A election; or, if a nominated Member joins any political party after expiry of six months from the date he took his seat. Paragraph 6(1) states that the question of disqualification shall be referred for decision of the Chair men/Speaker of the House and his decision shall be final. It further provides that such question in respect of Chairman/Speaker shall be B referred for decision of such Member of the House as the House may elect in this behalf. According to Paragraph 6(2) all proceedings under para 6(1) shall be deemed to be proceedings in Parliament/Legislature of a House within the meaning of Article 122/212. Paragraph 7 states that no court shall have jurisdiction in respect of any matter connected with the disqualification of a Member of a House. 

A large number of petitions were filled before various High Courts as well as this Court challenging the constitutionality of the Amendment. This Court transferred to itself the petitions pending before the High Courts and heard all the matters together.

The challenge was mainly on the grounds that Paragraph 7 of the Tenth Schedule, in terms and in effect sought to make a change in Chapter IV of Part V and Chapter V of Part VI of the Constitution as it takes away the jurisdiction of the Supreme Court under Article 136 and that of the High Courts under Articles 226 and 227 of the Constitution, and, therefore, the Bill before presentation to the President for assent would require to be ratified by the legislatures of not less than one-half of the States by resolution to that effect as envisaged by the provise to Article 368(2); that in the absence of such a ratification the whole Amendment Bill was an abortive attempt to bring about the amendment indicated therein; that even assuming that the amendment does not attract the proviso to Article 368(2), Paragraph 7 of the Schedule is liable to be struck down as it takes away the power of judicial review; that the very concept of disqualification for defection is violative of the fundamental values and principles under I lying parliamentary democracy and violates an elective representative's G freedom of speech, right to dissent and freedom of conscience and is destructive of a basic feature of the Constitution; that the investiture of power to adjudicate disputed defections in the Chairmen/Speakers, who bring nominees of political parties are not obliged to resign their party affiliations, does not stand the test of an independent and impartial adjudicatory machinery and is, therefore, violative of the basic feature of  the Constitution. It was also contended that the expression "any direction" A in Paragraph 2(1)(b) of the Schedule might be unduly restrictive of the freedom of speech, and the right of dissent which may itself be obnoxious to and violative of constitutional ideals and values.

The respondents contended that the Tenth Schedule created a non- justiciable constitutional arca dealing with certain complex political issues which have no strict adjudicatory disposition and the exclusion of this area is constitutionally preserved by imparting a finality to the decision of the Speakers/Chairmen by deeming whole proceedings as those within Parliament/Houses of legislature envisaged in Articles 122 and 212 and further excluding the Court's Jurisdiction under Paragraph 7; that no question of C ouster of judicial review would at all arise inasmuch as the Speaker/Chair- man exercising power under Paragraph 6(1) of the Tenth Schedule func- tion not as a statutory Tribunal but as a part of State's Legislative department; and that having regard to the political issues, the subject matter is itself not amenable to judicial power but pertains to the Constitution of the House and the Legislature is entitled to deal with it exclusively.

The Court on 12.11.1991 gave its operative conclusions, indicating reasons to follow and by its judgment dated 18.2.1992 gave the reasons.

On the questions whether: (1) the Tenth Schedule to the Constitution inserted by the Constitution (Fifty-Second Amendment) Act, 1985, seeking to penalise and disqualify elected representatives is violative of the fun- damental principles of Parliamentary democracy and is, therefor, destructive of the basic feature of the Constitution; (2) Paragraph 7 of the Teath  Schedule la terms and in effect brings about a change in operation and effect of Articles 136, 226 and 227 of the Constitution and, therefore, the Bill introducing the amendment would require ratification as envisaged by the provise to Article 368(2); (3) the non-compliance with the proviso to Article 368(2) would render the entire Bill vitlated and an abortive attempt to bring about a valid amendment or would Paragraph 7 alone be in- validated with the application of the doctrine of severability; (4) the Tenth Schedule created a new and non-justiciable constitutional area not amenable to curial adjudicative process; and whether Paragraph 6(1) in imparting a constitutional finality' to the decisions af Chairmen/Speakers, and paragrapk 6(2) is the event of attracting immunity under Articles 122 A and 212, bar judicial review; (5) the Chairmen/Speakers satisfy the re- quirements of an independent adjudicatory machinery or whether the investiture of the determinative and adjudicative jurisdiction in them under the Tenth Schedule would vitiate the provision on the ground of reasonable likelihood of bias.

Dismissing Writ Petition No. 17 of 1991 and remitting Writ Petition Rule No. 2421 of 1990 (subject matter of TP No. 40/91) to the High Court of Guwahati, this Court