# KIHOTO HOLLOHAN v. ZACHILLHU AND OTHERS - **Citation:** [1992] 1 S.C.R. 686 - **Court:** Supreme Court of India - **Decided:** 1991-11-12 - **Bench:** Laut Mohan Sharma, M.N. Venkatachaliah, J.S. c VERMA, K. Jayachandra Reddy, S.C. Agrawal - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kihoto-hollohan-v-zachillhu-and-others-11356 - **Pages:** 121 ## Headnote Constitlllion of India, 1950: Articles 102(2). !91(2), Temh Sched11/e inserted by Constit11tion (FiftySecond Amendment) Act, 1985-Anti-defection /aw-Object and Constitllfionality of Tenth Sched11k-Para 2-Membcrs of Parliament/State Legis/anlfesDisq11a/ificatio11 011 account of defection-Whether rio/ative of ri!}lls and D ji-eedom cm·isaged by Article 105. Para 2( l)(b)-Expression "anr directio11'"--<:onstmctio11 of-fVhether whip/direction should clear~)' indicate that roting/abstention fronz voting contra1)' to it 1t'011/d incur disqualification. E Paragraph 6-Speake10/Chain11cn-Power to decide disp11ted disqualification of a Member of a H01m-Xat11re of Speakcrs!C"hainnan-f-Vhcrhcr act as Trihunal and satisfy requiren1c11ts of independent adjudicato1y 111achinery. F 'Finality' to orders of Speakers/C71ain11en; and inununity to proceedings 1111der para 6( I) analogous tu Articles 122( I) and 212( 1)-ltlzether excludes judicial reriea:. Doctrine of neccssit.1-Applicabiii~· of G Paragraph 7-Erpression 'no court :shall hal'e any j1uisdiction in respect 11:ith the 111atter connected u:ith disqual({ication of a Afe111her of a House'- H!f1ether bars jun·sdiction of Supro11c C'ourt and High ('ourts under Articles 136, 226 and 227: wltethcrrcquircd rutification cnrisaged by proriso to Article 368(2): whether can be serered from other prorisions of Schedule. H Doctrine of sei·erabiii1'-Applicability of 686 -'""' KIHOTO HOLLOHAN v. ZACHILLHU 687 Articles 122( I), 212(1 )-Proceedings in Parliament/State LegislaA . ture-Wiletiler justiciable 011 ground of illegality or perversity. Articles 136, 226, 227-..;.... C disqualification of a Member of a House. D A large number of petitions were filed before various High Courts as well as this Court challenging the constitutfonality or the Amendment. This Court transferred to itself the petitions pending before the High Courts and beard ail the matters together. The challenge was mainly on the grounds that Paragraph 7 of the Tenth Scbedule, in terms and in effect sought to make a. change in Chapter IV of Part V and Chapter V of Part V1 of the Constitution as it takes away the jurisdiction of the Supreme Court under Article 136 and that or the E High Courts under Articles 226 and 227 of the Constitution, and, therefore, the Bili before presentation to the President for assent would require to be ratified by the legislatures of not less than one·balf of the States by resolution to that eft'ect as envis11ged by the proviso to Article 368(2); that in the absence of such a ratification the whole Amendment Bili was an F 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· 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 being nominees of political parties are not obliged to resign their party affiliations, does not stand the test of an independent and impartial H adjudicatory machinery and Is, therefore, violative of the basic feature of KIHOTO HOLLOHAN v. ZACHILLHU 689 Ille Coutltutloll. It was also contended that the expression "any direction" A la ............. l(l)(b) of die Schedule might be unduly restrictive of the Ill 1d11M of 1peedl, and the right or dissent which may itself be obnoxious to ud vlllliltlYe ill constltutlonal Ideals and values. The respondent& contended that the Tenth Schedule created a nonB Justldallle coutltutlonal area dealing with certain complex political issues nlclt liave no strk:t acUudlcatory disposition and the exclusion of this area . Is constltutl111111lly preserved by Imparting a finality to the decision of the ;.( Speakds/Cbalnnen by deeming whole proceedings as .those within Pariia- -.tJH1111HS or lqlslature eavl1111ged in Articles 122 and 212 and further . exchi111111· tlie CO.rt's Jurisdiction under Paragraph 7; that no question of c 1111ster of Jndldal review would at all arise inasmuch as the Speaker/Chair- · -• exerdsl111 power under Paragraph 6(1) of the Tenth Schedule functlon ilot as a statutory TrlbullBI but as a part of State's Legislative . de,.._t; and that having regard to the pol!tlcal issues, the subject -tter Is Itself not a-nable to judicial power but pertains to the Con- D sU.hltlon of tlle House and the Legislature is entitled to deal with it -, · e11elnlllvely. The Court on 12.11.1991 gave its operative conclusions, indicating reas8'1s to ro11- and by Ill judgment dated 18.2.1992 gave the reasons. E Oa die questions whether: (1) the Tenth Schedule to the Constitution lasel'led lly die Coostltutlon (Fifty-Second Amendment) Act, 1985, seeking to peulise and disqualify elected representatives Is violative or the fun- ). - dameatal principles of Parliamentary democracy and is, therefor, destruc- ·\ tlve of the basic feature of the Constitution; (2) Paragraph 7 of the Tenth F Schedule la terms and In elrect brings about a change in operation and elfecl of Artlcles 136, 226 and 227 or the Constitution and, therefore, the llU latrodnclng the amend!"ent would require ratification as envisaged by tlle proviso to Article 368(2); (3) the non-compliance with the proviso to Article 368(2) would render the entire Bill vitiated and an abortive attempt G to bring about a valid amendment or would Paragraph 7 alone be intlllldated with the application or the doctrine of severability; ( 4) the Tenth Schedule created a new and non-justiciable constitutional area not •-Ille to cnrlal adjudicative proeess; and whether Paragraph 6(1) in ..., l•partl111 a constitutional 'finality' to the decisions of Chairmen/Speakers, ud paragrapll 6(2) In the event of attracting immunity under Articles 122 H 690 SUPREME COURT REPORTS [1992] 1 S.C.R. A and 212, bar judicial review; (5) the Chairmen/Speakers satisfy the requirements 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. B 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 'HELD: (By the Court) (i) Paragraph 7 of the Tenth Schedule to the C Constitution in terms and in effect excludes the jurisdiction of all Courts including the Supreme Court and High Courts, and brings about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India, and therefore, the amendment would require ratification in accordance with the proviso to Articles 368(2) of the Constitution of India. D [pp. 711F-G; 714G] · (ii) The finality clause in para 6(1) of the Tenth Schedule to the f-- Constitution is not decisive. Such finality, being for the statute alone, does not exclude extraordinary jurisdiction of the Supreme Court under Article 136 and of the High Courts under Articles 226 and ·227 of the Constitution. E ( 713E-F; 7888-C] F (iii) The legal fiction in para 6(2) of the Tenth Schedule brings a proceeding under para 6(1) within the 11mbit of clause (1) of Article 122/212 of the Constitution, and, therefore, makes it justiciable on the ground of illegality or perversity inspite of the immunity it enjoys to a challenge on the ground of "irregularity of procedure." [ 713G; 788E-~"] Per Majority (M.N. Venkatac/1alial1. K. Jayachandra Redd)' & S.C. Agrawal, JI.) (i) Paragraph 7 of the Tenth Schedule contains a provision which is G independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defection and, therefore, is a severable part. The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and H are not truncated by the excision of Paragraph 7. [p. 712E-F) -~ /. KIHOTO HOLLOHAN v. ZACHILLHU 691 (ii) There is nothing in the proviso to Article 368(2) which detracts A from the severability of a provision on account of the inclusion of which the Bill containing the amendment requires ratification from the rest of the provisions of such Bill which do.not attract and require such ratification. Having regard to the mandatory language of Article 368(2) that "thereupon the Constitution shall stand amended" the operation of the proviso should not be extended to constitutional amendments in a bill which can stand by themselves without such ratification. [711G-H; 712A-B] (iii) The Constitution (Fifty-Second Amendment) Act, 1985 in so far _.I as it seeks to introduce the Tenth Schedule in the Constitution of India, B to the extent of its provision which are amenable to the legal-sovereign of C the amending process of the Union Parliament cannot be over borne by the proviso to Article 368(2) which cannot operate in that area. [712B-C] (iv) Parapraph 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 D does not violate their freedom of speech, freedom of vote and conscience; nor does it violate any rights or freedom under Article 105 and 194 of the Constitution. [712F-H] The provisions are salutory and are intended to strengthen the fabric E of Indian Parliamentary democracy by curbing unprincipled and unethical political defections. [712H, 713A] (v) The Tenth Schedule does not, in providing for an additional ground for disqualification and for adjudication of disputed di< qualifications, seek to create a non-justiciable constitutional· area. [p. 769A-B] F (vi) The Speakers/Chairmen while functioning under the Tenth Schedule exercise judicial power and act as Tribunal adjudicating rights and obligations under the Tenth Schedule, and their decisions in that capacity are amenable to judicial review. [713C] (vii) Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairman is valid. But the concept of statutory finality embodied therein does not de.ract from or · abrogate judicial review under Articles 136, 226 and 227 of the ConstituG tion in so far as infirmities based on violations of constitutional mandates, H 692 SUPREME COURT REPORTS [ 1992) 1 S.C.R. · A ma/a fides, non-compliance with Rules or Natural Justice and penwslty. are concerned. [713E-F] (viii) The deeming provision in Paragraph 6(2) of ll1e Tenth Schedule attracts an immunity analogous lo that la Artlde lll(l) and 212(1) of the Constitution to protect the validity or proceedings from mere B irregnlarities _of procedure and confines lhe scope or the fidlon -llhiW· (7l3G·H, 114AJ Sp/. ~ef No.I of 1964 (Kesliav Singh's case) (1965) I SCR 413, referred lo. C (ix) Having regard to the Conslitutlona.1 scheme In the Tenlll Schedule, judicial review should not cover aay stage prior to the ........ of a decision by lhe Speakers/Chairmen; and ao quia 1bi1e/ actloas are permissible; lhe only exception for any interlocutory lnlerf'erence being cases or interlocutory disqualifications or •••pensions which may laaw D grave, immediate and irreversible repercussloas and conseqaence. (7130-E) (x) The Speakers/Chlirmen hold a pivotal position la the scheme or ...-·- Parliamentary democracy and are guardians or the rights and privileges of the House. They are expected lo and do take far reaching dedslons la E the Parliamentary democracy. Vestiture or power to acUudicate qanlloas under the Tenth Schedule i'! them should not be considered exceptionable. (7148-CJ Per La/it Mohan Sliaima and J.S. Venna, JJ. - co/llra F (i) Without ratification, as required by the mandatory special --{ G provision prescribed in the proviso to Artlde 368(2) or the Coblihllioa /- the stage of presenting the Constitution (Fifty-Second) Amendment Bill for assent of the !'.resident did not reach and, therefore, the s.o-called assent of the President was non est. (71511-C) (ii) In the absence or ratification it is not merelyParagraph 7 but the entire Constitution (Fifty-Second Amendment) Act, 1985 which Is rendered unconstitutional, since lhe constitutional ponr was not exer• cised as prescribed in Article 368, and, therefore, the Constitution did nol . stand amended in accordance with the terms or the Biii provldlag for H amendment. [715D·E] KIHOTO HOLLOHAN v. ZACHILLHU 693 (Iii) Doctrine of severability cannot be applied to a Bill making a A .oonstitutional amendment where any part thereof attracts the proviso lo dause (2) of Article 368. [715FJ (Iv) Doctrine of severabillty is not applicable lo 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 B proviso the Article 368(2). [715GJ (v) The Speaker's decision disqualifying a Meniber of a House .under paragraph 6(1) or the Tenth Schedule is not immune from judicial scrutiny. It ls a nullity liable to be so declared and ignored. [782GJ . . . (vi) ·Ali· Independent acljudil!atory machinery for resolving disputes relating lo the competence or Members of the· House is envisaged as an attribute. of the democratic system which is a basic feature of our Constilu· lion. The tenure of the Speak.er, who Is the authority iu the Tenth Schedule c to decide this dispute, Is dependent on the continuous support or the D majority In the House and, therefore, he does not satisfy the requirement or such an independent adjudicatory authority; and his choice as the sole arbiter In the matter violates an essential attribute of the basic feature. (7168-CJ (vii) Consequently, the entire Constitution (Fifty-Second Amend· E ment) Act, 1985 which inserted the Tenth Schedule together with clause (2) in Arlldes 102 and 191, must be declared unconstitutional. [716C·D] (viii) Accordingly, all decisions rendered by several Speakers under the Tenth Schedule must also be declared nullity and liable to be ignored. [p. 7160] Per Venkatachaliah : I. 1.1. A constitutional document outlines only broad and general principles meant. to endure and be capable or flexible llppllcatioo to changing circumstances-a distinction which differentiates F a sta~ute from a Charter under which all statutes are made. (726G·H] G Cooley on "Constitutional ·Limitation" 8th Edn. Vol. I p. 129, referred to. ~ 1.2. In considering the validity of a constitutional amendment the changing and the changed circumstances that compelled the ~mendment H 694 SUPREME COURT REPORTS [1992] 1 S.C.R. A are important criteria. [727B] U.S. Supreme Court in Mm.well v. Dow 44 Lawyer's Edition 597 at p. 605, referred to. "' 1.3. The Tenth Schedule is a part of the Constitution and attracts )I B the same canons of construction as are applicable to the expounding of the fundamental law. One constitutional power is necessarily conditioned by the other as the Constitution is one "coherent d'ocument". In expounding the process of the fundamental law the Constitution must be treated c as a logical-whole. [726D-E] >-..__ 1.4. 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 identify, "darken and deepen" the demarcating line of constitutionality - a task in which some element of Judges' own perceptions of the D 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 disen- .,, - tangle" 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 E legislative element in all constitutional adjudications. [730D-F] F "77ieol)1 of Tons'! A111erica11 Law Revie111 7 [1873); Justice Oliver Wendel Holmes- Free Speech and the Living Co11stitutio11 by H.L. Pohlman 1991Edn. p.223, referred to. Amalgamated Society of Railway Sen•ants v. Osbome, 1910 A.C. 87, referred to. 1.5. A political party functions on the strength of shared beliefs. Any freedom of its Members to vote as they please independently of the G 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. Paragraph 2(1)(b) of the Tenth Schedule gives effect to this p~in· ciple and sentiment by imposing a disqu_alilicatio.i on a Member who votes H or abstains from voting contrary to "al'l.y direction~" issued by the political KIHOTO HOLLORAN v. ZACHILLHU 695 _,.. party. The provision, however, recognising two exceptions: one when the A Mem~r 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 ... 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 B the direction of the party to which he belongs. [734D-E; 7358-C] Griffith and Ryle on "Parliament, Functions, Practice & Procedure" ~ 1989 Edn. page 119, referred to. 1.6. In a sense anti-defection law is a statntory variant of its moral c principle and justification underlying the power of recall. What might jnstify a provision for recali would justify a provision for disqualification for defec.tion. Unprincipled defection is a political and social evil. It is perceived as snch by the legislature.· The anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conductD whose awkward erosion and grotesque manifestations have been the bane of the times - above certain theoretical assumptions which in reality have fat- "' ten into a morass of personal and political degradation. This legislativ" wisdom and perception should be deferred to. The choices in constitutional adjudications quite clearly indicate the need.for such deference. [739D-G] E 'Constitutional Reform, -Reshaping the British Political System, by Rodney Brazier. 1991 Edn. pp. 48-53, referred to. 1.7. The Tenth Schedule does not impinge upon tile rights or im- ~- munities under Article 105(2) of the Constitution. The freedom of speech F A, 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. [732H; 733C] Jyoti Basu & Ors. v. Debi Ghosal& Ors., [1982] 3 SCR318, referred to. G " 2.1. A provision which seeks to exclude the jurisdiction of Courts is strictly construed. [742E] ... H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & .. Ors. v. Union of India, [1971] 1 SCC 85, referred to. H 696 SUPREME COURT REPORTS [1992] 1 S.C.R. A Mask & Co. v. Secretary of State, AIR 1940 P.C. 105, referred to. 2.2. The rules of construction are attracted where two or more reasonably possible constructions are open on the language of the statute. [742F] B 2.3. As regards Paragraph 7 to the Tenth Schednle, both on its language 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 ~ C reinforced by the legislative history of the anti-defection law. The Constitution (Fifty-Second Amendment) Bill for the first time envisaged the investitute Qf the power to decide disputes on the Speakers or the Chairmen whereas the two similar Constitution (32nd and 48th Amendment) Bills, (which had lapsed) did not contain any clause ousting the jurisdiction of the D Courts. The purpose of the enactment of Paragraph 7, as the debates in the House indicate, was to bar the jurisdiction of the Courts under Articles 136, 226 and 227 of the Constitution. [742F-G, H, 7438] 2.4. The changes in Chapter IV of Part V and Chapter V of the Part VI of the Constitution envisaged by the proviso to Article 368(2) need not E be direct. The change could be either "in terms of or in effect". It is not necessary to change the language of Articles 136 and 226 of the Constitution to attract the proviso. If in effect these Articles are rendered ineffective and made inapplicable where these articles could otherwise have been invoked or would, but for Paragraph 7, have operated there is 'in effect' a change in those provisions attracting the proviso. [p. 745C-D] F 2.5. Though the Amendment does not bring in any change directly in the language of Articles 136, 226 and 227 of the Constitution, however, in effect Paragraph 7 curtails the operation of those Articles respecting matters falling under the Tenth Schedule. There, is a change in the effect G in Articles 136, 226 and 227 within the meaning of clause (b) of the proviso to Article 368(2). Paragraph 7, therefore, attracts the proviso and ratification was necessary. [745F] Sri Sankari Prasad Singh Dea v. Union of India & State of Bihar, [1952] SCR 89 and Sajjan Singh v. State of Rajasthan, [1965] l SCR 933, H referred to. - • KIHOTO HOLLORAN v. ZACHILLHU 697 3.1. The criterion for determining the constitutional validity of a law A is the competence of the law making authority (which would depend on the ambit of the Legislative power and the limitations imposed thereon as also on mode of exercise of the power). While examining the constitutional validity oflaws the doctrine of severability is applied which envisages that if it is possible to construe a statute so that its validity can be sustained against a constitutional attack it should be so construed and that when part of a statute is valid and part is void, the valid part must he separated from the invalid part. [746C; 747D) Cooley's Constitutional Limitations; 8th Edn. Vol. I, p. 359-360, B referred to. C R.M.D. Chamarbaughwal/a v. Union of India, [1957) SCR 930; Shri Kesavananda Bharti Sripadaga/avam v. State of Kera/a, [1973) Supp. 1 SCR; Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1981) 1 SCR 206 and Sambhamurthy & Ors. etc. v. State of Andhra Pradesh & Anr., [1987) 1 SCR 879, referred to. D 3.2. Though the amending power in a constitution is in the nature of a constituent power and differs in content from the Legislative power, the limitations imposed on the constituent power may be substantive_ as well as procedural. Substantive limitations are those which restrict the field of E exercise of the amending power and exclude some areas from its ambit. Procedural limitations are those which impose restrictions with regard to the mode of exercise of the amending power, e.g. the limitation requiring a special majority under Article 368(2) of the Constitution is a procedural one. Both these limitations, however, touch and affect the constituent power itself, and impose a fetter on the competence of Parliament to amend F the Constitution ~nd any amendment made in disregard of these limita· tions would go beyond the amending power and would invalidate its exercise. [746C-E, 747C) 3.3. Although there is no specific enumerated substantive limitation G on the power in Article 368, but as arising from very limitation in the word 'amend', a substantive limitation is inherent on the amending power so that the amendment does not alter the basic structure or destroy the basic features of the Constitution. [747A-B] 3.4. The proviso to Article 368(2) was introduced with a view to giving H 698 SUPREME COURT REPORTS (1992) 1 S.C.R. ·""' A effect to the federal principle. Its scope is confined to the limits prescribed therein and is not construed so as to take away the power in the main part - of Article 368(2). [750C-D) Madras & Southern Mahratta Railway Company v. Bazwada MuniB cipality, (1944) 71 I.A. 113 and Commissioner of Income Tax, Mysore v. Indo-Mercantile BankLtd., [1959) Supp. 2 SCR 256, referred tQ. 3.5. An amendment which otherwise fulfils the requirements of Article 368(2) and is outside the specified cases which require ratification cannot be denied legitimacy on the ground alone of the company it keeps. [750E) c 3.6. The words "the amendment shall also .require to be ratified by · the legislature" occurring in the proviso to Article 368(2) indicate that what is required to be ratified by the legislatures of the States is the amendment seeking to make the change in the provisions referred to in · clauses (a) to (e) of the proviso. The need for and the requirement of the D ratification is confined to that particular amendment alone and not in respect of amendments outside the ambit of the proviso. The proviso can· have, therefore, no bearing on the validity of the amendments whieh do not . fall within its ambit. [750G-H) 3. 7. A composite amendment which makes alterations in the First E and Fourth Schedules as well as in other proVisions of th~ Constitution requiring special majority under Article 368(2), ~ven though passed by the simple majority and not by special majority,.may be upheld in respect of the amendments made in the First and Fourth Schedules. [755D] F Bribery Commissioner v. Pedrick Ranasinghe, 196? A.C. 172, referred to. ... 3.8. There is really no difference in principle between the condition ,__ requiring passing of the Bill by a spe~ial majority before its presentation to the President for assent contained in Article 368(2) ;md the condition . for ratification of the amendment by the legislatures of not less than G one-half of the States before the Bill is presented to the President for assent contained in the proviso. [753D-EJ 3.9. The principle of severability can be equally applied to a composite amendment which contains amendments in- provisions which do not require ratification by States as well as amendment in provisions which .. H require such ratification and by application of the doctrine of severability, KIHOTO HQLLOHAN v. ZACHILLHU 699 the amendment can be upheld in respect of the amendments which do not A - ·require ratification and which are within th~ competence of Parliament alone. Only these amendments in provisions which require ratification under the proviso need to be struck down or declared invalid. [753E·F] 3.10. The test of severability requires the Court to ascertain whether the legislature would at all have enacted t.he law If the .severed part was B not the part of the law and whether after severance what survives can stand independently and is workable. [753G] · 3.11. The main purpose underlying the Constitutional (Fifty-Second Amendment) Act and introduction of the Tenth Schedule is to curb the evil C of defection which was causing immense mischief in our body-politic. The ouster of jurisdiction of Courts ·under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedμle if it had known that Paragraph 7 was not valid. Nor can it be said that the rest of the provisions D of the Tenth Schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 is there(ore, severable from the rest of the provisfons. [pp. 754A-C] 4.1. Democracy is a basic feature of the Constitution. Wheth.er any E .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 iniervals is essential to the democratic system envisaged in the Constitution .. So is the need to protect and sustain the purity of the electoral process. F That may take within it the quality, efficacy and adequacy of the machinery . for resolution of electoral disputes. [p. 733F·G] 4.2. In the Indian Constitutional dispensation the power to decide a disputed disqualification of an elected Member of the House is not treated G as a matter of privilege and the power to resolve such electoral dispute is clearly judicial and not legislative in nature. The power to decide disputed disqualification under Paragraph 6(1) is pre eminantly of a judicial complexion. [pp. 759G, 763C] . ' Indira Nehru Gandhi v. Raj tyarain, (1976] 2 SCR 347; Special Refer- H 700 SUPREME COURT RJ¥>0RTS (1992] l S.C.R. A ence No. 1 of 1964, (1965] 1 SCR 413 & Express Newspaper Ltd. v. Union of India, AIR 1958 SC 578, referred to. - Australian Boot Trade Ef1JPloyees Federation v. Whybrow & Co., 1910 10 CLR 2Ji6, referred to. B 4.3. The word "Courts" is used to designate those Tribunals which are set up in an organised State for the administration of justice. By Administration of Justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish ''wrongs". Whenever there is an infringement of a right or an injury, the Courts are there to restore the C vinculum juris, which is disturbed. Where there is a lls an affirmation by one party and denial by another-and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is an exercise of judicial power. That authority is called a Tribunal, if it does not have all the trappings of a Court. Thus, the Speaker or the Chairman, acting under Paragraph 6(1) of the D Tenth Schedule is a Tribunal. [763G-H, 7'4E-F, 7668] E F Associated Cement Companies Ltd. v. P.N. Shanna and Anr., [1965] 2 SCR 366 and Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjlmnwala & Ors., [1962] 2 SCR 339, referred to. 5.1 A 6nality clause is not a legislative magical incantation which has the effect of telling off Judicial Review. Statutory 6nality of a decision presupposes and is subject to its consonance with the statute. The principle that is applied by the courts is that in spite of a finality clause it is open to the court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority. An action can be ultra vires for the reason that it is in contravention of a mandatory provision of the law conferring on the authority the power lo take such an action. It will also be ultra vires the powers conferred on the authority if it is vitiated by ma/a fides or is colourable exercise of power G based on extraneous and irrelevant col!siderations. [pp. 755D, 765D-E] 'Administrative Law' 6th Edn. at p. 720 & Constitutional Fundamentals, the Hamlyn Lectures, 1989 Edn., p. 88, referred to. 5.2. The finality clause with the word "6nal" in paragraph 6(1) of H the Tenth Schedule does not completely exclude the jurisdiction of the -- KIHOTO HOLLOHAN i·. ZACHILLHU 701 Courts under Articles 136, 226 and 227 of the Constitution. But it does A - have the effect of limiting the scope of the jurisdiction. If the intendment is to exclude th"e jurisdiction of the superior Courts, the language would quite obviously have been different. [758H, 759A, 765C, 758A] ..,. ~ ,,-..., Bnmdaban Nuyak v. Election Commission of India & Anr., [1965] 3 SCR 53; Union of India v. Jyoti Prakash Mitter, [1971) 3 SCR 483; Durga. B Shankar Mehra v. Raghuraj Singh, AIR 1954 SC 520 and Union of India & Anr. v. Tulsiram Patel & Ors., [1985) Supp. 2 SCR 131, referred to. 5.3. An ?uster clause confines judicial review in respect of actions falling outside the jurisdiction of the authority taking such action but C precludes challenge to such action on the ground of an error committed in the exercise of jurisdiction vested in the authOrity because such an action cannot be said to be an action without jurisdiction. [765F) Anisminic Ltd. v.Foreign Compensation Commission, [1969) 2 AC 147; S.E. Asia Fire Bricks v. Non-Metallic Products, 1981A.C.363, referred to. 6. The fiction in Paragraph 6(2) attracts an immunity from mere irregularities of procedures. The very deeming provision implies that the proceedings of disqualification are, in fact, not before the House; but only before the Speaker as a specially designated authority. The decision under Paragraph 6(1) is not the decision of the House, nor is it subject to the approval by the House. The decision operates independently of the House. A deeming provision cannot by its creation transcend its own power. There is, therefore, no immunity under Articles 122 and 212 from judicial scrutiny of the decision of the Speaker or Chairman exercising power under Paragraph 6(1) of the Tenth Schedule. [763D-F] 7. The scope of judicial review under Articles 136, 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6 would be confined to jurisdictional errors only, viz., inlirmities based on violation of constitutional mandate, ma/a /ides, non-compliance with rules of natural justice and perversity. But judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia-timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the .proceedings. Exceptions will, however, have to be made in respect of cases where disqualification of suspension is imposed during the pendency of the D E F G H 702 SUPREME COURT REPORTS [1992] 1 S.C.R. A proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussionS:and consequence. [768E-H] Makhan Singh v. State of Punjab, [1964) 4 SCR 797; State of Raja.ithan v. Union of India, [1978) 1 SCR 1; Union of India v. Jyoti Prakash Mitter, (supra) and Union of India & Anr. v. Tu/siram Patel & Ors., [1985] Supp. B 2 SCR 131, referred to. 8. The ~ffice of the Speaker is held in the highest respect and esteem in Parliamentary traditions. The evolution of the institution of Parlimentary democracy has as its pivot the institution of the Speaker. He is said to be the C very embodiment of propriety and impartiality. He performs wide ranging functions including the performance of important functions of a judicial character. It would, indeed be unfair to the high traditions of that great office to say that the investiture in it of this jurisdiction would be vitiated for violation of a basic feature of democracy. It is inappropriate to express distrust in the high Olnce of the speaker, merely because some of the D Speakers are alleged, or-even found, to have discharged their functions not in keeping with the great traditions-of that high office. The Robes of the Speaker - do change and elevate the man inside. [770G-H, 771A, 772A, 773A-B] Y G. V. Mavalankar ; The Office of Speaker, Journal. of f'.arliamentary E Information, April 1956, Vol. 2. No. 1 p.33; HOP, Deb. Vol.IX (1954), CC 3447-48 and Erskine May-Parliamentary Practice - 20th edition p. 234 and M.N. Kaul and SL. Shakdher in 'Practice ana Procedure of Parliament' 4th Edition, referred to. 9.1. The words "any direction" occurring in Paragraph 2(1)(b) of the F Tenth Schedule require to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Schedule. Those objects and purposes define and limit th~ contours of its meaning. The assignment of a limited meaning is not to read it down to promote its constitutionality but because such a construction is a harG monious construction in the context. There is no justification to give the words the wider meaning. [774H, 775A-B) Parkash Singh Badal & Ors. v. Union of India & Ors., AIR 1987 Punjab & Hal-yana 263, referred to. H 9.2. While construing Paragraph 2(1).(b) it cannot be ignored that KIHOTO HOLLOHAN v. ZACHILLHU 703 under the Constitution members of Parliament as well as of the State A . . Legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the Constitution and the rules and standing orders regulating the Procedure of the Hause. The disqualification Im-. posed by Paragraph 2(l)(b) must be so construed as not to unduly Impinge on the said freedom of speech of a member; This would be possi!>le if B Paragrapli 2(l)(b) is confined in its scope by keeping in view the object underlying the amendments contained in the Tenth Schedule namely, to curb the evil or 111ischief of political defections motivated by the lure of office or other· similar considerations.· [p. 775C-D] 9.3.