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THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES

(Full Text)

PREAMBLE

We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society, and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity, the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.
ARTICLE I
NATIONAL TERRITORY
The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.
ARTICLE II
DECLARATION OF PRINCIPLES AND STATE POLICIES
PRINCIPLES
Section 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.
Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

Section 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.

Section 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military or civil service.

Section 5. The maintenance of peace and order, the protection of life, liberty, and property, and promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.

Section 6. The separation of Church and State shall be inviolable.

STATE POLICIES
Section 7. The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.
Section 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.

Section 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.

Section 10. The State shall promote social justice in all phases of national development.

Section 11. The State values the dignity of every human person and guarantees full respect for human rights.

Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.

Section 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.

Section 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.

Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.

Section 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

Section 17. The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development.

Section 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.

Section 19. The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.

Section 20. The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments.

Section 21. The State shall promote comprehensive rural development and agrarian reform.

Section 22. The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.

Section 23. The State shall encourage non-governmental, community-based, or sectoral organizations that promote the welfare of the nation.

Section 24. The State recognizes the vital role of communication and information in nation-building.

Section 25. The State shall ensure the autonomy of local governments.

Section 26. The State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law.

Section 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.

Section 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

 

ARTICLE III
BILL OF RIGHTS
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.
Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.

Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

Section 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

Section 9. Private property shall not be taken for public use without just compensation.

Section 10. No law impairing the obligation of contracts shall be passed.

Section 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.

Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families.

Section 13. All persons, except those charged with offenses punishable by reclusion perpetuawhen evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.

Section 14. (1) No person shall be held to answer for a criminal offense without due process of law.

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable.

Section 15. The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion, when the public safety requires it.

Section 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.

Section 17. No person shall be compelled to be a witness against himself.

Section 18. (1) No person shall be detained solely by reason of his political beliefs and aspirations.

(2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.

Section 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua.

(2) The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.

Section 20. No person shall be imprisoned for debt or non-payment of a poll tax.

Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

Section 22. No ex post facto law or bill of attainder shall be enacted.
ARTICLE IV
CITIZENSHIP
Section 1. The following are citizens of the Philippines:
[1] Those who are citizens of the Philippines at the time of the adoption of this Constitution;[2] Those whose fathers or mothers are citizens of the Philippines;

[3] Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and

[4] Those who are naturalized in accordance with law.

Section 2. Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens.
Section 3. Philippine citizenship may be lost or reacquired in the manner provided by law.

Section 4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission, they are deemed, under the law, to have renounced it.

Section 5. Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law.
ARTICLE V
SUFFRAGE
Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year, and in the place wherein they propose to vote, for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage.
Section 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad.

The Congress shall also design a procedure for the disabled and the illiterates to vote without the assistance of other persons. Until then, they shall be allowed to vote under existing laws and such rules as the Commission on Elections may promulgate to protect the secrecy of the ballot.
ARTICLE VI
THE LEGISLATIVE DEPARTMENT
Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.
Section 2. The Senate shall be composed of twenty-four Senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law.

Section 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election.

Section 4. The term of office of the Senators shall be six years and shall commence, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term of which he was elected.

Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.

(2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.

(3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.

(4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.

Section 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election.

Section 7. The Members of the House of Representatives shall be elected for a term of three years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election.   No Member of the House of Representatives shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

Section 8. Unless otherwise provided by law, the regular election of the Senators and the Members of the House of Representatives shall be held on the second Monday of May.

Section 9. In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term.

Section 10. The salaries of Senators and Members of the House of Representatives shall be determined by law. No increase in said compensation shall take effect until after the expiration of the full term of all the Members of the Senate and the House of Representatives approving such increase.

Section 11. A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.

Section 12. All Members of the Senate and the House of Representatives shall, upon assumption of office, make a full disclosure of their financial and business interests. They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors.

Section 13. No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected.

Section 14. No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government, or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office.

Section 15. The Congress shall convene once every year on the fourth Monday of July for its regular session, unless a different date is fixed by law, and shall continue to be in session for such number of days as it may determine until thirty days before the opening of its next regular session, exclusive of Saturdays, Sundays, and legal holidays. The President may call a special session at any time.

Section 16. (1). The Senate shall elect its President and the House of Representatives, its Speaker, by a majority vote of all its respective Members. Each House shall choose such other officers as it may deem necessary.

(2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner, and under such penalties, as such House may provide.

(3) Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days.

(4) Each House shall keep a Journal of its proceedings, and from time to time publish the same, excepting such parts as may, in its judgment, affect national security; and the yeas and nays on any question shall, at the request of one-fifth of the Members present, be entered in the Journal.  Each House shall also keep a Record of its proceedings.

(5) Neither House during the sessions of the Congress shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.

Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.

Section 18. There shall be a Commission on Appointments consisting of the President of the Senate, as ex officio Chairman, twelve Senators, and twelve Members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented therein. The chairman of the Commission shall not vote, except in case of a tie. The Commission shall act on all appointments submitted to it within thirty session days of the Congress from their submission. The Commission shall rule by a majority vote of all the Members.

Section 19. The Electoral Tribunals and the Commission on Appointments shall be constituted within thirty days after the Senate and the House of Representatives shall have been organized with the election of the President and the Speaker. The Commission on Appointments shall meet only while the Congress is in session, at the call of its Chairman or a majority of all its Members, to discharge such powers and functions as are herein conferred upon it.

Section 20. The records and books of accounts of the Congress shall be preserved and be open to the public in accordance with law, and such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expenses incurred for each Member.

Section 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in, or affected by, such inquiries shall be respected.

Section 22. The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

Section 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

Section 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills, shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments.

Section 25. (1) The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law.

(2) No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates.

(3) The procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for other departments and agencies.

(4) A special appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually available as certified by the National Treasurer, or to be raised by a corresponding revenue proposal therein.

(5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.

(6) Discretionary funds appropriated for particular officials shall be disbursed only for public purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law.

(7) If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be deemed re-enacted and shall remain in force and effect until the general appropriations bill is passed by the Congress.

Section 26. (1) Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof.

(2) No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal.

Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof, otherwise, it shall become a law as if he had signed it.

(2) The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.

Section 28. (1) The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation.

(2) The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government.

(3) Charitable institutions, churches and personages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation.

(4) No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress.

Section 29. (1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.

(2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium.

(3) All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was created has been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the Government.

Section 30. No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence.

Section 31. No law granting a title of royalty or nobility shall be enacted.

Section 32. The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters thereof.
ARTICLE VII
EXECUTIVE DEPARTMENT
Section 1. The executive power shall be vested in the President of the Philippines.
Section 2. No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election.

Section 3. There shall be a Vice-President who shall have the same qualifications and term of office and be elected with, and in the same manner, as the President. He may be removed from office in the same manner as the President.

The Vice-President may be appointed as a Member of the Cabinet. Such appointment requires no confirmation.

Section 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date, six years thereafter. The President shall not be eligible for any re-election. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time.

No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected.

Unless otherwise provided by law, the regular election for President and Vice-President shall be held on the second Monday of May.

The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes.

The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately.

The Congress shall promulgate its rules for the canvassing of the certificates.

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose.

Section 5. Before they enter on the execution of their office, the President, the Vice-President, or the Acting President shall take the following oath or affirmation:

“I do solemnly swear [or affirm] that I will faithfully and conscientiously fulfill my duties as President [or Vice-President or Acting President] of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Nation. So help me God.” [In case of affirmation, last sentence will be omitted].

Section 6. The President shall have an official residence. The salaries of the President and Vice-President shall be determined by law and shall not be decreased during their tenure. No increase in said compensation shall take effect until after the expiration of the term of the incumbent during which such increase was approved. They shall not receive during their tenure any other emolument from the Government or any other source.
Section 7. The President-elect and the Vice President-elect shall assume office at the beginning of their terms.

If the President-elect fails to qualify, the Vice President-elect shall act as President until the President-elect shall have qualified.

If a President shall not have been chosen, the Vice President-elect shall act as President until a President shall have been chosen and qualified.

If at the beginning of the term of the President, the President-elect shall have died or shall have become permanently disabled, the Vice President-elect shall become President.

Where no President and Vice-President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall act as President until a President or a Vice-President shall have been chosen and qualified.

The Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a President or a Vice-President shall have qualified, in case of death, permanent disability, or inability of the officials mentioned in the next preceding paragraph.

Section 8. In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice-President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice-President shall have been elected and qualified.

The Congress shall, by law, provide who shall serve as President in case of death, permanent disability, or resignation of the Acting President. He shall serve until the President or the Vice-President shall have been elected and qualified, and be subject to the same restrictions of powers and disqualifications as the Acting President.

Section 9. Whenever there is a vacancy in the Office of the Vice-President during the term for which he was elected, the President shall nominate a Vice-President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately.

Section 10. The Congress shall, at ten o’clock in the morning of the third day after the vacancy in the offices of the President and Vice-President occurs, convene in accordance with its rules without need of a call and within seven days, enact a law calling for a special election to elect a President and a Vice-President to be held not earlier than forty-five days nor later than sixty days from the time of such call. The bill calling such special election shall be deemed certified under paragraph 2, Section 26, Article V1 of this Constitution and shall become law upon its approval on third reading by the Congress. Appropriations for the special election shall be charged against any current appropriations and shall be exempt from the requirements of paragraph 4, Section 25, Article V1 of this Constitution. The convening of the Congress cannot be suspended nor the special election postponed. No special election shall be called if the vacancy occurs within eighteen months before the date of the next presidential election.

Section 11. Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate and to the Speaker of the House of Representatives, their written declaration that the President is unable to discharge the powers and duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office.

Section 12. In case of serious illness of the President, the public shall be informed of the state of his health. The members of the Cabinet in charge of national security and foreign relations and the Chief of Staff of the Armed Forces of the Philippines, shall not be denied access to the President during such illness.

Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure, be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.

Section 14. Appointments extended by an Acting President shall remain effective, unless revoked by the elected President, within ninety days from his assumption or reassumption of office.

Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproved by the Commission on Appointments or until the next adjournment of the Congress.

Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ ofhabeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus.

The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion.

During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.

Section 20. The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the calendar year, submit to the Congress a complete report of its decision on applications for loans to be contracted or guaranteed by the Government or government-owned and controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law.

Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.

Section 22. The President shall submit to the Congress, within thirty days from the opening of every regular session as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures.

Section 23. The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time.
ARTICLE VIII
JUDICIAL DEPARTMENT
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

Section 2. The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof.

No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its Members.

Section 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released.

Section 4. (1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.

(2) All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.

(3) Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case without the concurrence of at least three of such Members. When the required number is not obtained, the case shall be decided en banc: Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.

Section 5. The Supreme Court shall have the following powers:

1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.(c) All cases in which the jurisdiction of any lower court is in issue.(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.(e) All cases in which only an error or question of law is involved.(3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned.(4) Order a change of venue or place of trial to avoid a miscarriage of justice.(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

(6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law.

Section 6. The Supreme Court shall have administrative supervision over all courts and the personnel thereof.
Section 7. (1) No person shall be appointed Member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of the Philippines. A Member of the Supreme Court must be at least forty years of age, and must have been for fifteen years or more, a judge of a lower court or engaged in the practice of law in the Philippines.

(2) The Congress shall prescribe the qualifications of judges of lower courts, but no person may be appointed judge thereof unless he is a citizen of the Philippines and a member of the Philippine Bar.

(3) A Member of the Judiciary must be a person of proven competence, integrity, probity, and independence.

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.

(2) The regular members of the Council shall be appointed by the President for a term of four years with the consent of the Commission on Appointments. Of the Members first appointed, the representative of the Integrated Bar shall serve for four years, the professor of law for three years, the retired Justice for two years, and the representative of the private sector for one year.

(3) The Clerk of the Supreme Court shall be the Secretary ex officio of the Council and shall keep a record of its proceedings.

(4) The regular Members of the Council shall receive such emoluments as may be determined by the Supreme Court. The Supreme Court shall provide in its annual budget the appropriations for the Council.

(5) The Council shall have the principal function of recommending appointees to the Judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it.

Section 9. The Members of the Supreme Court and judges of the lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.

For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.

Section 10. The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower courts, shall be fixed by law. During their continuance in office, their salary shall not be decreased.

Section 11. The Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.

Section 12. The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions.

Section 13. The conclusions of the Supreme Court in any case submitted to it for decision en bancor in division shall be reached in consultation before the case is assigned to a Member for the writing of the opinion of the Court. A certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and served upon the parties. Any Members who took no part, or dissented, or abstained from a decision or resolution, must state the reason therefor. The same requirements shall be observed by all lower collegiate courts.

Section 14. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.

No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor.

Section 15. (1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts.

(2) A case or matter shall be deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the Rules of Court or by the court itself.

(3) Upon the expiration of the corresponding period, a certification to this effect signed by the Chief Justice or the presiding judge shall forthwith be issued and a copy thereof attached to the record of the case or matter, and served upon the parties. The certification shall state why a decision or resolution has not been rendered or issued within said period.

(4) Despite the expiration of the applicable mandatory period, the court, without prejudice to such responsibility as may have been incurred in consequence thereof, shall decide or resolve the case or matter submitted thereto for determination, without further delay.

Section 16. The Supreme Court shall, within thirty days from the opening of each regular session of the Congress, submit to the President and the Congress an annual report on the operations and activities of the Judiciary.
ARTICLE IX

  1. COMMON PROVISIONS
  2. Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit.
    Section 2. No member of a Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in the practice of any profession or in the active management or control of any business which, in any way, may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations or their subsidiaries.

Section. 3. The salary of the Chairman and the Commissioners shall be fixed by law and shall not be decreased during their tenure.

Section 4. The Constitutional Commissions shall appoint their officials and employees in accordance with law.

Section 5. The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall be automatically and regularly released.

Section 6. Each Commission en banc may promulgate its own rules concerning pleadings and practice before it or before any of its offices. Such rules, however, shall not diminish, increase, or modify substantive rights.

Section 7. Each Commission shall decide by a majority vote of all its Members, any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

Section 8. Each Commission shall perform such other functions as may be provided by law.

  1. THE CIVIL SERVICE COMMISSION

Section 1. (1) The civil service shall be administered by the Civil Service Commission composed of a Chairman and two Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, with proven capacity for public administration, and must not have been candidates for any elective position in the elections immediately preceding their appointment.
(2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, a Commissioner for five years, and another Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.

Section 2. (1) The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters.

(2) Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and, except to positions which are policy-determining, primarily confidential, or highly technical, by competitive examination.

(3) No officer or employee of the civil service shall be removed or suspended except for cause provided by law.

(4) No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign.

(5) The right to self-organization shall not be denied to government employees.

(6) Temporary employees of the Government shall be given such protection as may be provided by law.

Section 3. The Civil Service Commission, as the central personnel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. It shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability. It shall submit to the President and the Congress an annual report on its personnel programs.

Section 4. All public officers and employees shall take an oath or affirmation to uphold and defend this Constitution.

Section 5. The Congress shall provide for the standardization of compensation of government officials and employees, including those in government-owned or controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for, their positions.

Section 6. No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government or any Government-owned or controlled corporations or in any of their subsidiaries.

Section 7. No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including Government-owned or controlled corporations or their subsidiaries.

Section 8. No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government.

Pensions or gratuities shall not be considered as additional, double, or indirect compensation.

  1. THE COMMISSION ON ELECTIONS

Section 1. (1) There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective positions in the immediately preceding elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years.
(2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable.

(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters.

(4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections.

(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must present their platform or program of government; and accredit citizens’ arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign government shall likewise be refused registration.

Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections, constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law.

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices.

(7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies.

(8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to, its directive, order, or decision.

(9) Submit to the President and the Congress, a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall.

Section 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre- proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.
Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, and equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.

Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation of the Commission.

Section 6. A free and open party system shall be allowed to evolve according to the free choice of the people, subject to the provisions of this Article.

Section 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered under the party-list system as provided in this Constitution.

Section 8. Political parties, or organizations or coalitions registered under the party-list system, shall not be represented in the voters’ registration boards, boards of election inspectors, boards of canvassers, or other similar bodies. However, they shall be entitled to appoint poll watchers in accordance with law.

Section 9. Unless otherwise fixed by the Commission in special cases, the election period shall commence ninety days before the day of election and shall end thirty days thereafter.

Section 10. Bona fide candidates for any public office shall be free from any form of harassment and discrimination.

Section 11. Funds certified by the Commission as necessary to defray the expenses for holding regular and special elections, plebiscites, initiatives, referenda, and recalls, shall be provided in the regular or special appropriations and, once approved, shall be released automatically upon certification by the Chairman of the Commission.

  1. THE COMMISSION ON AUDIT

Section 1. (1) There shall be a Commission on Audit composed of a Chairman and two Commissioners, who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, Certified Public Accountants with not less than ten years of auditing experience, or members of the Philippine Bar who have been engaged in the practice of law for at least ten years, and must not have been candidates for any elective position in the elections immediately preceding their appointment. At no time shall all Members of the Commission belong to the same profession.
(2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, one Commissioner for five years, and the other Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.

Section 2. (1) The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations with original charters, and on a post- audit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution; (b) autonomous state colleges and universities; (c) other government-owned or controlled corporations and their subsidiaries; and (d) such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the Government, which are required by law or the granting institution to submit to such audit as a condition of subsidy or equity. However, where the internal control system of the audited agencies is inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies. It shall keep the general accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other supporting papers pertaining thereto.

(2) The Commission shall have exclusive authority, subject to the limitations in this Article, to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures or uses of government funds and properties.

Section 3. No law shall be passed exempting any entity of the Government or its subsidiaries in any guise whatever, or any investment of public funds, from the jurisdiction of the Commission on Audit.

Section 4. The Commission shall submit to the President and the Congress, within the time fixed by law, an annual report covering the financial condition and operation of the Government, its subdivisions, agencies, and instrumentalities, including government-owned or controlled corporations, and non-governmental entities subject to its audit, and recommend measures necessary to improve their effectiveness and efficiency. It shall submit such other reports as may be required by law.
ARTICLE X
LOCAL GOVERNMENT
GENERAL PROVISIONS

Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided.
Section 2. The territorial and political subdivisions shall enjoy local autonomy.

Section 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units.

Section 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays, shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.

Section 5. Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments.

Section 6. Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them.

Section 7. Local governments shall be entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas, in the manner provided by law, including sharing the same with the inhabitants by way of direct benefits.

Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

Section 9. Legislative bodies of local governments shall have sectoral representation as may be prescribed by law.

Section 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

Section 11. The Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executive and legislative assemblies. The jurisdiction of the metropolitan authority that will thereby be created shall be limited to basic services requiring coordination.

Section 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials.

Section 13. Local government units may group themselves, consolidate or coordinate their efforts, services, and resources for purposes commonly beneficial to them in accordance with law.

Section 14. The President shall provide for regional development councils or other similar bodies composed of local government officials, regional heads of departments and other government offices, and representatives from non-governmental organizations within the regions for purposes of administrative decentralization to strengthen the autonomy of the units therein and to accelerate the economic and social growth and development of the units in the region.
AUTONOMOUS REGIONS
Section 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.
Section 16. The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed.

Section 17. All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government.

Section 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multi-sectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws.

The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.

Section 19. The first Congress elected under this Constitution shall, within eighteen months from the time of organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and the Cordilleras.

Section 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over:

(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.
Section 21. The preservation of peace and order within the regions shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of the regions shall be the responsibility of the National Government.

ARTICLE XI
ACCOUNTABILITY OF PUBLIC OFFICERS
Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.
Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

Section 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution or endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

(6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.

(7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law.

(8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.

Section 4. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law.

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed.

Section 6. The officials and employees of the Office of the Ombudsman, other than the Deputies, shall be appointed by the Ombudsman, according to the Civil Service Law.

Section 7. The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution.

Section 8. The Ombudsman and his Deputies shall be natural-born citizens of the Philippines, and at the time of their appointment, at least forty years old, of recognized probity and independence, and members of the Philippine Bar, and must not have been candidates for any elective office in the immediately preceding election. The Ombudsman must have, for ten years or more, been a judge or engaged in the practice of law in the Philippines.

During their tenure, they shall be subject to the same disqualifications and prohibitions as provided for in Section 2 of Article 1X-A of this Constitution.

Section 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be filled within three months after they occur.

Section 10. The Ombudsman and his Deputies shall have the rank of Chairman and Members, respectively, of the Constitutional Commissions, and they shall receive the same salary which shall not be decreased during their term of office.

Section 11. The Ombudsman and his Deputies shall serve for a term of seven years without reappointment. They shall not be qualified to run for any office in the election immediately succeeding their cessation from office.

Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.

Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.(2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.

(3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.

(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action.

(5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents.

(6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence.

(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency.

(8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.

Section 14. The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and regularly released.
Section 15. The right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, laches, or estoppel.

Section 16. No loan, guaranty, or other form of financial accommodation for any business purpose may be granted, directly or indirectly, by any government-owned or controlled bank or financial institution to the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, and the Constitutional Commissions, the Ombudsman, or to any firm or entity in which they have controlling interest, during their tenure.

Section 17. A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.

Section 18. Public officers and employees owe the State and this Constitution allegiance at all times and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law.
ARTICLE XII
NATIONAL ECONOMY AND PATRIMONY
Section 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the under-privileged.

The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership.

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish- workers in rivers, lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.

Section 3. Lands of the public domain are classified into agricultural, forest or timber, mineral lands and national parks. Agricultural lands of the public domain may be further classified by law according to the uses to which they may be devoted. Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and not to exceed one thousand hectares in area. Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof, by purchase, homestead, or grant.

Taking into account the requirements of conservation, ecology, and development, and subject to the requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the public domain which may be acquired, developed, held, or leased and the conditions therefor.

Section 4. The Congress shall, as soon as possible, determine, by law, the specific limits of forest lands and national parks, marking clearly their boundaries on the ground. Thereafter, such forest lands and national parks shall be conserved and may not be increased nor diminished, except by law. The Congress shall provide for such period as it may determine, measures to prohibit logging in endangered forests and watershed areas.

Section 5. The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being.

The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain.

Section 6. The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands.

Section 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.

Section 8. Notwithstanding the provisions of Section 7 of this Article, a natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations provided by law.

Section 9. The Congress may establish an independent economic and planning agency headed by the President, which shall, after consultations with the appropriate public agencies, various private sectors, and local government units, recommend to Congress, and implement continuing integrated and coordinated programs and policies for national development.

Until the Congress provides otherwise, the National Economic and Development Authority shall function as the independent planning agency of the government.

Section 10. The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities.

Section 11. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines, at least sixty per centum of whose capital is owned by such citizens; nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines.

Section 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive.

Section 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity.

Section 14. The sustained development of a reservoir of national talents consisting of Filipino scientists, entrepreneurs, professionals, managers, high-level technical manpower and skilled workers and craftsmen in all fields shall be promoted by the State. The State shall encourage appropriate technology and regulate its transfer for the national benefit.

The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law.

Section 15. The Congress shall create an agency to promote the viability and growth of cooperatives as instruments for social justice and economic development.

Section 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability.

Section 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest.

Section 18. The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the Government.

Section 19. The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed.

Section 20. The Congress shall establish an independent central monetary authority, the members of whose governing board must be natural-born Filipino citizens, of known probity, integrity, and patriotism, the majority of whom shall come from the private sector. They shall also be subject to such other qualifications and disabilities as may be prescribed by law. The authority shall provide policy direction in the areas of money, banking, and credit. It shall have supervision over the operations of banks and exercise such regulatory powers as may be provided by law over the operations of finance companies and other institutions performing similar functions.

Until the Congress otherwise provides, the Central Bank of the Philippines operating under existing laws, shall function as the central monetary authority.

Section 21. Foreign loans may only be incurred in accordance with law and the regulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public.

Section 22. Acts which circumvent or negate any of the provisions of this Article shall be considered inimical to the national interest and subject to criminal and civil sanctions, as may be provided by law.
ARTICLE XIII
SOCIAL JUSTICE AND HUMAN RIGHTS
Section 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.

Section 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance.
LABOR
Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and   promote full employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.
AGRARIAN AND NATURAL RESOURCES REFORM
Section 4. The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the right of small landowners. The State shall further provide incentives for voluntary land-sharing.
Section 5. The State shall recognize the right of farmers, farmworkers, and landowners, as well as cooperatives, and other independent farmers’ organizations to participate in the planning, organization, and management of the program, and shall provide support to agriculture through appropriate technology and research, and adequate financial, production, marketing, and other support services.

Section 6. The State shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands.

The State may resettle landless farmers and farmworkers in its own agricultural estates which shall be distributed to them in the manner provided by law.

Section 7. The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources.

Section 8. The State shall provide incentives to landowners to invest the proceeds of the agrarian reform program to promote industrialization, employment creation, and privatization of public sector enterprises. Financial instruments used as payment for their lands shall be honored as equity in enterprises of their choice.
URBAN LAND REFORM AND HOUSING
Section 9. The State shall, by law, and for the common good, undertake, in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost, decent housing and basic services to under-privileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners.
Section 10. Urban or rural poor dwellers shall not be evicted nor their dwelling demolished, except in accordance with law and in a just and humane manner.

No resettlement of urban or rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be relocated.
HEALTH
Section 11. The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all the people at affordable cost. There shall be priority for the needs of the under-privileged, sick, elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug regulatory system and undertake appropriate health, manpower development, and research, responsive to the country’s health needs and problems.

Section 13. The State shall establish a special agency for disabled person for their rehabilitation, self-development, and self-reliance, and their integration into the mainstream of society.
WOMEN
Section 14. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation.
ROLE AND RIGHTS OF PEOPLE’S ORGANIZATIONS
Section 15. The State shall respect the role of independent people’s organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means.
People’s organizations are bona fide associations of citizens with demonstrated capacity to promote the public interest and with identifiable leadership, membership, and structure.

Section 16. The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms.
HUMAN RIGHTS
Section 17. (1) There is hereby created an independent office called the Commission on Human Rights.
(2) The Commission shall be composed of a Chairman and four Members who must be natural-born citizens of the Philippines and a majority of whom shall be members of the Bar. The term of office and other qualifications and disabilities of the Members of the Commission shall be provided by law.

(3) Until this Commission is constituted, the existing Presidential Committee on Human Rights shall continue to exercise its present functions and powers.

(4) The approved annual appropriations of the Commission shall be automatically and regularly released.

Section 18. The Commission on Human Rights shall have the following powers and functions:

(1) Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights;

(2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court;

(3) Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the under-privileged whose human rights have been violated or need protection;

(4) Exercise visitorial powers over jails, prisons, or detention facilities;

(5) Establish a continuing program of research, education, and information to enhance respect for the primacy of human rights;

(6) Recommend to Congress effective measures to promote human rights and to provide for compensation to victims of violations of human rights, or their families;

(7) Monitor the Philippine Government’s compliance with international treaty obligations on human rights;

(8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority;

(9) Request the assistance of any department, bureau, office, or agency in the performance of its functions;

(10) Appoint its officers and employees in accordance with law; and

(11) Perform such other duties and functions as may be provided by law.

Section 19. The Congress may provide for other cases of violations of human rights that should fall within the authority of the Commission, taking into account its recommendations.
ARTICLE XIV

EDUCATION, SCIENCE AND TECHNOLOGY, ARTS,CULTURE AND SPORTS EDUCATION
Section 1. The State shall protect and promote the right of all citizens to quality education at all levels, and shall take appropriate steps to make such education accessible to all.
Section 2. The State shall:

(1) Establish, maintain, and support a complete, adequate, and integrated system of education relevant to the needs of the people and society;

(2) Establish and maintain, a system of free public education in the elementary and high school levels. Without limiting the natural rights of parents to rear their children, elementary education is compulsory for all children of school age;

(3) Establish and maintain a system of scholarship grants, student loan programs, subsidies, and other incentives which shall be available to deserving students in both public and private schools, especially to the under-privileged;

(4) Encourage non-formal, informal, and indigenous learning systems, as well as self-learning, independent, and out-of-school study programs particularly those that respond to community needs; and

(5) Provide adult citizens, the disabled, and out-of-school youth with training in civics, vocational efficiency, and other skills.

Section 3. (1) All educational institutions shall include the study of the Constitution as part of the curricula.

(2) They shall inculcate patriotism and nationalism, foster love of humanity, respect for human rights, appreciation of the role of national heroes in the historical development of the country, teach the rights and duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline, encourage critical and creative thinking, broaden scientific and technological knowledge, and promote vocational efficiency.

(3) At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government.

Section 4.(1) The State recognizes the complementary roles of public and private institutions in the educational system and shall exercise reasonable supervision and regulation of all educational institutions.

(2) Educational institutions, other than those established by religious groups and mission boards, shall be owned solely by citizens of the Philippines or corporations or associations at least sixtyper centum of the capital of which is owned by such citizens. The Congress may, however, require increased Filipino equity participation in all educational institutions.

The control and administration of educational institutions shall be vested in citizens of the Philippines.

No educational institution shall be established exclusively for aliens and no group of aliens shall comprise more than one-third of the enrollment in any school. The provisions of this subsection shall not apply to schools established for foreign diplomatic personnel and their dependents and, unless otherwise provided by law, for other foreign temporary residents.

(3) All revenues and assets of non-stock, non-profit educational institutions used actually, directly, and exclusively for educational purposes shall be exempt from taxes and duties. Upon the dissolution or cessation of the corporate existence of such institutions, their assets shall be disposed of in the manner provided by law.

Proprietary educational institutions, including those cooperatively owned, may likewise be entitled to such exemptions, subject to the limitations provided by law, including restrictions on dividends and provisions for reinvestment.

(4) Subject to conditions prescribed by law, all grants, endowments, donations, or contributions used actually, directly, and exclusively for educational purposes shall be exempt from tax.

Section 5. (1) the State shall take into account regional and sectoral needs and conditions and shall encourage local planning in the development of educational policies and programs.

(2) Academic freedom shall be enjoyed in all institutions of higher learning.

(3) Every citizen has a right to select a profession or course of study, subject to fair, reasonable, and equitable admission and academic requirements.

(4) The State shall enhance the right of teachers to professional advancement. Non-teaching academic and non-academic personnel shall enjoy the protection of the State.

(5) The State shall assign the highest budgetary priority to education and ensure that teaching will attract and retain its rightful share of the best available talents through adequate remuneration and other means of job satisfaction and fulfillment.

ARTS AND CULTURE
Section 14. The State shall foster the preservation, enrichment, and dynamic evolution of a Filipino national culture based on the principle of unity in diversity in a climate of free artistic and intellectual expression.
Section 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nation’s historical and cultural heritage and resources, as well as artistic creations.

Section 16. All the country’s artistic and historic wealth constitutes the cultural treasure of the nation and shall be under the protection of the State which may regulate its disposition.

Section 17. The State shall recognize, respect, and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of national plans and policies.

Section 18. (1) The State shall ensure equal access to cultural opportunities through the educational system, public or private cultural entities, scholarships, grants and other incentives, and community cultural centers, and other public venues.

(2) The State shall encourage and support researches and studies on the arts and culture.
LANGUAGE
Section 6. The national language of the Philippines is Filipino. As it evolves, it shall be further developed and enriched on the basis of existing Philippine and other languages.
Subject to provisions of law and as the Congress may deem appropriate, the Government shall take steps to initiate and sustain the use of Filipino as a medium of official communication and as language of instruction in the educational system.

Section 7. For purposes of communication and instruction, the official languages of the Philippines are Filipino and, until otherwise provided by law, English.

The regional languages are the auxiliary official languages in the regions and shall serve as auxiliary media of instruction therein.

Spanish and Arabic shall be promoted on a voluntary and optional basis.

Section 8. This Constitution shall be promulgated in Filipino and English and shall be translated into major regional languages, Arabic, and Spanish.

Section 9. The Congress shall establish a national language commission composed of representatives of various regions and disciplines which shall undertake, coordinate, and promote researches for the development, propagation, and preservation of Filipino and other languages.
SCIENCE AND TECHNOLOGY
Section 10. Science and technology are essential for national development and progress. The State shall give priority to research and development, invention, innovation, and their utilization; and to science and technology education, training, and services. It shall support indigenous, appropriate, and self-reliant scientific and technological capabilities, and their application to the country’s productive systems and national life.
Section 11. The Congress may provide for incentives, including tax deductions, to encourage private participation in programs of basic and applied scientific research. Scholarships, grants-in-aid, or other forms of incentives shall be provided to deserving science students, researchers, scientists, inventors, technologists, and specially gifted citizens.

Section 12. The State shall regulate the transfer and promote the adaptation of technology from all sources for the national benefit. It shall encourage the widest participation of private groups, local governments, and community-based organizations in the generation and utilization of science and technology.

Section 13. The State shall protect and secure the exclusive rights of scientists, inventors, artists, and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such period as may be provided by law.
SPORTS
Section 19. (1) The State shall promote physical education and encourage sports programs, league competitions, and amateur sports, including training for international competitions, to foster self-discipline, teamwork, and excellence for the development of a healthy and alert citizenry.

(2) All educational institutions shall undertake regular sports activities throughout the country in cooperation with athletic clubs and other sectors.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.

Section 3. The State shall defend:

(1) The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood;(2) The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development;(3) The right of the family to a family living wage and income; and(4) The right of families or family associations to participate in the planning and implementation of policies and programs that affect them.

Section 4. The family has the duty to care for its elderly members but the State may also do so through just programs of social security.
ARTICLE XVI
GENERAL PROVISIONS
Section 1. The flag of the Philippines shall be red, white, and blue, with a sun and three stars, as consecrated and honored by the people and recognized by law.
Section 2. The Congress may, by law, adopt a new name for the country, a national anthem, or a national seal, which shall all be truly reflective and symbolic of the ideals, history, and traditions of the people. Such law shall take effect only upon its ratification by the people in a national referendum.

Section 3. The State may not be sued without its consent.

Section 4. The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and serve as may be provided by law. It shall keep a regular force necessary for the security of the State.

Section 5. (1) All members of the armed forces shall take an oath or affirmation to uphold and defend this Constitution.

(2) The State shall strengthen the patriotic spirit and nationalist consciousness of the military, and respect for people’s rights in the performance of their duty.

(3) Professionalism in the armed forces and adequate remuneration and benefits of its members shall be a prime concern of the State. The armed forces shall be insulated from partisan politics.

No member of the military shall engage, directly or indirectly, in any partisan political activity, except to vote.

(4) No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their subsidiaries.

(5) Laws on retirement of military officers shall not allow extension of their service.

(6) The officers and men of the regular force of the armed forces shall be recruited proportionately from all provinces and cities as far as practicable.

(7) The tour of duty of the Chief of Staff of the armed forces shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty.

Section 6. The State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law.

Section 7. The State shall provide immediate and adequate care, benefits, and other forms of assistance to war veterans and veterans of military campaigns, their surviving spouses and orphans. Funds shall be provided therefor and due consideration shall be given them in the disposition of agricultural lands of the public domain and, in appropriate cases, in the utilization of natural resources.

Section 8. The State shall, from time to time, review to increase the pensions and other benefits due to retirees of both the government and the private sectors.

Section 9. The State shall protect consumers from trade malpractices and from substandard or hazardous products.

Section 10. The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.

Section 11. (1) The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens.

The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed.

(2) The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare.

Only Filipino citizens or corporations or associations at least seventy per centum of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry.

The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof, and all the executive and managing officers of such entities must be citizens of the Philippines.

Section 12. The Congress may create a consultative body to advise the President on policies affecting indigenous cultural communities, the majority of the members of which shall come from such communities.
ARTICLE XVII
AMENDMENTS OR REVISIONS
Section 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members; or(2) A constitutional convention.

Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.

Section 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.

Section 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision.

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition.
ARTICLE XVIII
TRANSITORY PROVISIONS
Section 1. The first elections of Members of the Congress under this Constitution shall be held on the second Monday of May, 1987.
The first local elections shall be held on a date to be determined by the President, which may be simultaneous with the election of the Members of the Congress. It shall include the election of all Members of the city or municipal councils in the Metropolitan Manila area.

Section 2. The Senators, Members of the House of Representatives, and the local officials first elected under this Constitution shall serve until noon of June 30, 1992.

Of the Senators elected in the elections in 1992, the first twelve obtaining the highest number of votes shall serve for six years and the remaining twelve for three years.

Section 3. All existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked.

Section 4. All existing treaties or international agreements which have not been ratified shall not be renewed or extended without the concurrence of at least two-thirds of all the Members of the Senate.

Section 5. The six-year term of the incumbent President and Vice-President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992.

The first regular elections for the President and Vice-President under this Constitution shall be held on the second Monday of May, 1992.

Section 6. The incumbent President shall continue to exercise legislative powers until the first Congress is convened.

Section 7. Until a law is passed, the President may fill by appointment from a list of nominees by the respective sectors, the seats reserved for sectoral representation in paragraph (2), Section 5 of Article V1 of this Constitution.

Section 8. Until otherwise provided by the Congress, the President may constitute the Metropolitan Manila Authority to be composed of the heads of all local government units comprising the Metropolitan Manila area.

Section 9. A sub-province shall continue to exist and operate until it is converted into a regular province or until its component municipalities are reverted to the mother province.

Section 10. All courts existing at the time of the ratification of this Constitution shall continue to exercise their jurisdiction, until otherwise provided by law. The provisions of the existing Rules of Court, judiciary acts, and procedural laws not inconsistent with this Constitution shall remain operative unless amended or repealed by the Supreme Court or the Congress.

Section 11. The incumbent Members of the Judiciary shall continue in office until they reach the age of seventy years or become incapacitated to discharge the duties of their office or are removed for cause.

Section 12. The Supreme Court shall, within one year after the ratification of this Constitution, adopt a systematic plan to expedite the decision or resolution of cases or matters pending in the Supreme Court or the lower courts prior to the effectivity of this Constitution. A similar plan shall be adopted for all special courts and quasi-judicial bodies.

Section 13. The legal effect of the lapse, before the ratification of this Constitution, of the applicable period for the decision or resolution of the cases or matters submitted for adjudication by the courts, shall be determined by the Supreme Court as soon as practicable.

Section 14. The provisions of paragraphs (3) and (4), Section 15 of Article VIII of this Constitution shall apply to cases or matters filed before the ratification of this Constitution, when the applicable period lapses after such ratification.

Section 15. The incumbent Members of the Civil Service Commission, the Commission on Elections, and the Commission on Audit shall continue in office for one year after the ratification of this Constitution, unless they are sooner removed for cause or become incapacitated to discharge the duties of their office or appointed to a new term thereunder. In no case shall any Member serve longer than seven years including service before the ratification of this Constitution.

Section 16. Career civil service employees separated from the service not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of general application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be considered for employment in the Government or in any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries. This provision also applies to career officers whose resignation, tendered in line with the existing policy, had been accepted.

Section 17. Until the Congress provides otherwise, the President shall receive an annual salary of three hundred thousand pesos; the Vice-President, the President of the Senate, the Speaker of the House of Representatives, and the Chief Justice of the Supreme Court, two hundred forty thousand pesos each; the Senators, the Members of the House of Representatives, the Associate Justices of the Supreme Court, and the Chairmen of the Constitutional Commissions, two hundred four thousand pesos each; and the Members of the Constitutional Commissions, one hundred eighty thousand pesos each.

Section 18. At the earliest possible time, the Government shall increase the salary scales of the other officials and employees of the National Government.

Section 19. All properties, records, equipment, buildings, facilities, and other assets of any office or body abolished or reorganized under Proclamation No. 3 dated March 25, 1986 or this Constitution shall be transferred to the office or body to which its powers, functions, and responsibilities substantially pertain.

Section 20. The first Congress shall give priority to the determination of the period for the full implementation of free public secondary education.

Section 21. The Congress shall provide efficacious procedures and adequate remedies for the reversion to the State of all lands of the public domain and real rights connected therewith which were acquired in violation of the Constitution or the public land laws, or through corrupt practices. No transfer or disposition of such lands or real rights shall be allowed until after the lapse of one year from the ratification of this Constitution.

Section 22. At the earliest possible time, the Government shall expropriate idle or abandoned agricultural lands as may be defined by law, for distribution to the beneficiaries of the agrarian reform program.

Section 23. Advertising entities affected by paragraph (2), Section 11 of Article XV1 of this Constitution shall have five years from its ratification to comply on a graduated and proportionate basis with the minimum Filipino ownership requirement therein.

Section 24. Private armies and other armed groups not recognized by duly constituted authority shall be dismantled. All paramilitary forces including Civilian Home Defense Forces not consistent with the citizen armed force established in this Constitution, shall be dissolved or, where appropriate, converted into the regular force.

Section 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning military bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.

Section 26. The authority to issue sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986 in relation to the recovery of ill-gotten wealth shall remain operative for not more than eighteen months after the ratification of this Constitution. However, in the national interest, as certified by the President, the Congress may extend such period.

A sequestration or freeze order shall be issued only upon showing of a prima facie case. The order and the list of the sequestered or frozen properties shall forthwith be registered with the proper court. For orders issued before the ratification of this Constitution, the corresponding judicial action or proceeding shall be filed within six months from its ratification. For those issued after such ratification, the judicial action or proceeding shall be commenced within six months from the issuance thereof.

The sequestration or freeze order is deemed automatically lifted if no judicial action or proceeding is commenced as herein provided.

Section 27. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions.

The foregoing proposed Constitution of the Republic of the Philippines was approved by the Constitutional Commission of 1986 on the twelfth day of October, Nineteen hundred and eighty-six, and accordingly signed on the fifteenth day of October, Nineteen hundred and eighty-six at the Plenary Hall, National Government Center, Quezon City, by the Commissioners whose signatures are hereunder affixed.

 

Constitution of the United Kingdom

Apart from some parliamentary legislations, The United Kingdom never enacted any single document called as ‘ Constitution of United Kingdom ‘ or such. Having said so nonetheless following legislations have constitutional effects. Therefore, it can be safely said that the British constitution is a collection of important legislations which formulate the basic policy of the State and its People.

Following Laws featuring as constitutionally important as the subject connected therewith  :

  1. Treaty of Union 1706
  2. Acts of Union 1707
  3. Wales and Berwick Act 1746
  4. Irish Constitution 1782
  5. Acts of Union 1800
  6. Parliament Act 1911
  7. Government of Ireland Act 1920
  8. Anglo-Irish Treaty 1921
  9. Royal and Parliamentary Titles Act 1927
  10. Statute of Westminster 1931
  11. Parliament Act 1949
  12. EC Treaty of Accession 1972
  13. NI (Temporary Provisions) Act 1972
  14. European Communities Act 1972
  15. Local Government Act 1972
  16. Local Government (Scotland) Act 1973
  17. NI Border Poll 1973
  18. NI Constitution Act 1973
  19. Referendum Act 1975
  20. EC Membership Referendum 1975
  21. Scotland Act 1978
  22. Wales Act 1978
  23. Scottish Devolution Referendum 1979
  24. Welsh Devolution Referendum 1979
  25. Local Government (Wales) Act 1994
  26. Local Government etc. (Scotland) Act 1994
  27. Referendums (Scotland & Wales) Act 1997
  28. Scottish Devolution Referendum 1997
  29. Welsh Devolution Referendum 1997
  30. Good Friday Agreement 1998
  31. Northern Ireland Act 1998
  32. Government of Wales Act 1998
  33. Human Rights Act 1998
  34. Scotland Act 1998
  35. Government of Wales Act 2006
  36. Northern Ireland Act 2009
  37. Welsh Devolution Referendum 2011
  38. European Union Act 2011
  39. Fixed-term Parliaments Act 2011
  40. Scotland Act 2012
  41. Edinburgh Agreement 2012
  42. Scottish Independence Referendum 2014
  43. Wales Act 2014
  44. European Union Referendum Act 2015
  45. EU Membership Referendum 2016
  46. Scotland Act 2016
  47. Wales Act 2017
  48. EU (Notification of Withdrawal) Act 2017
  49. Invocation of Article 50 2017
  50. European Union (Withdrawal) Act 2018

Chiranjit Lal Chowdhuri Vs. The Union of India & Ors [ SC 1950 December]

KEYWORDS : Fundamental right of  company-eminent domain-

HELD : No one except those whose rights are directly affected by a law can raise the question of the constitutionality of that law.

  • The company and the shareholders are in law separate entities, and if the allegation is made that any property belonging to the company has been taken possession of without compensation or the right enjoyed by the company under article 19 (1) (f) has been infringed, it would be for the company to come forward to assert or vindicate its own rights and not for any individual shareholder to do so.

DATE : 1950. December 4.

CITATION: 1951 AIR 41 1950 SCR 869

ACT: Constitution of India, Arts. 14, 19 (1) (f), 19(5), 1, 32 And Sholapur Spinning and Weaving Company (Emergency Provisions) Act, 1950 (Act No. XXVIII of 1950)

SUPREME COURT OF INDIA

Chiranjit Lal Chowdhuri Vs. The Union of India & Ors 

KANIA HIRALAL J. (CJ)  FAZAL ALI SAIYID, SASTRI M. PATANJALI, MUKHERJEA B.K. , DAS,  SUDHI RANJAN

RATIO [4:1]  DAS J.As I have arrived at a conclusion different from that reached by the majority of this Court, I consider it proper, out of my respect for the opinion of my learned colleagues, to state the reasons for my conclusions in some detail.

ORIGINAL JURISDICTION: Petition No. 72 of 1950.

Petition under article 32 of the Constitution of India for a writ of mandamus.

V.K.T. Chari, J.S. Dawdo, Alladi Kuppuswami, and C.R. Pattabhi Raman, for the petitioner.

M.C. Setalvad, Attorney-General for India (G. N. Joshi with him) for opposite party Nos. 1 and 2.

G.N. Joshi, for opposite party Nos. 3 to 5 and 7 to 10. 1950.

December 4. The Court delivered Judgment as follows.

KANIA C.J.–This is an application by the holder of one ordinary share of the Sholapur Spinning and Weaving Company Ltd. for a writ of mandamus and certain other reliefs under article 32 of the Constitution of India. The authorized capital of the company is Rs. 48 lakhs and the paid-up capital is Rs. 32 lakhs, half of which is made up of fully paid ordinary shares of Rs. 1,000 each.

I have read the judgment prepared by Mr. Justice Mukherjea. In respect of the arguments advanced to challenge the validity of the impugned Act under articles 31 and 19 of the Constitution of India, I agree with his line of reasoning and conclusion and have nothing more to add. On the question whether the impugned Act infringes article 14, two points have to be considered.

The first is whether one individual shareholder can, under the circumstances of the case and particularly when one of the re- spondents is the company which opposes the petition, challenge the validity of the Act on the ground that it is a piece of discriminatory legislation, creates inequality before the law and violates the principle of equal protection of the laws under article 14 of the Constitution of India. The second is whether in fact the petitioner has shown that the Act runs contrary to article 14 of the Con- stitution. In this case having regard to my conclusion on the second point, I do not think it is necessary to pronounce a definite opinion on the first point. I agree with the line of reasoning and the conclusion of Mr. Justice Mukherjea as regards the second point relating to the invalidity of the Act on the ground that it infringes article 14 of the Constitution and have nothing more to add.

In my opinion therefore this petition fails and is dismissed with costs.

FAZL- ALI J.–I am strongly of the opinion that this petition should be dismissed with costs.
The facts urged in the petition and the points raised on behalf of the petitioner before us are fully set forth in the judgments of my brethren, Sastri, Mukherjea and Das JJ., and I do not wish to repeat them here. It is sufficient to say that the main grounds on which the Sholapur Spinning and Weaving Company (Emergency Provisions) Act, 1950 (Act No. XXVIII of 1950), which will hereinafter be referred to as “the Act”, has been assailed, is that it infringes three fundamental rights, these being:–
(1) the right to property secured by article 31 of the Constitution;
(2) the right to acquire, hold and dispose of property, guaranteed to every citizen by article 19 (1) (f); and

(3) the right to equal protection of the laws, guaran- teed by article 14.

It has been held in a number of cases in the United States of America that no one except those whose rights are directly affected by a law can raise the question of the constitutionality of that law. This principle has been very clearly stated by Hughes J. in McCabe v. Atchison(1), in these words :—“It is an elementary principle that in order to justify the granting of this extraordinary relief, the complainant’s need of it and the absence of an adequate remedy at law must clearly appear. The complainant cannot succeed because someone else may be hurt. Nor does it make any difference that other persons who may be injured are persons of the same race or occupation. It is the fact, clearly established, of injury to the complainant — not to others–which justifies judicial interference.” On this statement of the law, with which I entirely agree, the scope of the discussion on this petition is greatly restricted at least in regard to the first two fundamental rights. The company and the shareholders are in law separate entities, and if the allegation is made that any property belonging to the company has been taken possession of without compensa- tion or the right enjoyed by the company under article 19 (1) (f) has been infringed, it would be for the company to come forward to assert or vindicate its own rights and not for any individual shareholder to do so. In this view, the only question which has to be answered is whether the peti- tioner has succeeded in showing that there has been an infringement of his rights as a shareholder under articles 31 and 19 (1) (f) of the Constitution. This question has been so elaborately dealt with by Mukherjea J., that I do not wish to add anything to what he has said in his judg- ment, and all that is necessary for me to say is that I adopt his conclusions, (1) 235 u.s. 151. without committing myself to the acceptance of all his reasonings.

The only serious point, which in my opinion, arises in the case is whether article 14 of the Constitution is in any way infringed by the impugned Act. This article corresponds to the equal protection clause of the Fourteenth Amendment of the Constitution of the United States of America, which declares that “no State shall deny to any person within its jurisdiction the equal protection of the laws”. Professor Willis dealing with this clause sums up the law as prevail- ing in the United States in regard to it in these words:–
“Meaning and effect of the guaranty–The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. ‘It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and condi- tions both in the privileges conferred and in the liabili- ties imposed.’ ‘The inhibition of the amendment …. was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation’. It does not take from the states the power to classify either in the adoption of police laws, or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis. Mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis.”(‘) Having summed up the law in this way, the same learned author adds :–“Many different classifications (1) Constitutional Law by Prof. Willis, (1st Edition). p.579. of persons have been upheld as constitutional. A law apply- ing to one person or one class of persons is constitutional if there is sufficient basis or reason for it.” There can be no doubt that article 14 provides one of the most valuable and important guarantees in the Constitution which should not be allowed to be whittled down, and, while ac- cepting the statement of Professor Willis as a correct exposition of the principles underlying this guarantee, 1 wish to lay particular emphasis on the principle enunciated by him that any classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed.

The petitioner’s case is that the shareholders of the Sholapur company have been subjected to discrimination visa vis the shareholders of other companies, inasmuch as section 13 of the Act subjects them to the following disabilities which the shareholders of other companies governed by the Indian Companies Act are not subject to:-:
“(a) It shall not be lawful for the shareholders of the company or any other person to nominate or appoint any person to be a director of the company.
(b) No resolution passed at any meeting of the share- holders of the company shall be given effect to unless approved by the Central Government.
(c) No proceeding for the winding up of the company or for the appointment of a receiver in respect thereof shall lie in any court unless by or with the sanction of the Central Government.”
Primafacie, the argument appears to be a plausible one, but it requires a careful examination, and, while examining it, two principles have to be borne in mind :–(1) that a law may be constitutional even though it relates to a single individual, in those cases where on account of some special circumstances or reasons applicable to him and not applica- ble to others, that single individual may be treated as a class by himself; (2) that it is the accepted doctrine of the American courts, which I consider to be well-founded on principle, that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. A clear enunciation of this latter doctrine is to be found in Middleton v. Texas Power and Light Company(1), in which the relevant passage runs as follows :–
“It must be presumed that a legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds.”
The onus is therefore on the petitioner to show that the legislation which is impugned is arbitrary and unreasonable and there are other companies in the country which should have been subjected to the same disabilities, because the reasons which led the Legislature to impose State control upon the Sholapur company are equally applicable to them. So far as article 14 is concerned, the case of the share- holders is dependent upon the case of the company and if it could be held that the company has been legitimately sub- jected to such control as the Act provides without violation of the article, that would be a complete answer to the petitioner’s complaint.
Now, the petitioner has made no attempt to discharge the burden of proof to which I have referred, and we are merely asked to presume that there must necessarily be other compa- nies also which would be open to the charge of mismanagement and negligence. The question cannot in my opinion be treated so lightly. On the other hand, how important the doctrine of burden of proof is and how much harm can be caused by ignor- ing it or tinkering with it, will be fully illustrated, by referring to the proceedings in the Parliament in connec- tion with the enactment of the (1) 248 U.S. 1152,157.
Act, where the circumstances which necessitated it are clearly set out. I am aware that legislative proceedings cannot be referred to for the purpose of construing an Act or any of its provisions, but I believe that they are relevant for the proper understanding of the circumstances under which it was passed and the reasons which necessitat- ed it.
A reference to the Parliamentary proceedings shows that some time ago, a representation was made on behalf of a section of the shareholders of the Sholapur company to the Registrar of Joint Stock Companies in Bombay, against the conduct of the managing agents, and the Government of Bombay was moved to order a special inquiry into the affairs of the company. For the purpose of this inquiry, two special inspectors were appointed by the Bombay Government and their report revealed “certain astounding facts” and showed that the mill had been grossly mismanaged by the Board of Direc- tors and the managing agents. It also revealed that the persons who were responsible for the mismanagement were guilty of certain acts and omissions which brought them under the purview of the law. The Bombay Government accept- ed the report of the inspectors and instructed the Advocate General of Bombay to take legal proceedings against certain persons connected with the management of the company. Thereafter, the Government of India was approached by the Provincial Government and requiested to take special action in order to secure the early opening of the mill. The Government of India found that they had no power to take over the management of a particular mill, unless its working could be ensured through the existing management acting under the direction of a Controller appointed under the Essential Supplies Act, but they also found that a peculiar situation had been created in this case by the managing agents themselves being unable or unwilling to conduct the affairs of the company in a satisfactory and efficient manner. The Government of India, as a matter of precaution and lest it should be said that they were going to interfere unnecessarily in the affairs of the company and were not allowing the existing provisions of the law to take their own course, consulted other inter- ests and placed the matter before the Standing Committee of the Industrial Advisory Council where a large number of leading industrialists of the country were present, and ultimately it was realized that this was a case where the Government could rightly and properly intervene and there would be no occasion for any criticism coming from any quarter. It appears from the discussion on the floor of the House that the total number of weaving and spinning mills which were closed down for one reason or other was about 35 in number. Some of them are said to have closed for want of cotton, some due to overstocks, some for want o[ capital and some on account of mismanagement. The Minister for Indus- try, who sponsored the Bill, in explaining what distin- guished the case of the Sholapur mill from the other mills against whom there might be charges of mismanagement, made it clear in the course of the debate that “certain condi- tions had to be fulfilled before the Government can and should intervene”, and he set out these conditions as fol- lows :–
“(1) The undertaking must relate to an industry which is of national importance. Not each and every undertaking which may have to close down can be taken charge of tempo- rarily by Government.
(2) The undertaking must be an economic unit. If it appears that it is completely uneconomic and cannot be managed at all, there is no sense in Government taking charge of it. If anything, it will mean the Government will have to waste money which belongs to the taxpayer on an uneconomic unit.
(3) There must be a technical report as regards the condition of the plants, machinery, etc. which either as they stand, or after necessary repairs and reconditioning can be properly utilised.
(4) Lastly,–and this is of considerable importance- there must be a proper enquiry held before Government take any action. The enquiry should show that managing agents have so misbehaved that they are no longer fit and proper persons to remain in charge of such an impor- tant undertaking.”(1) It appears from the same proceedings that the Sholapur mill is one of the largest mills in Asia and employs 13,000 workers. Per shift, it is capable of producing 25 to 30 thousand pounds of yarn, and also one lakh yards of cloth. It was working two shifts when it was closed down on the 29th August, 1949. The closure of the mill meant a loss of 25 lakhs yards of cloth and one and a half lakhs pounds of yarn per month. Prior to 1947, the highest dividend paid by the company was Rs. 525 per share and the lowest Rs. 100, and, in 1948, when the management was taken over by the managing agents who have been removed by the impugned Act, the accounts showed a loss of Rs. 30 lakhs, while other textile companies had been able to show very substantial profits during the same period.
Another fact which is brought out in the proceedings is that the. managing agents had acquired control over the majority of the shares of the company and a large number of shareholders who were dissatisfied with the management had been rendered powerless and they could not make their voice heard. By reason of the preponderance of their strength, the managing agents made it impossible for a controller under the Essential Supplies Act to function and they also made it difficult for the company to run smoothly under the normal law.
It was against this background that the Act was passed, and it is evident that the facts which were placed before the Legislature with regard to the Sholaput mill were of an extraordinary character. and fully justified the company being treated as a class by itself. There were undoubtedly other mills which were open to the charge of mismanagement, but the criteria adopted by the Government which, in my opinion, cannot be said to be arbitrary or unreasonable, is not applicable (1) parliamentary Debates, Volume III, No. 14; 31st March 1950, pp.2394 5 to any of them. As we have seen, one of the criteria was that a mere allegation of mismanagement should not be enough and no drastic step such as is envisaged in the Act should be taken without there being a complete enquiry. In the case of the Sholapur mill, a complete enquiry had been made and the revelations which were made as a result of such enquiry were startling.
We are familiar with the expression “police power” which is in vogue in the United States of America. This expression simply denotes that in special cases the State can step in where its intervention seems necessary and impose special burdens for general benefit. As one of the judges has pointed out, “the regulations may press with more or less weight upon one than upon another, but they are designed not to impose unequal or unnecessary restrictions upon anyone, but to promote, with as little individual inconvenience as possible, the general good.”(1) It need not be emphasized that the principles underlying what is known as police power in the United States of America are not peculiar to that country, but are recognized in every modern civilized State. Professor Willis dealing with the question of classification in exercise of police power makes the following observa- tions:
“There is no rule for determining when classification for the police power is reasonable. It is a matter for judicial determination, but in determining the question of reasonableness the Courts must find some economic, political or other social interest to be secured, and some relation of the classification to the objects sought to be accomplished. In doing this the Courts may consider matters of common knowledge, matters o[ common report, tile history of the times, and to sustain it they will assume every state of facts which can be conceived of as existing at the time Of legislation. The fact that only one person or one object or one business or one locality is affected is not proof of denial of the equal protection of the laws. For such (1) Per Field J. in Barbier v. Connally. 113 U S. 27.

proof it must be shown that there is no reasonable basis for the classification.”

In this particular case, the Government initially took control of the Sholapur Company by means of an Ordinance (Ordinance No. II of 1950), of which the preamble runs as follows :-
“Whereas on account of mismanagement and neglect a situation has arisen in the affairs of the Sholapur Spinning and Weaving Company, Limited, which has prejudicially af- fected the production of an essential commodity and has caused serious unemployment amongst a certain section of the community;
And whereas an emergency has arisen which renders it necessary to make special provision for the proper manage- ment and administration of the aforesaid Company;
Now, therefore,…………………… ” In the course of the Parliamentary debate, reference was made to the fact that the country was facing an acute cloth shortage, and one of the reasons which apparently influenced the promulgation of the Ordinance and the passing of the Act was that the mismanagement of the company had gravely affected the production of an essential commodity. The facts relating to the mismanagement of this mill were care- fully collected and the mischief caused by the sudden clos- ing of the mill to the shareholders as well as to the gener- al public were fully taken into consideration. Therefore, it seems to me that to say that one particular mill has been arbitrarily and unreasonably selected and subjected to discriminatory treatment, would be an entirely wrong propo- sition.
Article 14 of the Constitution, as already stated, lays down an important fundamental right, which should be closely and vigilantly guarded, but, in construing it, we should not adopt a doctrinaire approach which might choke all benefi- cial legislation.
The facts to which I have referred are to be found in a public document, and, though some of them may (1) Constitutional Law by Prof. Willis (1st Edition) p. 580.
require further investigation forming as they do part of a one-sided version, yet they furnish good prima, facie grounds for the exercise of the utmost caution in deciding this case and for not departing from the ordinary rule as to the burden of proof. In the last resort, this petition can be disposed of on the simple ground that the petitioner has not discharged the onus which lies upon him, and I am quite prepared to rest my judgment on this ground alone.

I think that the petitioner has failed to make out any case for granting the writs or directions asked for, and the petition should therefore be dismissed with costs.

PATANJALI SASTRI J.–This is an application under article 32 of the Constitution seeking relief against alleged infringe- ment of certain fundamental rights of the petitioner. The petitioner is a shareholder of the Sholapur Spinning and Weaving Company, Limited, Sholapur, in tim State of Bombay, (hereinafter referred to as “the Company “). The authorised share capital of the Company consisted of 1590 fully paid up ordinary shares of Rs. 1,000 each, 20 fully paid up ordinary shares of Rs. 500 each and :32,000 partly paid up redeemable cumulative preference shares of Rs. 100 each, of which Rs. 50 only was paid up. Of these, the petitioner held one ordinary share in his own name and 80 preference shares which, however, having been pledged with the Bank of Baroda Ltd., now stand registered in the Bank’s name.
The company was doing flourishing business till disputes arose recently between the management and the employees, and in or about August, 1949, the mills were temporarily closed and the company, which was one of the largest producers of cotton textiles, ceased production. Thereupon, the Gover- nor-General intervened by promulgating on the 9th January, 1950, an Ordinance called the Sholapur Spinning and Weaving Company (Emergency Provisions) Ordinance (No. II’ of 1950), which empowered tim Government of India to take over the control and management of the company and its properties and effects by appointing their own Directors and to delegate all or any of their powers to the Provincial Government. In exercise of the powers thus delegated, the Government of Bombay appointed respondents 3 to 9 as Direc- tors to take charge of the management and administration of the properties and affairs of the company. Subsequently, on 10th April, ‘1950, the Ordinance was repealed and was re- placed by an Act of Parliament containing similar provisons, namely the Sholapur Spinning and Weaving Company (Emergency Provisions) Act (No. XXVIII of 1950) (hereinafter referred to as the “impugned Act”).
The petitioner complains that the impugned Act and the action of the Government of Bombay pursuant thereto have infringed the fundamental rights conferred on him by arti- cles 11, 19 and 31 of the Constitution with the result that the enactment is unconstitutional and void, and the inter- ference by the Government in the affairs of the company is unauthorised and illegal. He accordingly seeks relief by way of injunction and mandamus against the Union of India and the State of Bombay impfended as respondents 1 and 2 respec- tively in these proceedings and against respondents a to 9 who are now in management as already stated. The company is irapleaded proforma as the 10th respondent. Before discussing the issues involved, it is necessary to examine the relevant provisions of the impugned Act in order to see in what manner and to what extent the petition- er’s rights have been affected thereby. The preamble to the repealed Ordinance stated that “on account of mis- management and neglect a situation has arisen in the affairs of the Sholapur Spinning and Weaving Company, Limited, which has prejudicially affected the production of an essen- tial commodity and has caused serious unemployment amongst a certain section of the community and that an emergency has arisen which renders it necessary to make special provi- sion for the proper management and administration of the aforesaid Company.” This preamble was not reproduced in the impugned Act. Section a empowers the Central Government to appoint as many persons as it thinks fit to be directors of the company “for the purpose of taking over its management and administration.” Section 4 states the effect of the order appointing directors to be that (1) the old directors shall be deemed to have vacated their office, (2) the contract with the managing agents shall be deemed to have been termi- nated, (3) that the properties and effects of the company shall be deemed to be in the custody of the new directors who are to be “for all purposes” the directors of the compa- ny and “shall alone be entitled to exercise all the powers of the directors of the company whether such powers are derived from the Companies Act or from the memorandum or articles of association or otherwise.” Section 5 defines the powers of the new directors. They are to manage the busi- ness of the company “subject to the control of the Central Government” and shall have the power to raise funds offering such security as they think fit, to carry out necessary repairs to the machinery or other property in their custody and to employ the necessary persons and define the necessary conditions of their service. Section 12 provides for the restoration of the management to directors nominated by the shareholders when the purpose of the Government’s interven- tion has been fulfilled. Section 13 is important and reads thus: “13. Application of the Companies Act.–(1) Notwith- standing anything contained in the Companies Act or in the memorandum or articles of association of the company (a) it shall not be lawful for the shareholders of the company or any other person to nominate or appoint any person to be a director of the company; (b) no resolution passed at any meeting of the shareholders of the company shall ‘be given effect to unless approved by the Central Government; (c) no proceeding for the winding up of the company or for the appointment of a receiver in respect, thereof shall lie in any Court unless by or with the sanction of the Central Government. (2) Subject.
to the provisions contained in sub-section (1) and to the other provisions of this Act. and subject to such excep- tions, restrictions and limitations as the Central Govern- ment may, by notified order, specify, the Companies Act shall continue to apply to the company in the same manner as it applied thereto before the issue of the notified order under section 3.” By section 14 the provisions of the Act are to have effect “notwithstanding anything inconsistent therewith contained in any other law or in any instrument having effect by virtue of any law other than this Act.” Section 16 provides for delegation of powers to the Govern- ment of Bombay to be exercised subject to the directions of the Central Government, and section 17 bars suits or other proceedings against the Central Government or the Government of Bombay or any director “for any damage caused or likely to be caused by anything which is in good faith done or intended to be done in pursuance of this Act.”

As a result of these provisions all the properties and effects of the company passed into the absolute power and control of the Central Government or its delegate the Gov- ernment of Bombay, and the normal functioning of the company as a corporate body came to an end. The shareholders have been reduced to the position of interested, if helpless, onlookers while the business is carried on against their will and, may be, to their disadvantage by the Government’s nominees. The declared purpose of this arrangement was, according to the Preamble of the repeated Ordinance to keep up the production of an essential commodity and to avert serious unemployment amongst a certain section of the community.

The question accordingly arises whether the impugned Act. which thus affects the petitioner and his co-sharehold- ers, while leaving untouched the shareholders of all other companies, including those engaged in the production of essential commodities, denies to the petitioner the equal protection of the laws under article 14 of the Constitution. The correct approach to this question is first to see what rights have been con- ferred or protection extended to persons similarly situated. The relevant protection is to be found in the provisions of the Indian Companies Act which regulates the rights and obligations of the shareholders of incorporated companies in India. Section 21 of the Act assures to the shareholders the protection of the stipulations contained in the memoran- dum and articles of association by constituting. them a binding contract, so that neither the company nor the share- holders have the power of doing anything inconsistent there- with. The basic right of the shareholders to have their undertaking managed and conducted by the directors of their own choice is ensured by section 83B. Their right to exer- cise control and supervision over the management by the directors by passing resolutions at their general meeting is regulated by various provisions of the Act. The important safeguard of winding up the company in certain unfavourable circumstances either through court or by the shareholders thems elves voluntarily is provided for in sections 162 and 203. All these rights and safeguards, on the faith of which the shareholders embark their money in their undertaking, are abrogated by the impugned Act in the case of the share- holders of this company alone. In fact, the Central Govern- ment is empowered to exclude, restrict or limit the opera- tion of any of the provisions of the Companies Act in rela- tion to this company. It is thus plain that the impugned Act denies to the shareholders of this particular company the protection of the law relating to incorporated joint stock companies in this country is embodied in the Companies Act and is primafacie within the inhibition of article 14. It is argued, however, that article 14 does not make it incumbent on the Legislature always to make laws applicable to all persons generally, and that it is open to the Legis- lature ‘to classify persons and things and subject them to the operation of a particular law according to the aims and objects which that law is designed to secure. In the present case, Parliament, it was said, came to the conclusion, on the materials placed before them, that the affairs of the company were being grossly mismanaged so as to result in the cessation of production of an essential commodity and serious unemploy- ment amongst a section of the community. In view if the detriment thus caused to public economy, it was competent for Parliament to enact a measure applicable to this company and its shareholders alone, and Parliament must be the judge as to whether the evil which the impugned Act was designed to remedy prevailed to such an extent in this company as to call for special legislation. Reliance was placed in support of this argument on certain American decisions dealing with the equal protection clause of the Fourteenth Amendment of the Federal Constitution. It is, however, unnecessary to discuss those decisions here, for it is undeniable that equal protection of the laws cannot mean that all laws must be quite general in their character and application.’ A legislature empowered to make laws on a wide range of sub- jects must of necessity have the power of making special laws to attain particular objects and must, for that pur- pose, possess large powers of distinguishing and classifying the persons or things to be brought under the operation of such laws, provided the basis of such classification has a just and reasonable relation to the object which the legis- lature has in view. While, for instance, a classification in a law regulating labour in mines or factories may be based on age or sex, it may not b`e based on the colour of one’s skin. It is also true that the class of persons to whom a law is made applicable may be large or small, and the degree of harm which has prompted the enactment of a particular law is a matter within the discretion of the law-makers. It is not the province of the court to canvass the legislative judgment in such matters. But the issue here is not whether the impugned Act was ill-advised or not justified by the facts on which it was based, but whether it transgresses the explicit constitutional restriction on legislative power imposed by article 14.

It is obvious that the legislation is directed solely against a particular company and shareholders and not against any class or category of companies and no question, therefore, of reasonable legislative classification arises. If a law is made applicable to a class of persons or things and the classification is based upon differentia having a rational relation to the object sought to be attained, it can be no objection to its constitutional validity that its application is found to affect only one person or thing. For instance, a law may be passed imposing certain restric- tions and burdens on joint stock companies with a share capital of, say, Rs. 10 crores and upwards, and it may be found that there is only one such company for the time being to which the law could be applied. If other such companies are brought into existence in future the law would apply to them also, and no discrimination would thus be involved. But the impugned Act, which selects this particular company and imposes upon it and its shareholders burdens and disa- bilities on the ground of mismanagement and neglect of duty on the part of those charged with the conduct of its under- taking, is plainly discriminatory in character and is, in my judgment, within the constitutional inhibition of article 14. Legislation based upon mismanagement or other miscon- duct as the differentia and made applicable to a specified individual or corporate body is not far removed from the notorious parliamentary procedure formerly employed in Britain of punishing individual delinquents by passing bills of attainder, and should not, I think, receive judi- cial encouragement.

It was next urged that the burden of proving that the impugned Act is unconstitutional lay on the petitioner, and that, inasmuch as he has failed to adduce any evidence to show that the selection of this company and its shareholders for special treatment under the impugned Act was arbitrary, the application must fail. Whilst all reasonable pre- sumption must undoubtedly be made in support of the consti- tutional validity of a law made by a competent legislature, the circumstances of the present case would seem, to my mind to exclude such presumption. Hostile discrimination is writ large over the face of the impugned Act and it dis- closes no grounds for such legislative intcrvcntion. For all that appears no compelling public intercsts were involved. Even the preamble to the original Ordinance was omitted. Nor did respondents 1 and 2 file any counter-statement in this proceeding explaining the circumstances which led to the enactment of such an extraordinary measure. There is thus nothing in the record even by way of allegation which the petitioner need take steps to rebut. Supposing, howev- er, that the impugned Act was passed on the same grounds as were mentioned in the preamble to the repealed Ordinance, namely, mismanagement and neglect prejudicially affecting the production of an essential commodity and -causing seri- ous unemployment amongst a section of the community, the petitioner could hardly be expected to assume the burden of showing, not that the company’s affairs were properly man- aged, for that is not his case, but that there were also other companies similarly mismanaged, for that is what, according to the respondents, he should prove in order to rebut the presumption of constitutionality. In other words, he should be called upon to establish that this company and its shareholders were arbitrarily singled out for the impo- sition of the statutory disabilities. How could the peti- tioner discharge such a burden ? Was he to ask for an inves- tigation by the Court of the affairs of other industrial concerns in India where also there were strikes and lock outs resulting in unemployment and cessation of production of essential commodities? Would these companies be willing to submit to such an investigation ? And even so, how is it possible to prove that the mismanagement and neglect which is said to have prompted the legislation in regard to this company was prevalent in the same degree in other companies ? In such circumstances, to cast upon the petitioner a burden of proof which it is as needless for him to assume as it is impracticable to discharge is to lose sight of the realities of the case.

Lastly, it was argued that the constitutionality of a statute could not be impugned under article 32 except by a person whose rights were infringed by the enactment. and that, inasmuch as there was no infringement of the individ- ual right of a shareholder, even assuming that there was an injury to the company as a corporate body, the petitioner was not entitled to apply for relief under that article. Whatever validity the argument may have in relation to the petitioner’s claim based on the alleged invasion of his right of property under article 31, there can be little doubt that, so far as his claim based on the contravention of article 14 is concerned, the petitioner is entitled to relief in his own right As has been pointed out already, the impugned Act deprives the shareholders of the company of important rights and safeguards which are enjoyed by the shareholders of other joint stock companies in Indian under the Indian Companies Act. The petitioner is thus denied the equal protection of the laws in his capacity as a sharehold- er, and none the less so because the other shareholders of the company are also similarly affected. The petitioner is thereled to seek relief under article 32 of the Constitution.
In this view it becomes unnecessary to consider the questions raised under articles 19 and 31 of the Constitution.

In the result]t, I would allow the application.

MUKHERJEA J.–This is an application presented by one Chiranjitlal Chowdhuri, a shareholder of the Sholapur Spinning and Weaving Company Limited (hereinafter referred to as the company), praying for a writ of mandamus and certain other reliefs under article 32 of the Constitution. The company, which has its registered office within the State of Bombay and is governed by the provisions of the Indian Companies Act, was incorporated with an authorised capital of Rs. 48 lakhs divided into 1590, fully paid up ordinary shares of Rs. 100 each, 20 fully paid up ordinary shares of Rs. 500 each and 32,000 partly paid up cumulative preference shares of Rs. 100 each. The present paid up capital of the company is Rs. 32 lakhs half of which is represented by the fully paid up ordinary shares and the other half by the partly paid up cumulative prefer- ence shares. The petitioner states in his petition that he holds in his own right three ordinary shares and eighty prefercnce shares in the company, though according to his own admission the ,preference shares do not stand in his name but have been registered in the name of the Baroda Bank Limited with which the shares are pledged. According to the respondents, the petitioner is the registered holder of one single ordinary share in the company.

It appears that on July 27, 1949, the directors of the company gave a notice to the workers that the mills would be closed, and pursuant to that notice, the mills were in fact closed on the 27th of August following. On January 9, 1950, the Governor-General of India promulgated an Ordinance which purported to make special provisions for the proper man- agement and administration of the company. It was stated in the preamble to the Ordinance that “on account of mis- management and neglect, a situation has arisen in the af- fairs of the Sholapur Spinning and Weaving Company Limited which has prejudicially affected the production of an essen- tial commodity and has caused serious unemployment amongst a certain section of the community “, and it was on account of the emergency arising from this situation that the promulga- tion of the Ordinance was necessary. The provisions of the Ordinance, so far as they are material for our present purpose, may be summarised as follows:

Under section 3 of the Ordinance, the Central Government may, at any time, by notified order, appoint as many persons as it thinks fit, to be directors of the company for the purpose of taking over its management and administration and may appoint one of such directors to be the Chairman. Section 4 provides that on the issue of a notified order under section 3 all the directors of the company holding office as such immediately before the issue of the order shall be deemed to have vacated their offices. and any existing contract of management between the company and any managing agent thereof shall be deemed to have terminated. The directors thus appointed shall be for all purposes the directors of the company duly constituted under the Compa- nies Act and shall alone be entitled to exercise all the powers of the directors of the company. The powers and the duties of the directors are specified in section 5 and this section inter alia empowers the directors to vary or cancel, with the previous sanction of the Central Government, any contract or agreement entered into between the company and any other person if they are satisfied that such contract or agreement is detrimental to the interests of the company. Section 10 lays down that no compensation for premature termination of any contract could be claimed by the managing agent or any other contracting party. It is provided by section 12 that so long as the management by the statutory directors continues, the shareholders would be precluded from nominating or appointing any person to be a director of the company and any resolution passed by them will not be effective unless it is approved by the Central Government. This section lays down further that during this period no proceeding for winding up of the company, or for appointment of a receiver in respect thereof could be instituted in any court, unless it is sanctioned by the Central Government, and the Central Government would be competent to impose any restrictions or limitations as regards application of the provisions of the Indian Companies Act to, be affairs of the company. The only other material provision is that contained in section 15, under which the Central Government may, by notified order, direct that all or any of the powers exercisable by it under this Ordinance may be exercised by the Government of Bombay.

In accordance with the provisions of section 15 men- tioned above, the Central Government, by notification issued on the same day that the Ordinance was promulgated, delegat- ed all its powers exercisable under the Ordinance to the Government of Bombay, On the next day, the Government of Bombay appointed respond- ents 3 to 7 as directors of the company in terms of section 3 of the Ordinance. On the 2nd of March, 1950, the re- spondent No. 9 was appointed a director and respondent No. 5 having resigned his office in the meantime, the re- spondent No. 8 was appointed in his place. On the 7th of April, 1950, the Ordinance was repealed and an Act was passed by the Parliament of India, known as the Sholapur Spinning and Weaving Company (Emergency Provisions)Act which re-enacted almost in identical terms all the provisions of the Ordinance and provided further that all actions taken and orders made under the Ordinance shall be deemed to have been taken or made under the corresponding provisions of the Act. The preamble to the Ordinance was not however repro- duced in the Act.

The petitioner in his petition has challenged the con- stitutional validity of both the Ordinance and the Act. As the Ordinance is no longer in force and all its provisions have been incorporated in the Act, it will not be necessary to deal with or refer to the enactments separately. Both the Ordinance and the Act have been attacked on identical grounds and it is only necessary to enumerate briefly what these grounds are.

The main ground put forward by the petitioner is that the pith and substance of the enactments is to take possession of and control over the mills of the company which are its valuable assets and such taking of possession of property is entirely beyond the powers of the Legislature. ‘The provisions of the Act, it is said, amount to deprivation of property of the shareholders as well as of the company within the meaning of article 31 of the Constitution and the restrictions imposed on the rights of the shareholders in respect to the shares held by them constitute an unjustifia- ble interference with their rights to hold property and as such are void under article 19 (1) (f). It is urged that there was no public purpose for which the Legislature could authorise the taking possession or acquisition of property and such acquisition or taking of possession with- out payment of compensation is in violation of the funda- mental rights guaranteed by article 31 (2) of the Constitu- tion. It is said further that the enactment denies to the company and its shareholders equality before the law. and equal protection of laws and thus offends against the provi- sions of article 14 of the Constitution. The only other material point raised is that the legislation is beyond the legislative competency of the Parliament and is not covered by any of the items in the legislative lists. On these allegations, the petitioner prays, in the first instance. that it may be declared that both the Act and the Ordinance are ultra vires and void and an injunction may be issued restraining the respondents from exercising any of the powers conferred upon them by the enactments. The third and the material prayer is for issuing a writ of mandamus, “restraining the respondents 1 to 9 from exercising or purporting to exercise any powers under the said Ordinance or Act and from in any manner interfering with the manage- ment or affairs of the company under colour of or any pur- ported exercise of any powers under the Ordinance or the Act,” The other prayers are not material for our purpose. Before I address myself to the merits of this applica- tion it will be necessary to clear up two preliminary matters in respect to which arguments were advanced at some length from the Bar. The first point relates to the scope of our enquiry in the present case and raises the question as to what precisely are the matters that have to be inves- tigated and determined on this application of the petition- er. The second point relates to the form of relief that can be prayed for and granted in a case of this description. Article 32 (1) of the Constitution guarantees to every- body the right to move this court, by appropriate proceed- ing, for enforcement of the fundamental rights which are enumerated in Part 1II of the Constitution. Clause (2) of the article lays down that the Supreme Court shall have the power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever may be appropriate for the enforcement of any of the rights conferred by this part.

Thus anybody who complains of infraction of any of the fundamental rights guaranteed by the Constitution is at liberty to move the Supreme Court for the enforcement of such rights and this court has been given the power to make orders and issuue directions or writs similar in nature to the prerogative writs of English law as might be considered appropriate in particular cases. The fundamental rights guaranteed by the Constitution are available not merely to individual citizens but to corporate bodies as well except where the language of the provision or the nature of the right compels the inference that they are applicable only to natural persons. An incorporated company, therefore, can come up to this court for enforcement of its fundamental rights and so may the individual shareholders to enforce their own; but it would not be open to an individual shareholder to complain of an Act which affects the fundamental rights of the company except to the extent that it constitutes an infraction of his own rights as well.

This follows logically from the rule of law that a corporation has a distinct legal personality of its own with rights and capacities, duties and obligations separate from those of its individual members. As the rights are different and inhere in different legal entities, it is not competent to one person to seek to enforce the rights of another except where the law permits him to do so. A well known illustra- tion of such exception is furnished by the procedure that is sanctioned in an application for a writ of habeas corpus. Not only the man who is imprisoned or detained in confinement but any person, provided he is not an absolute stranger, can institute proceedings to obtain a writ of habeas corpus for the purpose of liberating another from an illegal imprisonment.

The application before us under article 32 of the Constitution is on behalf of an individual shareholder of the company. Article 32, as its provisions show,. is not di- rectly concerned with the determination of constitutional validity of particular legislative enactments. What it aims at is the enforcing of fundamental rights guaranteed by the Constitution, no matter whether the necessity for such enforcement arises out of an action of the executive or of the legislature. To make out a case under this article, it is incumbent upon the petitioner to establish not merely that the law complained of is beyond the competence of the particular legislature as not being covered by any of the items in the legislative lists, but that it affects or invades his fundamental rights guaranteed by the Constitu- tion, of which he could seek enforcement by an appropriate writ or order. The rights that could be enforced under article 32 must ordinarily be the rights of the petitioner himself who complains I of infraction of such rights and approaches the court for relief. This being the position, the proper subject of our investigation would be what rights, if any, of the petitioner as a shareholder of the company have been violated by the impugned legislation. A discussion of the fundamental rights of the company as such would be outside the purview of our enquiry. It is settled law that in order to redress a wrong done to the company, the action should prima facie be brought by the company itself. It cannot be said that this course is not possible in the circumstances of the present case. As the law is alleged to be unconstitutional, it is open to the old directors of the company who have been ousted from their position by reason of the enactment to maintain that they are directors still in the eye of law, and on that footing the majority of shareholders can also assert ‘the rights of the company as such. None of them, however, have come forward to institute any proceeding on behalf of the compa- ny. Neither in form nor in substance does the present application purport to be one made by the company itself. Indeed, the company is one of the respondents, and opposes the petition. As regards the other point, it would appear from the language of article 32 of the Constitution that. the sole object of the article is the enforcement of fundamental rights guaranteed by the Constitution. A proceeding under this article cannot really have any affinity to what is known as a declaratory suit. The first prayer made in the petition, n seeks relief in the shape of a declaration that the Act is invalid and is apparently inappropriate to an application under article 32; while the second purports to be framed for a relief by way of injunc- tion consequent upon the first. As regards the third pray- er, it has been contended by Mr. Joshi, who appears for one of the respondents, that having regard to the nature of the case and the allegations made by the petitioner himself, the prayer for a writ of mandamus, in the form in which it has been made, is not tenable. What is argued is that a writ of mandamus can be prayed for, for enforcement of statutory duties or to compel a person holding a public office to do or forbear from doing something which is incumbent upon him to do or forbear from doing under the provisions of any law. Assuming that the respondents in the present case are public servants, it is said that the statutory duties which it is incumbent upon them to discharge are precisely the duties which are laid down in the impugned Act itself. There is no legal obligation on their part to abstain from exercising the powers conferred upon them by the impeached enact- ment which the court can be called upon to enforce. These is really not much substance in this argument, for according to the petitioner the impugned Act is not valid at all and consequently the respondents cannot take their stand on this very Act to defeat the application for a writ in the nature of a mandamus. Any way, article 32 of the Constitution gives us very wide discretion in the matter of framing our writs to suit the exigencies of particular cases, and the application of the petitioner cannot be thrown out simply on the ground that ‘the proper writ or direction has not been prayed for.

Proceeding now to the merits of the case, the first contention that has been pressed before us by the learned Counsel for the petitioner is that the effect of the Shola- pur Spinning and Weaving Company Limited (Emergency Provi- sions) Act, has been to take away from the company and its shareholders, possession of -property and other interests in commercial undertaking and vest the same in certain persons who are appointed by the State, and the exercise of whose powers cannot be directed or controlled in any way by the shareholders. As the taking of possession is not for any public purpose and no provision for compensation has been made by the law which authorises it, such law, it is said, violates the fundamental rights guaranteed under article 31 of the Constitution.
To appreciate the contention, it would be convenient first of all to advert to the provisions of the first two clauses of article 31 of the Constitution. The first clause of article 31 lays down that “no person shall be deprived of his property save by authority of law” The second clause provides: “No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken posse- sion of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given.”

It is a right inherent in every sovereign to take and appropriate private property belonging to individual citizens for-public use. ‘this right, which is described as eminent domain in American law, is like the power of taxation, an offspring of political necessity, and it is supposed to be based upon an implied reservation by Govern- ment that private property acquired by its citizens under its protection may be taken or its use con- trolled for public benefit irrespective of the wishes of the owner. Article 31 (2) of the Constitution prescribes a two- fold limit within which such superior right of the State should be exercised. One limitation imposed upon acquisition or taking possession of private property which is implied in the clause is that such taking must be for public purpose. The other condition is that no property can be taken, unless the law which authorises such appropriation contains a provision for payment of compensation in the manner laid down in the clause. So far as article S1 (2) is concerned, the substantial question for our consideration is whether the impugned legislation authorises any act amounting to acquisition or taking possession of private property within the meaning of the clause.
It cannot be disputed that acquisition means and implies the acquiring of the entire title of the expropriated owner, whatever the nature or extent of that title might be. The entire bundle of rights which were vested in the original holder would pass on acquisition to the acquirer leaving nothing in the former. In taking possession on the other hand, the title to the property admittedly remains in the original holder, though he is excluded from possession or enjoyment of the property. Article 31 (,?) of the Constitu- tion itself makes a clear distinction between acquisition of property and taking possession of it for a public purpose, though it places both of them on the same footing in the sense that a legislation authorising either of these acts must make provision for payment of compensation to the displaced or expropriated holder of the property. In the context in which the word “acquisition” appears in article 31 (2), it can only mean and refer to acquisition of the entire interest of the previous holder by transfer of title and I have no hesitation in holding that there is no such acquisition either as regards the property of the company or of the shareholders in the present case. The question, therefore, narrows down to this as to whether the legisla- tion in question has authorised the taking of possession of any property or interest belonging to the petitioner. It is argued by the learned Attorney-General that the taking of possession as contemplated by article 31 (2) means the taking of possession of the entire bundle of rights which the previous holder had, by excluding him from every part or item thereof. If the original holder is still left to exercise his possession with regard to some of the rights which were within the folds of his title, it would not amount to taking possession of the property for purposes of article 31 (2) of the Constitution. Having laid down this proposition of law, the learned Attorney-General has taken us through the various provisions of the impugned Act and the contention advanced by him substantially is that nei- ther the company nor the shareholders have been dispossessed from their property by reason of the enactment. As regards the properties of the company, the directors, who have been given the custody of the property, effects and actionable claims of the company, are, it is said, to exercise their powers not in their own right but as agents of the company, whose beneficial interest in all its assets has not been touched or taken away at all. No doubt the affairs of the company are to be managed by a body of directors appointed by the State and not by the company, but this, it is argued, would not amount to taking possession of any property or interest within the meaning of article 31 (2). Mr. Chari on the other hand, has contended on behalf of the petitioner that after the management is taken over by the statutory directors, it cannot be said that the company still retains possession or control over its property and assets. Assuming that this State management was imposed in the interests of the shareholders themselves and that the statutory directors are acting as the agents of the company, the possession of the statutory directors could not, it is argued, be regarded in law as possession of the company so long as they are bound to act in obedience to the dictates of the Central Government and not of the company itself in the administra- tion of its affairs. Possession of an agent, it is said, cannot juridically be the possession of the principal, if the agent is to act not according to the commands or dictates of the principal, but under the direc- tion of an exterior authority.

There can be no doubt that there is force in this con- tention, but as I have indicated at the outset, we are not concerned in this case with the larger question as to how far the inter-position of this statutory management and control amounts to taking possession of the property and assets belonging to the company. The point for our consider- ation is a short one and that is whether by virtue of the impugned legislation any property or interest of the peti- tioner himself, as a shareholder of the company, has been taken possession of by the State or an authority appointed under it, as contemplated by article 31 (2) of the Constitution.
The petitioner as a shareholder has undoubtedly an interest in the company. His interest is represented by the share he holds and the share is movable property according to the Indian Companies Act with all the incidence of such property attached to it. Ordinarily, he is entitled to enjoy the income arising from the shares in the shape of divi- dends; the share like any ‘other marketable commodity can be sold or transferred by way of mortgage or pledge. The hold- ing of the share in his name gives him the right to vote at the election of directors and thereby take a part, though indirectly, in the management of the company’s affairs. If the majority of shareholders sides with him, he can have a resolution passed which would be binding on the company, and lastly, he can institute proceedings for winding up of the company which may result in a distribution of the net assets among the shareholders.

It cannot be disputed that the petitioner has not been dispossessed in any sense of the term of the shares he holds. Nobody has taken the shares away from him. His legal and beneficial interest in respect to the shares he holds is left intact. If the company declares dividend, he would be entitled to the same. He can sell or otherwise dispose of the shares at any time at his option. The impugned Act has affected him in this way that his right of voting at the election of direc- tors has been kept in abeyance so long as the management by the statutory director continues; and as a result of that, his right to participate in the management of the company has been abridged to that extent. His rights to pass resolutions or to institute winding up proceedings have also been restricted though they are not wholly gone; these rights can be exercised only with the consent or sanction of the Central Government. In my opinion, from the facts stated above, it cannot be held that the petitioner has been dispossessed from the property owned by him. I may apply the test which Mr. Chari himself formulated. If somebody had taken possession of the petitioner’s shares and was clothed with the authority to exercise all the powers which could be exercised by the holder of the shares under law, then even if he purported to act as the petitioner’s agent and exer- cise these powers for his benefit, the possession of such person would not have been the petitioner’s possession if he was bound to act not under the directions of the petitioner or in obedience to his commands but under the directions of some other person or authority. There is no doubt whatsoever that is not the position in the present case. The State has not usurped the shareholders’ right to vote or vested it in any other authority. The State appoints directors of its own choice but that it does, not in exercise of the share- holders’ right to vote but in exercise of the powers vested in it by the impugned Act. Thus there has been no dispos- session of the shareholders from their right of voting at all. The same reasoning applies to the other rights of the shareholders spoken of above, namely, their right of passing resolutions and of presenting winding up petition. These rights have been restricted undoubtedly and may not be capable of being exercised to the fullest extent as long as the management by the State continues. Whether the restric- tions are such as would bring the case within the mischief of article 19 (1) (f) of the Constitution, 1 will examine presently; but 1 have no hesitation in holding that they do not amount to dispossession of the shareholders from these rights in the sense that the rights have been usurped by other people who are exercising them in place of the displaced shareholders.

In the view that I have taken it is not necessary to discuss whether we can accept as sound the contention put forward by the learned Attorney-General that the word “property” as used in article 31 of the Constitution con- notes the entire property, that is to say the totality of the rights which the ownership of the object connotes. According to Mr. Setalvad, if a shareholder is not deprived of the entirety of his rights which he is entitled to exer- cise by reason of his being the owner or holder of the share and some rights, however insignificant they might be, still remain in him, there cannot be any dispossession as contem- plated by article 31(2). It is difficult, in my opinion, to accept the contention formulated in such broad terms. The test would certainly be as to whether the owner has been dispossessed substantially from the rights held by him or the loss is only with regard to some minor ingredients of the proprietory right. It is relevant to refer in this connection to an observation made by Rich J. in a Full Bench decision of the High Court of Australia,(1) where the ques- tion arose as to whether the taking of exclusive possession of a property for an indefinite period of time by the Com- monwealth of Australia under Reg. 54 of the National Securi- ty Regulation amounted to acquisition of property within the meaning of placitum 31, section 51, of the Commonwealth Constitution. The majority of the Full Bench answered the question in the affirmative and the main reason upon which the majority decision was based is thus expressed in the language of Rich J.–
“Property, in relation to land, is a bundle of rights exercisable with respect to the land. The tenant of an unencumbered estate in fee simple in possession has the largest possible bundle. But there is nothing in (1) See Minister of Stain for the Army v. Dalziel, 68 C L.R. p. 261, the placitum to suggest that the legislature was intended to be at liberty to free itself from the restrictive provisions of the placitum by taking care to seize something short of the whole bundle owned by the person whom it was expropriat- ing.”
It is not, however, necessary for my purpose to pursue the matter any further, as in my opinion there has been no dispossession of the rights of a shareholder in the present case.

Mr. Chari in course of his opening relied exclusively on clause (2) of article 31 of the Constitution. During his reply, however, he laid some stress on clause (1) of the article as well, and his contention seems to be that there was deprivation of property in the present case in contra- vention of the terms of this clause. It is difficult to see what exactly is the contention of the learned Counsel and in which way it assists him for purposes of the present case. It has been argued by the learned Attorney-General that clause (1) of article 31 relates to a power different from that dealt with under clause (2). According to him, what clause (1) contemplates is confiscation or destruction of property in exercise of what are known as ‘police powers’ in American law, for which no payment of compensation is neces- sary. I do not think it proper for purposes of the present case to enter into a discussion on this somewhat debatable point which has been raised by the learned Attorney-General. In interpreting the provisions of our Constitution, we should go by the plain words used by the Constitution-makers and the importing of expressions like ‘police power ; which is a term of variable and indefinite connotation in American law can only make the task of interpretation more difficult. It is also not necessary to express any opinion as to wheth- er clauses (1) and (2) of article 31 relate to exercise of different kinds of powers or they are to be taken as cumula- tive provisions in relation to the same subjectmatter, namely, compulsory acquisition of property. If the word “deprived” as used in clause (1) connotes the idea of de- struction or confiscation of property, obviously no such thing has happened in the present case. Again if clauses (1) and (2) of article 31 have to be read together and “deprivation” in clause (1) is given the same meaning as compulsory acquisition in clause (2), clause (1), which speaks neither of compensation nor of public purpose, would not by itself, and apart from clause (2), assist the petitioner in any way. If the two clauses are read disjunctively, the only question that may arise in connection with clause (1) is whether or not the depriva- tion of property is authorised by law. Mr. Chari has raised a question relating to the validity of the legislation on the ground of its not being covered by any of the items in the legislative list and to this question I would advert later on; but apart from this, clause (1) of article 31 of the Constitution seems to me to be altogether irrelevant for purposes of the petitioner’s case.

This leads me to the consideration of the next point raised by Mr. Chari, namely, whether these restrictions offend against the provision of article 19(1)(f) of the Constitution.

Article 19(1) of the Constitution enumerates the dif- ferent forms of individual liberty, the protection of which is guaranteed by the Constitution. The remaining clauses of the article prescribe the limits that may be placed upon these liberties by law, so that they may not conflict with public welfare or general morality. Article 19(1)(f) guarantees to all citizens ‘ the right to acquire, hold or dispose of property.’ Any infringement of this provision would amount to a violation of the fundamental rights, unless it comes within the exceptions provided for in clause (5) of the article. That clause permits the imposition of reasonable restrictions upon the exercise of such righ teither in the interests of the general public or for the protection of the interests of any Scheduled Tribe. Two questions, therefore, arise in this connection: first, whether the restrictions that have been imposed upon the rights of the petitioner as a shareholder in the company under the Sholapur Act amount to infringement of his.right to acquire, hold or dispose of property within the meaning of article 19(1)(f) of the Constitution and secondly, if they do interefere with such rights, whether they are covered by the exceptions 1aid down in clause (5) of the article.

So far as the first point is concerned, it is quite clear that there is no restriction whatsoever upon the petitioner’s right to acquire and dispose of any property. The shares which he holds do remain his property and his right to dispose of them is not lettered in any way. If to ‘hold’ a property means to possess it, there is no infringe- ment of this right either, for, as I have stated already, the acts complained of by the petitioner do not amount to dispossession of him from any property in the eye of law. It is argued that ‘holding’ includes enjoyment of all benefits that are ordinarily attached to the ownership of a property. The enjoyment of the fruits of a property is undoubtedly an incident of ownership. The pecuniary benefit, which a share. holder derives from the shares he holds, is the dividend and there is no limitation on the petitioner’s right in this respect. The petitioner undoubtedly has been precluded from exercising his right of voting at the elec- tion of directors so long as the statutory directors contin- ue to manage the affairs of the company. He cannot pass an effective resolution in concurrence with the majority of shareholders without the consent or sanction of the Central Government and without such sanction, there is also a disa- bility on him to institute any winding up proceedings in a court of law.
In my opinion, these are rights or privileges which are appurtenant to or flow from the ownership of property, but by themselves and taken independently, they cannot be reck- oned as property capable of being acquired, held or disposed of as is contemplated by article 19 (1) (f) of the Constitu- tion. I do not think that there has been any restriction on the rights of a shareholder to hold, acquire or dispose of his share by reason of the impugned enactment and conse- quently article 19 (1) (f) of the Constitution is of no assistance to the petitioner. In this view, the other point does not arise for consideration, but I may state here that even if it is conceded for argument’s sake that the disabilities imposed by the impugned legislation amount to restrictions on proprietory right, they may very well be supported as reasonable restraints imposed in the interests of the general public, viz., to secure the supply of a commodity essential to the community and to prevent a seri- ous unemployment amongst a section of the people. They are, therefore, protected completely by clause (5)of article 19. This disposes of the second point raised by Mr. Chari. The next point urged on behalf of the petitioner raises an important question of constitutional law which turns upon the construction of article 14 of the Constitution. It is urged by the learned Counsel for the petitioner that the Sholapur Act is a piece of discriminatory legislation which offends against the provision of article 14 of the Constitu- tion. Article 14 guarantees to all persons in the territo- ry of India equality before the law and equal protection of the laws and its entire object, it is said, is to prevent any person or class of persons from being singled out as a special subject of discriminatory legislation. It is pointed out that the law in this case has selected one particular company and its shareholders and has taken away from them the right to manage their own affairs, but the same treatment has not been meted out to all other companies or shareholders situated in an identical manner.

Article 14 of the Constitution, it may be noted, corre- sponds to the equal protection clause in the Fourteenth Amendment of the American Constitution which declares that “no State shall deny to any person within its jurisdiction the equal protection of the laws.” We have been referred in course of the arguments on this point by the learned Counsel on both sides to quite a number of cases decided by the American Supreme Court, where questions turning upon the construction of the ‘equal protection’ clause in the Ameri- can Constitution came up for consideration. A detailed examination of these reports is neither necessary nor prof- itable for our present purpose but we think we can cull a few general principles from some of the pronouncements of the American Judges which might appear to us to be consonant with reason and help us in determining the true meaning and scope of article 14 of our Constitution.

I may state here that so far as the violation of the equality clause in the Constitution is concerned, the peti- tioner, as a shareholder of the company, has as much right to complain as the company itself, for his complaint is that apart from the discrimination made against the company, the impugned legislation has discriminated against him and the other shareholders of the company as a group vis-a-vis the shareholders of all other companies governed by the Indian Companies Act who have not been treated in a similar way. As the discriminatory treat- ment has been in respect to the shareholders of this company alone, any one of the shareholders, whose interests are thus vitally affected, has a right to complain and it is immate- rial that there has been nodiscrimination inter se amongst the shareholders themselves.

It must be admitted that the guarantee against the denial of equal protection of the laws does not mean that identically the same rules of law should be made applicable to all persons within the territory of India in spite of differences of circumstances and conditions. As has been said by the Supreme Court of America, “equal protection of laws is a pledge of the protection of equal laws(‘),” and this means “subjection to equal laws applying alike to all in the same situation(“).” In other words, there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is the same. I am unable to accept the argument of Mr. Chari that a legislation relating to one individual or one family or one body corporate would per se violate the guarantee of the equal protection rule. There can certainly be a law applying to one person or to one group of persons and it cannot be held to be (1) Yick Wo v. Hopkins, 118 U.S. at 369 (2) Southern Raliway Company v. Greene, 216 U.S 400,412.unconstitutional if it is not discriminatory in its charac- ter (1). It would be bad law “if it arbitrarily selects one individual or a class of individuals, one corporation or a class of corporations and visits a penalty upon them, which is not imposed upon others guilty of like delinquency(2).” The legislature undoubtedly has a wide field of choice in determining and classifying the subject of its laws, and if the law deals alike with all of a cer- tain class, it is normally not obnoxious to the charge of denial of equal protection; but the classification should never be arbitrary. It must always rest upon some real and substantial distinction bearing a reasonable and just rela- tion to the things in respect to which the classification is made; and classification made without any’ substantial basis should be regarded as invalid(3).

The question is whether judged by this test the impugned Act can be said to have contravened the provision embodiedin article 14 of the Constitution. Obviously the Act purports to make provisions which are of a drastic character and against the general law of the land as laid down in the Indian Companies Act, in regard to the admin- istration and management of the affairs of one company in indian territory. The Act itself gives no reason for the legislation but the Ordinance, which was a precursor of the Act expressly stated why the legislation was necessary. It said that owing to mismanagement and neglect, a situation had arisen in the affairs of the company which prejudicially affected the production of an essential commodity and caused serious unemployment amongst a certain section of the community. Mr. Chari’s contention in substance is that there are various textile companies in India situated in a simi- lar manner as the Sholapur company, against which the same charges could be brought and for the control and regulation of which all the reasons that are mentioned in the preamble to the Ordinance (1) Willis Constitutional Law, p. 580.
(2) Gulf C. & S. F.R. Co. v. Ellis. 163 U.S, 150, at 159. (3) Southern Railway Co. v. Greene, 216 US. 400, at 412 could be applied. Yet, it is said, the legislation has been passed with regard to this one company alone. The argument seems plausible at first sight, but on a closer examination I do not think that I can accept it as sound. It must be conceded that the Legislature has a wide discretion in determining the subject matter of its laws. It is an accepted doctrine of the American Courts and which seems to me to be well founded on principle, that the presumption is favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a transgression of constitutional principles. As was said by the Supreme Court of America in Middleton v. Texas Power and Light Company(1), ‘It must be presumed that a Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds.” This being the position, it is for the petitioner to establish facts which would prove that the selection of this particular subject by the Legislature is unreasona- ble and based upon arbitrary grounds. No allegations were made in the petition and no materials were placed before us to show as to whether there are other companies in India which come precisely under the same category as the Sholapur Spinning and Weaving Company and the reasons for imposing control upon the latter as mentioned in the preamble to the Ordinance are applicable to them as well. Mr. Chari argues that these are matters of common knowledge of which we should take judicial notice. I do not think that this is the correct line of approach. It is quite true that the Legislature has, in this instance, proceeded against one company only and its shareholders; but even one corporation or a group of persons can be taken as a class by itself for the purpose of legislation, provided it exhibits some excep- tional features which are not possessed by others. The courts should prima facie (1) 219 u.s. 152 at p. 157. lean in favour of constitutionality and should support the legislation if it is possible to do so on any reasonable ground, and it is for the party who attacks the validity of the legislation to place all materials before the court which would go to show that the selection is arbitrary and unsupportable. Throwing out of vague hints that there may be other instances of similar nature is not enough for this purpose. We have not even before us any statement on oath by the petitioner that what has been alleged against this particular company may be said against other companies as well. If there was any such statement, the respondents could have placed before us the whole string of events that led up to the passing of this legislation. If we are to take judi- cial notice of the existence of similar other badly managed companies, we must take notice also of the facts which appear in the parliamentary proceedings in connection with this legislation which leave been referred to by my learned brother, Fazl Ali J. in his judgment and which would go to establish that the facts connected with this corporation are indeed exceptional and the discrimination that has been made can be supported on just and reasonable grounds. I purpose- ly refrain from alluding to these facts or basing my deci- sion thereon as we had no opportunity of investigating them properly during the course of the hearing. As matters stand, no proper materials have been placed before us by either side and as I am unable to say that the legislature cannot be supported on any reasonable ground, I think it to be extremely risky to overthrow it on mere suspicion or vague conjectures. If it is possible to imagine or think of cases of other companies where similar or identical condi- tions might prevail, it is also not impossible to conceive of something” peculiar” or “unusual” to this corporation which led the legislature to intervene in its affairs. As has been laid down by the Supreme Court of America, “The Legislature is free to recognise degrees of harm and it may confine its restrictions to those cases where the need is deemed to be the clearest”(1). We should (1) Radics, v. New York, 264 U.S.bear in mind that a corporation, which is engaged in produc- tion of a commodity vitally essential to the community, has a social character of its own, and it must not be regarded as the concern primarily or only of those who invest their money in it. If its possibilities are large and it had a prosperous and useful career for a long period of time and is about to collapse not for any economic reason but through sheer perversity of the controlling authority, one cannot say that the legislature has no authority to treat it as a class by itself and make special legislation applicable to it alone in the interests of the community at large. The combination of circumstances which are present here may be of such unique character as could not be existing in any other institution. But all these, I must say, are matters which require investigation on proper materials which we have not got before us in the present case. In these circum- stances I am constrained to hold that the present applica- tion must fail on the simple ground that the petitioner made no attempt to discharge the primafacie burden that lay upon him and did not place before us the materials upon which a proper decision on the point could be arrived at. In my opinion , therefore, the attack on the legislation on the ground of the denial of equal protection of law cannot succeed.

The only other thing that requires to be considered is the argument of Mr. Chari that the law in question is in- valid as it is not covered by any of the items in the legis- lative list. In my opinion, this argument has no substance. What the law has attempted to do is to regulate the affairs of this company by laying down certain special rules for its management and administration. It is fully covered by item No. 43 of the Union List which speaks inter alia of “incor- poration, regulation and winding up of trading corporations.”
The result is that the application fails and is dis- missed with costs.

DAS J.As I have arrived at a conclusion different from that reached by the majority of this Court, I consider it proper, out of my respect for the opinion of my learned colleagues, to state the reasons for my conclusions in some detail.

On January 9, 1950, the Governor-General of India, acting under section 42 of the Government of India Act, 1935, promulgated an Ordinance, being Ordinance No. II of 1950, concenrning the Sholapur Spinning and Weaving Company, Limited, (hereafter referred to as the said company). The preambles and the provisions of the Ordinance have been referred to in the judgment just delivered by Mukherjea J. and need not be recapitulated by me in detail. Suffice it to say that the net result of the Ordinance was that the managing agents of the said company were dismissed, the directors holding office at the time automatically vacated their office, the Government was authorised to nominate directors, the rights of the shareholders of this company were curtailed in that it was made unlawful for them to nominate or appoint any director, no resolution passed by them could be given effect to without the sanction of the Government and no proceeding for winding up could be taken by them without such sanction, and power was given to the Government to further modify the provisions of the Indian Companies Act in its application to the said company. On the very day that the Ordinance was promulgated the Central Government acting under section 15 delegated all its powers to the Government of Bombay. On January 10, 1950, the Government of Bombay appointed Respondents Nos. 3 to 7 as the new directors. On March 2, 1950, Respondent No. 5 having resigned, Respondent No. 8 was appointed a director in his place and on the same day Respondent No. 9 was also appointed as a director. In the meantime the new Constitu- tion had come into force on January 26, 1950. On February 7, 1950, the new directors passed a resolution sanctioning a call for Rs. 50 on the preference shares. Thereupon a suit being Suit No. 438 of 1950 was filed in the High Court of Bombay by one Dwarkadas Shrinivas against the new directors challenging the validity of the Ordinance and the right of the new directors to make the call. Bhagwati J. who tried the suit held that the Ordinance was valid and dismissed the suit. An appeal (Appeal No. 48 of 1950) was taken from that decision which was dismissed by a Division Bench (Chagla C.J. and Gajendragadkar J.) on August 29, 1950. In the meantime, on April 7, 1950, the Ordinance was replaced by Act No. XXVIII of 1950. The Act substantially reproduced the provisions of the Ordinance except that the preambles to the Ordinance were omitted. On May 29, 1950, the present petition was filed by one Chiranjitlal Chowdhuri. The petitioner claims to be a shareholder of the said company holding 80 preference shares and 3 ordinary shares. The preference shares, according to him, stand in the name of the Bank of Baroda to whom they are said to have been pledged. As those preference shares are not registered in the name of the petitioner he cannot assert any right as holder of those shares. According to the respondents, the petitioner appears on the register as holder of only one fully paid up ordinary share. For the purposes of this application, then, the petitioner’s interest in the said company must be taken as limited to only one fully paid up ordinary share. The respondents are the Union of India, the State of Bombay and the new directors besides the company itself. The respondent No. 5 having resigned, he is no longer a director and has been wrongly impleaded as respond- ent. The reliefs prayed for are that the Ordinance and the Act are ultra vires and void, that the Central Government and the State Government and the directors be restrained from exercising any powers under the Ordinance or the Act, that a writ of mandamus be issued restraining the new direc- tors from exercising any powers under the Ordinance or the Act or from in any manner interfering with the management of the affairs of the company under colour of or in purported exercise of any powers under the said Ordinance or Act.

The validity of the Ordinance and the Act has been challenged before us on the following grounds:–(i) that it was not within the legislative competence–(a) of the Gover- nor-General to promulgate the Ordinance, or (b) of the Parliament to enact the Act, and (ii) that the Ordinance and the Act infringe the fundamental rights of the shareholders as well as those of the said company and are, therefore, void and inoperative under article 13.
Re (i)-.-The present application has been made by the petitioner under article 52 of the Constitution. Sub-section (1) of that article guarantees the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part [1] of the Constitution. Sub-section (2) empowers this Court to issue directions or orders or writs, including certain specified writs, whichever may be appro- priate, for the enforcement of any of the rights conferred by that Part. It is clear, therefore, that article 32 can only be invoked for the purpose of the enforcement of the fundamental rights. Article 32 does not permit an applica- tion merely for the purpose of agitating the competence of the appropriate legislature in passing any particular enact- ment unless the enactment also infringes any of the funda- mental rights. In this case the claim is that the fundamen- tal rights have been infringed and, therefore, the question of legislative competence may also be incidentally raised on this application. It does not appear to me, however, that there is any substance in this point for, in my opinion, entry 33 of List I of the Seventh Schedule to the Government of India Act, 1935, and the corresponding entry 43 of the Union List set out in the Seventh Schedule to the Constitu- tion clearly support these pieces of legislation as far as the question of legislative competency is concerned. Sec- tions 83A and 83-B of the Indian Companies Act can only be supported as valid on the ground that they regulate the management of companies and are, therefore, within the said entry. Likewise, the provisions of the Ordinance and the Act relating to the appointment of directors by the Government and the curtailment of the shareholders’ rights as regards the election of directors, passing of resolutions giving directions with respect to the management of the company and to present a winding up petition are matters touching the management of the company and, as such, within the legislative competence of the appropriate legislative authority. In my judgment, the Ordinance and the Act cannot be held to be invalid on the ground of legislative incompe- tency of the authority promulgating or passing the same. Re (ii)–The fundamental rights said to have been in- fringed are the right to acquire, hold and dispose of property guaranteed to every citizen by Article 19(1)(f) and the right to property secured by article 31, In Gapalan’s case (1) 1 pointed out that the rights conferred by article 19 (1) (a) to (e) and (g) would be available to the citizen until he was, under article 21, deprived of his life or personal liberty according to procedure established by law and that the right to property guaranteed by article 19 (1)(f) would likewise continue until the owner was, under article 31, deprived of such property by authority of law. Therefore, it will be necessary to consider first whether the shareholder or the company has been deprived of his or its property by authority of law under Article 31 for, if he or it has been so deprived, then the question of his or its fundamental right under article 19 (1) (f) will not arise. The relevant clauses of article 31 run as follows “31. (1) No person shall be deprived of his property save by authority of law.
(2) No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorisingthe taking of such possession or such acquisition, unless the law provides for compensation for the property taken posses- sion of or acquired (1) [1950] S.C.R. 88 and either fixes the amount of the compensation, or speci- fies the principles on which, and the manner in which, the compensation is to be determined and given.”
Article 31 protects every person, whether such’ person is a citizen or not. and it is wide enough to cover a natu- ral person as well as an artificial person. Whether or not, having regard to the language used in article 5, a corpora- tion can be called a citizen and as such entitled to the rights guaranteed under article 19, it is quite clear that the corporation is protected by article 31, for that article protects every “person” which expression certainly includes an artificial person.
The contention of the peitioner is that the Ordinance and the Act have infringed his fundamental right to property as a shareholder in the said company. Article 31, like article 19(1) (f), is concerned with “property “. Both the articles are in the same chapter and deal with fundamental rights. Therefore, it is reasonable to say that the word “property” must be given the same meaning in construing those two articles. What, then, is the meaning of the word “property”? It may mean either the bundle of rights which the owner has over or in respect of a thing, tangible or intangible, or it may mean the thing itself over or in respect of which the owner may exercise these rights. It is quite clear that the Ordinance or the Act has not deprived the shareholder of his share itself. The share still be- longs to the shareholder. He is still entitled to the dividend that may be declared. He can deal with or dispose of the share as he pleases.

The learned Attorney-General contends that even if the other meaning of the word “proper- ty” is adopted, the shareholder has not been deprived of his” property” understood in that sense, that is to say he has not been deprived of the entire bundle of rights which put together constitute his “property “. According to him the” property” of the shareholder, besides and apart from his right to elect directors, to pass resolutions giving directions to the directors and to present a winding up petition, consists in his right to participate in the dividends declared on the profits made by the working of the company and, in case of winding up, to participate in the surplus that may be left after meeting the winding up expenses and paying the creditors. Those last mentioned rights, he points out, have not been touched at all and the shareholder can yet deal with or dispose of his shares as he pleases and is still entitled to dividends if and when declared. Therefore, concludes the learned Attorney-General, the shareholder cannot complain that he has been deprived of his “property”, for the totality of his rights have not been taken away. The argument thus formulated appears to me to be somewhat too wide, for it will then permit the legisla- ture to authorise the State to acquire or take possession, without any compensation, of almost the entire rights of the owner leaving to him only a few subsidiary rights. This result could not, in my opinion, have been intended by our Constitution. As said by Rich J. in the Minister for State for the Army v. Datziel (i) while dealing with section 31 (XXXI) of the Australian Constitution–
“Property, in relation to land, is a bundle of rights exercisable with respect to the land. The tenant of an unencurnbered estate in fee simple in possession has the largest possible bundle. But there is nothing in the placi- tum to suggest that the legislature was intended to be at liberty to free itself from the restrictive provisions of the placitum by taking care to seize something short of the whole bundle owned by the person whom it is expropriating.”
The learned Judge then concluded as follows at p. 286 :-
“It would in my opinion, be wholly inconsistent with the language of the placitum to hold that whilst preventing the legislature from authorising the acquisition of a citi- zen’s full title except upon just terms, it leaves it open to the legislature to seize possession and enjoy the full fruits of possession indefinitely, on any terms it chooses or upon no terms at all.”
(1) (1943-1944) 68 C,L.R. 261.

In my judgment the question whether the Ordinance or the Act has deprived the shareholder of his “property” must depend, for its answer, on whether it has taken away the substantial bulk of the rights constituting his “property”. In other words, if the rights taken away by the Ordinance or the Act are such as would render the rights left un- touched illusory and practically valueless, then there can be no question that in effect and substance the “property” of the shareholder has been taken away by the Ordinance or the Act. Judged by this test can it be said that the right to dispose of the share and the right to receive dividend, if any, or to participate in the surplus in the case of winding up that have been left to the shareholder are illu- sory or practically valueless, because the right to control the management by directors elected by him, the right to pass resolutions giving directions to the directors and the right to present a winding up petition have, for the time being, been suspended ? I think not. The right still pos- sessed by the shareholder are the most important of the rights constituting his “property”, although certain privi- leges incidental to the ownership have been put in abeyance for the time being. It is, in my opinion, impossible to say that the Ordinance or the Act has deprived the shareholder of his “property” in the sense in which that word is used in article 19 (1) (f) and article 31. The curtailment of the incidental privileges, namely, the right to elect directors, to pass resolutions and to apply for winding up may well be supported as a reasonable restraint on the exercise and enjoyment of the shareholder’s right of property imposed in the interests of the general public under article 19 (5), namely, to secure the supply of an essential commodity and to prevent unemployment.

Learned counsel for the petitioner, however, urges that the Ordinance and the Act have infringed the sharehold- er’s right to property in that he has been deprived of his valuable right to elect directors, to give directions by passing resolutions and, in case of apprehension of loss, to present a petition for the winding up of the company. These rights, it is urged, are by them- selves “property” and it is of this “property” that the shareholder is said to have been deprived bythe State under a law which does not provide for payment of compensation and which is, as such, an infraction of the shareholder’s funda- mental right to property under article 31 (2). Two ques- tions arise on this argument. Are these rights “property” within the meaning of the two articles I have mentioned ? These rights, as already stated, are, no doubt, privileges incidental to the ownership of the share which itself is property, but it cannot, in my opinion, be said that these rights, by themselves, and apart from the share are “proper- ty” within the meaning of those articles, for those articles only regard that as “property” which can by itself be ac- quired, disposed of or taken possession of. The right to vote for the election of directors, the right to pass reso- lutions and the right to present a petition for winding up are personal rights flowing from the ownership of the share and cannot by themselves and apart from the share be ac- quired or disposed of or taken possession of as contemplated by those articles. The second question is assuming that these rights are by themselves “property “, what is the effect of the Ordinance and the Act on such “property”. It is nobody’s case that the Ordinance or the Act has autho- rised any acquisition by the State of this “property” of the shareholder or that there has in fact been any such acquisi- tion. The only question then is whether this “property” of the shareholder, meaning thereby only the rights mentioned above, has been taken possession of by the State. It will be noticed that by the Ordinance or the Act these particular rights of the shareholder have not been entirely taken away, for he can still exercise these rights subject 0 course, to the sanction of the Government. Assuming, however, that the fetters placed on these rights are tantamount to the taking away of the rights altogether, there is nothing to indicate that the Ordinance or the Act has, after taking away the rights from the shareholder, vested them in the State or in any other person named by it so as to enable the State or any other person to exercise those rights of the shareholder.

The Government undoubtedly appoints directors under the Act, but such appointment is made in exercise of the the powers vested in the Government by the Ordinance or the Act and not in exercise of the shareholder’s right. As already indicated, entry 43 in the Union List authorises Parliament to make laws with respect, amongst other things, to the regulation of trading corpora- tions. There was, therefore, nothing to prevent Parliament from amending the Companies Act or from passing a new law regulating the management of the company by providing that the directors, instead of being elected by the shareholders, should be appointed by the Government. The new law has undoubtedly cut down the existing rights of the shareholder and thereby deprived the shareholder of his unfettered right to appoint directors or to pass resolutions giving direc- tions or to present a winding up petition. Such depriva- tion, however, has not vested the rights in the Government or its nominee. What has happened to the rights of the shareholder is that such rights have been temporarily de- stroyed or kept in abeyance.

The result, therefore, has been that although the shareholder has been for the time being deprived of his “property”, assuming these rights to be “property”, such “property” has not been acquired or taken possession of by the Government. If this be the result brought about by the Ordinance and the Act, do they offend against the fundamental rights guaranteed by article 31 ? Article 31 (1) formulates the fundamental right in a nega- tive form prohibiting the deprivation of property except by authority of law. It implies that a person may be deprived of his property by authority of law. Article 31 (2) prohib- its the acquisition or taking possession of property for a public purpose under any law, unless such law provides for payment of compensation. It is suggested that clauses (1) and (2)o[ article 31 deal with the same topic, namely, compulsory acquisition or taking possession of property, clause (2) being only an elaboration of clause (1). There appear to me to be two objections to this sug- gestion. If that were the correct view, then clause (1).must be held to be wholly redundant and clause (2), by itself, would have been sufficient. In the next place, such a view would exclude deprivation of property otherwise than by acquisition or taking of possession. One can conceive of circumstances where the State may have to deprive a person of his property without acquiring or taking possession of the same. For example, in any emergency, in order to prevent a fire spreading, the authorities may have to demolish an intervening building. This deprivation of property is sup- ported in the United States of America as an exercise of “police power “.This deprivation of property is different from acquisition or taking of possession of property which goes by the name of “eminent domain” in the American Law. The construction suggested implies that our Constitution has dealt with only the law of “eminent domain “, but has not provided for deprivation of property in exercise of police powers’ ‘. I am not prepared to adopt such construction, for I do not feel pressed to do so by the language used in article 31. On the contrary, the language of clause (1) of article 31 is wider than that of clause (2), for deprivation of property may well be brought about otherwise than by acquiring or taking possession of it. I think clause (1) enunciates the general principle that no person shall be deprived of his property except by authority of law, which, put in a positive form, implies that a person may be de- prived of his property, provided he is so deprived by au- thority of law. No question of compensation arises under clause (1). The effect of clause (2) is that only certain kinds of deprivation of property, namely those brought about by acquisition or taking possession of it, will not be permissible under any law, unless such law provides for payment of compensation. If the deprivation of property is brought about by means other than acquisition or taking possession of it, no compensation is required, provided that such deprivation is by authority of law. In this case, as already stated, although the shareholder has been deprived of certain rights, such deprivation has been by authority of law passed by a compe- tent legislative authority. This deprivation having been brought about otherwise than by acquisition or taking pos- session of such rights, no question of compensation can arise and, therefore, there can be no question of the infraction of fundamental rights under article 31 (2). It is clear, therefore, that so far as the shareholder is concerned there has been no infringement of his fundamental rights under article 19 (1) (f) or article 31, and the shareholder cannot question the constitutionality of the Ordinance or the Act on this ground.

As regards the company it is contended that the Ordi- nance and the Act by empowering the State to dismiss the managing agent, to discharge the directors elected by the shareholders and to appoint new directors have in effect authorised the State to take possession of the undertaking and assets of the company through the new directors appoint- ed by it without paying any compensation and, therefore, such law is repugnant to article 31 (2) of our Constitution. It is, however, urged by the learned Attorney-General that the mills and all other assets now in the possession and custody of the new directors who are only servants or agents of the said company are, in the eye of the law, in the possession and custody of the company and have not really been taken possession of by the State. This argument, however, overlooks the fact that in order that the posses- sion of the servant or agent may be juridically regarded as the possession of the master or principal, the servant or agent must be obedient to, and amenable to the directions of, the master or principal. If the master or principal has no hand in the appointment of the servant or agent or has no control over him or has no power to dismiss or discharge him, as in this case, the possession of such servant or agent can hardly, in law, be regarded as the possession of the company(1). In this view of the (1) See Elements of Law by Markby. 6th Edition. Para 371. p.192. matter there is great force in the argument that the proper- ty of the company has been taken possession of by the State through directors who have been appointed by the State in exercise of the powers conferred by the Ordinance and the Act and who are under the direction and control of the State and this has been done without payment of any compen- sation. The appropriate legislative authority was no doubt induced to enact this law, because, as the preamble to the Ordinance stated, on account of mismanagement and neglect, a situation had arisen in the affairs of the company which had prejudicially-affected the production of an essential com- modity and had caused serious unemployment amongst a certain section of the community, but, as stated by Holmes J. in Pennsylvania Coal Company v. Mahon(1), “A strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional. way of paying for the change.” Here, there- fore, it may well be argued that the property of the company having been taken possession of by the State in exercise of powers conferred by a law which does not provide for payment of any compensation, the fundamental right of the company has, in the eye of the law, been infringed.

If the fundamental right of the company has been infringed, at all, who can complain about such infringement ? Primafacie the company would be the proper person to come forward in vindication of its own rights. It is said that the directors having been dismissed, the company cannot act. This, however, is a misapprehension, for if the Act be void on account of its being unconstitutional, the directors appointed by the shareholders have never in law been dis- charged and are still in the eye of the law the directors of the company, and there was nothing to prevent them from taking proceedings in the name of the company at their own risk as to costs. Seeing that the directors have not come forward to make the application on behalf of the company and in its name the question arises whether (1) 260 U,S. 393.
an individual shareholder can complain. It is well settled in the United States that no one but those whose rights are directly affected by a law can raise the question of the constitutionality of that law. Thus in McCabe v. Atchison(1) which arose out of a suit filed by five Negros against five Railway Companies to restrain them from making any distinction in service on account of race pursuant to an Oklahoma Act known as ‘ ‘The Separate Coach Law,” in uphold- ing the dismissal of the suit Hughes J. observed :–
“It is an elementary principle that in order to justify the granting of this extraordinary relief, the complainants’ need of it and the absence of an adequate remedy at law must clearly appear. The complaint cannot succeed because some- one else may be hurt. Nor does it make any difference that other persons who may be injured are persons of the same race or occupation. It is the fact, clearly established, of injury to the complainant–not to others -which justi- fies judicial interference.”

In that case there was no allegation that anyone of the plaintiffs had ever travelled on anyone of the rail roans or had requested any accommodation in any of the sleeping cars or that such request was refused. The same principle was laid down in Jeffrey Manufacturing Company v. Blagg(2), Hendrick v. MaCyland(3) and Newark Natural Gas and Fuel Company v. The City of Newark(1). In each of these cases the Court declined to permit the person raising the question of constitutionality to do so on the ground that his rights were not directly affected by the law or Ordinance in ques- tion. On the other hand, in Truax v. Raich(5) and in Bu- chanan v. Warley(5) the Court allowed the plea because in both the cases the person raising it was directly affected. In the first of the two last mentioned cases an Arizona Act of 1914 requiring employers employing more than five workers to employ not less than eighty per cent. native born citi- zens was (1) 235 u.s. 151. (4) 242 u.s. 403.
(2) 235 u.s. 571. (5) 239 u.s. 33.
(3) 235 U.S. 610 (6) 245 u.s. 60.
challenged by an alien who had been employed as a cook in a restaurant. That statute made a violation of the Act by an employer punishable. The fact that the employment was at will or that the employer and not the employee was subject to prosecution did not prevent the employee from raising the question of constitutionality because the statute, if en- forced, would compel the employer to discharge the employee and, therefore, the employee was directly affected by the statute. In the second of the two last mentioned cases a city Ordinance prevented the occupation of a plot by a colored person in a block where a majority of the residences were occupied by white persons. A white man sold his property in such a block to a Negro under a contract which provided that the purchaser should not be required to accept a deed unless he would have a right, under the laws of the city, to occupy the same as a residence. The vendor sued for specific performance and contended that the Ordinance was unconstitutional. Although the alleged denial of con- stitutional rights involved only the rights of coloured persons and the vendor was a white person yet it was held that the vendor was directly affected, because the Courts below, in view of the Ordinance, declined to enforce his contract and thereby directly affected his right to sell his property. It is, therefore, clear that the constitutional validity of a law can be challenged only by a person whose interest is directly affected by the law. The question then arises whether the infringement of the company’s rights so directly affects its shareholders as to entitle any of its shareholders to question the constitutional validity of the law infringing the company’s rights. The question has been answered in the negative by the Supreme Court of the United States in Darnell v. The State of Indi- ana(1). In that case the owner of a share in a Tennessee corporation was not allowed to complain that an Indiana law discriminated against Tennessee corporations in that it did not make any allowance, as it did in the case of Indiana corporations, where the corporation (1) 226 U.S. 388. had property taxed within the State.

This is in accord with the well established legal principle that a corporation is a legal ‘entity capable of holding pro perty and of suing or being sued and the corporators are not, in con- templation of law, the owners of the assets of the corpora- tion. In all the cases referred to above the question of constitutionality was raised in connection with the equal protection clause in the Fourteenth Amendment of the American Federal Constitution. If such be the require- ments of law in connection with the equal protection clause which corresponds to our article 14, it appears to me to follow that only a person who is the owner of the property can raise the question of constitutionality under article 31 of a law by which he is so deprived of his property. If direct interest is necessary to permit a person to raise the question of constitutionality under article 14, a direct interest in the property will, I apprehend, be necessary to entitle a person to challenge a law which is said to infringe the right to that property under article 31. In my opinion, although a shareholder may, in a sense be interested to see that the company of which he is a shareholder is not deprived of its property he cannot, as held in Darnell v. Indiana(1), be heard to complain, in his own name and on his own behalf, of the infringement of the fundamental right to property of the company, for, in law, his own right to property has not been infringed as he is not the owner of the company’s properties. An interest in the company owning an undertak- ing is not an interest in the undertaking itself. The interest in the company which owns an undertaking is the “property” of the shareholder under article 31 (2), but the undertaking is the property of the company and not that of the shareholder and the latter cannot be said to have a direct interest in the property of the company. This is the inevitable result of attributing a legal personality to a corporation. The proceedings for a writ in the nature of a writ of habeas corpus appear to be somewhat different for the (1) 226 u.S. 338 rules governing those proceedings permit, besides the person imprisoned, any person, provided he is not an utter strang- er, but is at least a friend or relation of the imprisoned person, to apply for that particular writ.

But that special rule does not appear to be applicable to the other writs which require a direct and tangible interest in the applicant to support his application. This must also be the case where the applicant seeks to raise the question of the constitutionality of a under articles 14, 19 and 31. For the reasons set out above the present petitioner cannot raise the question of constitutionality of the impugned law under article 31. He cannot complain of any infringement of his own rights as a shareholder, because his “property” has not been acquired or taken possession of by the State although he has been deprived of his right to vote and to present a winding up petition by authority of law. Nor can he complain of an infringement of the company’s right to property because he is not, in the eye of law, the owner of the property in question and accordingly not directly interested in it. In certain exceptional cases where the company’s property is injured by outsiders, a shareholder may, under the English law, alter making all endeavours to induce the persons in charge of the affairs of the company to take steps, file a suit on behalf of himself and other shareholders for redressing the wrong done to the company, but that principle does not apply here for this is not a suit, nor has it been shown that any attempt was made by the petitioner to induce the old directors to take steps nor do these proceedings purport to have been taken by the petitioner on behalf of himself and the other shareholders of the.company.

The only other ground on which the Ordinance and the Act have been challenged is that they infringe the the fundamental rights guaranteed by article 14 of the Constitution. “Equal protection of the laws”, as observed by Day . in Southern Railway Company v. Greene (1), “means subjection to equal laws, applying (1) 216 U.S. 400 alike to all in the same situation”. The inhibition of the article that the State shall not deny to any person equality before the law or the equal protection of the laws was designed to protect all persons against legislative discrim- ination amongst equals and to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation. It does not, howev- er, mean that every law must have universal application, for all persons are not, by nature, attainment or circumstances, in the same position. The varying needs of different class- es of persons often require separate treatment and it is, therefore, established by judicial decisions that the equal protection clause of the Fourteenth Amendment of the Ameri- can Constitution does not take away from the State the power to classify persons for legislative purposes. This classi- fication may be on different bases. It may be geographical or according to objects or occupations or the like. If law deals equally with all of a certain well-defined class it is not obnoxious and it is not open to the charge of a denial of equal protection on the ground that it has no applica- tion to other persons, for the class for whom the law has been made is different from other persons and, there- fore, there is no discrimination amongst equals. It is plain that every classification is in some degree likely’ to produce some inequality, but mere production of inequality is not by itself enough. The inequality produced, in order to encounter the challenge of the Constitution, must be “actually and palpably unreasonable and arbitrary.” Said Day J. in Southern Railway Company v. Greene(1) :—“

While reasonable classification is permitted, without doing vio- lence to the equal protection of the laws, such classifica- tion must be based upon some real and substantial distinc- tion, bearing a reasonable and just relation to the things in respect to which such classification is imposed; and the classification cannot be arbitrarily made without any substantial basis. Arbitrary selection, it has been said, cannot be justified by calling it classification”. Quite conceivably there may be a law relating to a single individual if it is made apparent that, on account of some special reasons applicable only to him and inapplicable to anyone else, that single individual is a class by himself. In Middieton v. Texas Power and Light Company(1) it was pointed out that there was a strong presumption that a legislature understood and correctly appreciated the needs of its own people, that its laws were directed to problems made manifest by experience and that the discriminations were based upon adequate grounds. It was also pointed out in that case that the burden was upon him who attacked a law for unconstitutionality. In Lindsley v. Natural Carbonic Gas Company(2) It was also said that one who assailed the classification made in a law must carry the burden of showing that it did not rest upon any reasonable basis but was essentially arbitrary. If there is a classi- fication, the Court will not hold it invalid merely because the law might have been extended to other persons who in some respects might resemble the class for which the law was made, for the legislature is the best judge of the needs of the particular classes and to estimate the degree of evil so as to adjust its legislation according to the exigency found to exist. If, however, there is, on the face of the stat- ute, no classification at all or none on the basis of any apparent difference specially peculiar to any particular individual or class and not applicable to any other person or class of persons and yet the law hits only the particular individual or class it is nothing but an attempt to arbi- trarily single out an individual or class for discriminating and hostile legislation. The presumption in favour of the legislature cannot in such a case be legitimately stretched so as to throw the impossible onus on the complainant to prove affirmatively that there are other individuals or class of individuals who also possess the precise amount of the identical qualities which are attributed to him so as to form a class with him. As pointed out by Brewer J. in the Gulf, Colorado and Santa Fe’Railway v.W.H. Ellis (3), while good faith (1} 249 U.S. 152. (2) 220 U.S. 61. (3) 165 U.S.. 150. and a knowledge of existing conditions on the part of a legislature was to be presumed, yet to carry that presump- tion to the extent of always holding that there must be some undisclosed and unknown reason for subjecting certain indi- viduals or corporations to hostile and discriminating legis- lation was to make the protecting clause a mere rope of sand, in no manner restraining State action.

The complaint of the petitioner on this head is formu- lated in paragraph 8 (iii) of the petition as follows :—“The Ordinance denied to the company and its sharehold- ers equality before the law and equal protection of the laws and was thus a violation of article 14 of the Constitution. The power to make regulations relating to trading corpo- rations or the control or production of industries was a power which consistently with article 14 could be exercised only generally or with reference to a class and not with reference to a single company or to shareholders of a single company.” The Act is also challenged on the same ground in paragraph 9 of the petition. The learned Attorney-General contends that the petitioner as an individual shareholder cannot complain of discrimination against the company. It will be noticed that it is not a case of a shareholder complaining only about discrimination against the company or fighting the battle of the company but it is a case of a shareholder complaining of discrimination against himself and other shareholders of this company.

It is true that there is no complaint of discrimination inter se the share- holders of this company but the complaint is that the share- holders of this company, taken as a unit, have been discrim- inated vis-a-vis the shareholders of other companies. Therefore, the question as to the right of the shareholder to question the validity of a law infringing the right of the company does not arise. Here the shareholder is com- plaining of the infringement of his own rights and if such infringement can be established I see no reason why the shareholder cannot come within article 32 to vindicate his own rights. The fact that these proceedings have been taken by one single shareholder holding only one single fully paid up share does not appear to me to make any the least difference in principle. If this petitioner has, by the Ordinance or the Act, been discriminated against and denied equal protec- tion of the law, his fundamental right has been infringed and his right to approach this Court for redress cannot be made dependent on the readiness or willingness of other shareholders whose rights have also been infringed to join him in these proceedings or of the company to take substan- tive proceedings. To take an example, if any law discrimi- nates against a class, say the Punjabis, any Punjabi may question the constitutionality of the law, without joining the whole Punjabi community or without acting on behalf of all the Punjabis. To insist on his doing so will be to put a fetter on his fundamental right under article 32 which the Constitution has not imposed on him. Similarly, if any law deprives a particular shareholder or the shareholders of a particular company of the ordinary rights of sharehold- ers under the general law for reasons not particularly and specially applicable to him or them but also applicable to other shareholders of other companies, such law surely offends against article 14 and any one so denied the equal protection of law may legitimately complain of the infringe- ment of his fundamental right and is entitled as of right to approach this Court under article 32 to enforce his own fundamental right under article 14, irrespective of whether any other person joins him or not.

To the charge of denial of equal protection of the laws the respondents in the affidavit of Sri Vithal N. Chandavar- kar filed in opposition to the petition make the following reply:–“With reference to paragraph 6 of the petition, I deny the soundness of the submissions that on or from the 26th January, 1950, when the Constitution of India came into force the said Ordinance became void under article 13(1) of the Constitution or that the provisions thereof were inconsistent with the provisions of Part III of the said Constitution or for any of the other grounds mentioned in paragraph 8 of the said petition.” In the whole of the affidavit in opposition there is no suggestion as to why the promulgation of the Ordinance or the passing of the Act was considered necessary at all or on what principle or basis either of them was founded. No attempt has been made in the affidavit to show that the Ordinance or the Act was based upon any principle of classification at all or even that the particu- lar company and its shareholders possess any special quali- ties which are not to be found in other companies and their shareholders and which, therefore, render this particular company and its shareholders a class by themselves. Neither the affidavit in opposition nor the learned Attorney-General in course of his arguments referred to the statement of the objects and reasons for introducing the bill which was eventually enacted or the Parliamentary debates as showing the reason why and under what circumstances this law was made and, therefore, apart from the question of their admis- sibility in evidence, the petitioner has had no opportunity to deal with or rebut them and the same cannot be used against him.
The learned Attorney-General takes his stand on the presumption that the law was founded on a valid basis of classification, that its discriminations were based upon adequate grounds and that the law was passed for safeguard- ing the needs of the people and that, therefore, the onus was upon the petitioner to allege and prove that the classi- fication which he challenged did not rest upon any reasona- ble basis but was essentially arbitrary. I have already said that if on the face of the law there is no classification at all or, at any rate, none on the basis of any apparent difference specially peculiar to the individual or class affected by the law, it is only an instance of an arbitrary selection of an individual or class for discriminating and hostile legislation and, therefore, no presumption can, in such circumstances, arise at all. Assuming, however, that even in such a case the onus is thrown on the complainant, there can be nothing to prevent him from proving, if he can, from the text of. the law itself, that it is “actually and palpably unreasonable and arbitrary” and thereby discharging the initial onus.

The Act is intituled an Act to make special provision for the proper management and administration of the Sholapur Spinning and Weaving Company, Limited.” There is not even a single preamble alleging that the company was being misman- aged at all or that any special reason existed which made it expedient to enact this law. The Act, on its face, does not purport to make any classification at all or to specify any special’ vice to which this particular company and its shareholders are subject and which is not to be found in other companies and their shareholders so as to justify any special treatment. Therefore., this Act, ex facie, is nothing but an arbitrary selection of this particular compa- ny and its shareholders for discriminating and hostile treatment and read by itself.is palpably an infringement of Article 14 of the Constitution.

The learned Attorney-General promptly takes us to the preambles to the Ordinance which has been replaced by the Act and suggests that the Act is based on the same consider- ations on which the Ordinance was promulgated. Assuming that it is right and permissible to refer to and utilise the preambles, do they alter the situation ? The preambles were as follows :-“Whereas on account of mismanagement and ne- glect a situation has arisen in the affairs of the Sholapur Spinning and Weaving Company, Limited, which has prejudi- cially affected the production of an essential commodity and has caused serious unemployment amongst a certain section of the community;And whereas an emergency has arisen which renders it necessary to make special provision for the proper management and administration of the aforesaid compa- ny;-” The above preambles quite clearly indicate that the justification of the Ordinance rested on mismanagement and neglect producing certain results therein specified. It will be noticed that apart from these preambles there is no material whatever before us establishing or even suggesting that this company and its shareholders have in fact been guilty of any mismanagement or neglect. Be that as it may, the only reason put forward for the promulgation of the Ordinance was mismanagement resulting in falling off of production and in producing unemployment. I do not find it necessary to say that mismanagement and neglect in conducting the affairs of companies can never be a criterion or basis of classifica- tion for legislative purposes. I shall assume that it is permissible to make a law whereby all delinquent companies and ‘their shareholders may be brought to book and all companies mismanaging their affairs and the shareholders of such companies may, in the interest of the general public, be deprived of their right to manage the affairs of their companies. Such a classification made by a law would bear a reasonable relation to the conduct of all delinquent compa- nies and shareholders and may, therefore, create no inequal- ity, for the delinquent companies and their shareholders from a separate class and cannot claim equality of treatment with good companies and their shareholders who are their betters. But a distinction cannot be made between the delinquent companies inter se or between shareholders of equally delinquent companies and one set cannot be punished for its delinquency while another set is permitted to continue, or become, in like manner, delinquent without any punishment unless there be some other apparent difference in their respective obligations and unless there be some cogent reason why prevention of mismanagement is more imperative in one instance than in the other. To do so will be nothing but an arbitrary selection which can never be justified as a permissible classiffication. I am not saying that this particular company and its shareholders may not be guilty of mismanagement and negligence which has brought about seri- ous fall in production of an essential commodity and also considerable unemployment. But if mismanagement affect- ing production and resulting in unemployment is to be the basis of a classification for making a law for preventing mismanagement and securing production and employment, the law must embrace within its ambit all companies which now are or may hereafter become subject to the vice. This basis of classification, by its very nature, cannot be exclusively applicable to any partic- ular company and its shareholders but is capable of wider application and, therefore, the law founded on that basis must also be wide enough so as to be capable of being ap- plicable to whoever may happen at any time to fall within that classification. Mismanagement affecting production can never be reserved as a special attribute peculiar to a particular company or the shareholders of a particular company.

It it were permissible for the legislature to single out an individual or class and to punish him or it for some delinquency which may equally be found in other individuals or classes and to leave out the other individu- als or classes from the ambit of the law the prohibition of the denial of equal protection of the laws would only be a meaningless and barren form of words. The argument that the presumption being in favour of the legislature, the onus is on the petitioner to show there are other individuals or companies equally guilty of mismanagement prejudicially affecting the production of an essential commodity and causing serious unemployment amongst a certain section of the community does not, in such. circumstances, arise, for the simple reason that here there has been no classification at all and, in any case, the basis of classification by its very nature is much wider and cannot, in it application, be limited only to this company and its shareholders and, that being so, there is no reason to throw on the petitioner the almost impossible burden of proving that there are other companies which are in fact precisely and in all particu- lars similarly situated In any event, the petitioner, in my opinion, may well claim to have discharged the onus of showing that this company and its shareholders have been singled out for discriminating treatment by showing that the Act, on the face of it, has adopted a basis of classifica- tion which, by its very nature, cannot be exclusively ap- plicable to this company and its shareholders but Which may be equally appplicable to other companies and their shareholders and has penalised this particular company and its shareholders, leaving out other companms and their shareholders who may be equally guilty of the alleged vice of mismanagement and neglect of the type referred to in the preambles.

In my opinion the legislation in question infringes the fundamental rights of the petitioner and offends against article 14 of our Constitution.

The result, therefore, is that this petition ought to succeed and the petitioner should have an order in terms of prayer (3) of the petition with costs.

Petition dismissed.

Agent for the petitioner: M.S.K. Aiyengar. Agent for opposite party Nos. 1 & 2:P.A. Mehta. Agent for opposite party Nos. 3 to 5 and 7 to 10:
Rajinder Narain.

India and Indian Constitution is not Federal

“India that is Bharat shall be Union of States”

1) Power of the Union Parliament, under Article 3, to alter the names, areas and boundaries of the existing States;

2) Provision for single citizenship under Article 9;

3) Position of the Governor, as an agent of the Central Government;

4) Discretion vested with the Governor under Article 174 and Article 200;

5) Power of the Parliament to make laws on subjects mentioned in the State List under Articles 249, 250 and 253;

6) The rule of repugnancy operating in favour of the Central Law under Article 254;

7) Powers of the central Government, in respect of emergency, under Articles 352 to 360.

Again 

Single Citizenship:

A Strong Centre:

Single Constitution for Union and States:

Centre Can Change Name and Boundaries of States:

Single Unified Judiciary:

Unitary in Emergencies:

Common All-India Services:

Inequality of Representation in the Council of States:

Appointment of Governor by President:

Appointment of the High Court Judges by the President:

The Office of the Comptroller and Auditor-General:

Centralized Electoral Machinery:

Flexible Constitution:

Special Powers of Council of State over State List:

Control over State Laws:

Financial Dependence of States:

Considering the above-stated provisions, Dr. K.C. Wheare has coined the expression “quasifederal’ for Indian Constitution. In the opinion of Dr. Ivor Jennings, it is a unitary’ “Constitution with subsidiary’ federal features.” Prof. Alexandro Wicz holds it “a unitary’ Constitution with vertically divided sovereignty.”

Calling India as federal is emotional rather than legal .

Written Constitution

The term “Constitution,” referred to the body or general framework of British laws and institutions. In eighteenth-century American political thought “constitution” came to refer to a body of fundamental principles, extracted from human experience, which, in written form, set the limits of governmental power. Older charters of rights and liberties for individual colonies, originally conceived as general references rather than guarantees of fundamental political rights, were reinterpreted as efforts to codify first principles of government. The permanent preservation of rights in a written constitution came to be regarded as a necessary against tyranny.

The idea of a written constitution imparted a new dimension to the law in America. Law is a body of universal principles applied locally. The very universality of those principles gave them permanence; hence law could not be changed completely with time and circumstance but could change only in conformity with the mandates of the Constitution.

Lok Prahari through its General Secretary Vs. State of Uttar Pradesh & Ors.[ALL SC 2018 MAY]

KEYWORDS:-Struck Down a Law 

c

DATE:- MAY 07, 2018-

Section 4(3) of the 1981 Act cannot pass the test of Cof the Constitution of India and is, therefore, liable to be struck down. We, therefore, hold that the aforesaid Section 4(3) of the Uttar Pradesh Ministers (Salaries, Allowances and Miscellaneous Provisions) Act, 1981 is ultra vires the Constitution of India as it transgresses the equality clause under Article 14″.

In a democratic republican government public servants entrusted with duties of public nature must act in a manner that reflects that ultimate authority is vested in the citizens and it is to the citizens that holders of all public offices are eventually accountable. Such a situation would only be possible within a framework of equality and when all privileges, rights and benefits conferred on holders of public office are reasonable, rational and proportionate.

ACTS:-Section 4(3) of the Uttar Pradesh Ministers (Salaries, Allowances and Miscellaneous Provisions) Act, 1981

SUPREME COURT OF INDIA

Lok Prahari through its General Secretary Vs. State of Uttar Pradesh & Ors.

[Writ Petition (C) No.864 of 2016]

RANJAN GOGOI, J.

1. This writ petition under Article 32 of the Constitution of India raises a challenge to the validity of Section 4(3) of the Uttar Pradesh Ministers (Salaries, Allowances and Miscellaneous Provisions) Act, 1981 (hereinafter referred to as “the 1981 Act”), as amended in 2016.

2. The case has a somewhat chequered history. Suffice it will be to recapitulate that as former Chief Ministers of the State of Uttar Pradesh continued to occupy their official accommodation even after demitting office, in clear breach of Section 4 of the 1981 Act as it had then existed, a writ petition was filed before the High Court of Allahabad by the present petitioner. During the pendency of the said writ petition, a set of 2 Rules namely “U.P. Ex-Chief Ministers Residence Allotment Rules, 1997” (hereinafter referred to as “the 1997 Rules”) were framed to provide for allotment of government accommodation to former Chief Ministers. The writ petition was accordingly amended to challenge the validity of the provisions of the 1997 Rules. However, the same was closed by the High Court on a statement made on behalf of the State of Uttar Pradesh that former Chief Ministers would be henceforth allotted only Type V bungalows and that too on payment of rent etc.

3. In the aforesaid situation, the present petitioner had filed Writ Petition (C) No.657 of 2004 (Lok Prahari vs. State of Uttar Pradesh and others) before this Court challenging the validity of the aforesaid 1997 Rules. By judgment and order dated 1st August 20161, the aforesaid writ petition was answered by this Court by striking down the 1997 Rules, inter alia, on the ground that the provision for accommodation for ex-Chief Ministers as made under the aforesaid 1997 Rules was in direct conflict with the provisions of Section 4 of the 1981 Act. Paragraphs 33, 37 and 38 of the said report in Lok Prahari (supra) would be relevant to notice:

“33. We may now turn to the issue whether the impugned 1997 Rules are ultra vires Article 14 of the Constitution of India and also repugnant to the provisions of the 1981 Act. The relevant extract of the 1997 Rules is as under:

“4. Allotment of residence.-A residence on falling vacant will be allotted by the Estate Officer to such ex- Chief Minister who has given an application under these Rules. There will be no right for allotment of a house outside Lucknow under these Rules.

* * *

6. Period for which allotment subsists.-The allotment of residence to ex-Chief Ministers shall be effective only during their lifetime. The allotment shall be deemed to be automatically cancelled upon the death of ex-Chief Minister and family members residing therein will have to invariably hand over the possession of the residence concerned to the Estate Department within 3 months from the date of death. If the family members residing in the residence do not hand over the possession, recovery rent, damages, etc. shall be taken under the provisions of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972.”

* * * * * *

37. If we look at the position of other constitutional post holders like Governors, Chief Justices, Union Ministers, and Speaker, etc. all of these persons hold only one “official residence” during their tenure. The respondents have contended that in a federal set-up, like the Union, the State has also power to provide residential bungalow to the former Chief Minister. The above submission of the respondent State cannot be accepted for the reason that the 1981 Act does not make any such provision and the 1997 Rules, which are only in the nature of executive instructions and contrary to the provisions of the 1981 Act, cannot be acted upon.

38. Moreover, the position of the Chief Minister and the Cabinet Ministers of the State cannot stand on a separate footing after they demit their office. Moreover, 4 no other dignitary, holding constitutional post is given such a facility. For the aforestated reasons, the 1997 Rules are not fair, and more so, when the subject of “salary and allowances” of the Ministers, is governed by Section 4(2)(a) of the 1981 Act.”

4. Section 4 of the 1981 Act was amended in the year 2016. Under Section 4(3) brought in by the 2016 Amendment (U.P. Act No.22 of 2016), former Chief Ministers of the State became entitled to allotment of government accommodation for their life time. The validity of the aforesaid Section 4(3), as amended, has been questioned by the writ petitioner, a registered body, which claims to be “committed to upholding of the Constitution and enforcement of the Rule of law”.

5. Section 4 of the 1981 Act as originally enacted and as amended in the year 2016 by 2016 Amendment is in the following terms:

Section 4 of the Act, as originally enacted

Section 4 of the Act, as amended in the year 2016 by 2016 Amendment (U.P Act No. 22 of 2016)

4.Residence.-

(1) Each Minister shall be entitled without payment of any rent to the use throughout the term of his office and for period of fifteen days thereafter, of a residence at Lucknow which shall be furnished and maintained at public expenses at the prescribed scale.

(2) Where a Minister has not been provided with a residence in accordance with sub-Section (1), or does not avail of the benefit of the said sub section, he shall be entitled to a compensatory allowance at the rate of-

(a) three hundred rupees per month in the case of Deputy Minister, and

(b) five hundred rupees per month in any other case.

4. For section 4 of the principal Act, the following sections shall be substituted, namely:-

(1) The Chief Minister and each Minister shall be entitled, without payment of any rent to the use, throughout the term of his office and for a period of fifteen days thereafter, of a residence at Lucknow which shall be furnished and maintained at public expense at the prescribed scale.

(2) Where the Chief Minister or a Minister has not been provided with a residence in accordance with subsection( 1) or does not avail of the benefit of the said subsection, he shall be entitled to a compensatory allowance at the rate of –

(a) ten thousand rupees per month in the case of the Chief Minister, a Minister, a Minister of State (Independent Charge) and a Minister of State;

(b) eight thousand rupees per month in the case of a Deputy Minister.

(3) A government residence shall be allotted to a former Chief Minister of Uttar Pradesh, at his/her request, for his/her life time, on payment of such rent as may be determined from time to time by the Estate Department of the State Government.

6. The 1981 Act was amended by the Uttar Pradesh Ministers and State Legislature, Officers and Members Amenities Laws (Amendment) Act, 1990 (U.P. Act No.5 of 1990) (hereinafter referred to as “1990 Amendment”) by insertion of 6 sub-section (1-A) to Section 4 which is in the following terms:

“(1-A) Each Minister for whose use a residence at Lucknow has been provided under sub-section (1) shall immediately after the expiration of the period referred to in that sub-section, vacate such accommodation and an officer authorized by the State Government in this behalf may take possession of the accommodation and may for the purpose use such force as may be necessary in the circumstances.

Explanation – For the purposes of this subsection ‘Minister’ includes a person who has ceased to be a Minister”, and also includes a person who was given the status of a Minister.”

7. By another amendment to the 1981 Act by the Uttar Pradesh Ministers and State Legislature, Officers and Members Amenities Laws (Amendment) Act, 1997 (U.P. Act No.8 of 1997) (hereinafter referred to as “1997 Amendment”) Section 4-A was inserted, which is to the following effect: “4-A. Special provisions regarding certain accommodations.-

(1) On and from the commencement of the Uttar Pradesh Ministers and State Legislature Officers and Members Amenities Laws (Amendment) Act, 1997, the State Government may, with a view to ensuring timely availability of residence to a Minister under sub-section (1) of Section 4, by a notified order, specify any type-VI accommodation or an accommodation in which a Minister was in occupation at any time, under the control and Management of the Estate Department of the State Government, as Minister’s residence and an accommodation so specified shall be allotted to a Minister only and not to any other person.

(2) The State Government, or an officer authorized by it in this behalf may, if a person other than a Minister referred to in sub-section (1-A) of Section 4 is in occupation of an accommodation specified as Minister’s residence under sub-section (1) on the basis of any allotment order or otherwise, cancel the allotment order of such person, if any, and by notice in writing require such person to vacate the said accommodation within fifteen days from the date of service upon him of such notice, and if such person fails to vacate the said accommodation within the said period, an officer authorized by the State Government in this behalf may take possession of the accommodation and may for the purpose use such force as may be necessary in the circumstances”.

8. It will be worthwhile to note at this stage that while Section 4(1-A) of the 1981 Act has been deleted by the 2016 Amendment Section 4-A continues to remain on the statute book.

9. Section 4-A(2) of the 1981 Act, extracted above, visualize that if any person other than the Minister is in occupation of accommodation specified as Minister’s residence under sub-section (1) of Section 4-A (Type VI accommodation) the allotment order of such person shall be cancelled and the occupant would be required to vacate the said accommodation within fifteen days from the date of service of notice, failing 8 which, the Authorized Officer would be competent in law to take possession of the accommodation, if necessary, by use of such force, as may be required.

10. Having noted the salient features of the provisions of the 1981 Act the question that arises for determination in the present proceedings may be summarized as follows: “Whether retention of official accommodation by the functionaries mentioned in Section 4(3) of the 1981 Act after they had demitted office violate the equality clause guaranteed by Article 14 of the Constitution of India.”

11. The petitioner – body which is a registered society under the Societies Registration Act, 1860 is represented in these proceedings by its Secretary Shri S.N. Shukla, who is a retired I.A.S. Officer. Though Shri Shukla had advanced his arguments and contentions with great clarity, yet, having regard to the importance of the question raised we had thought it proper to take the assistance of Shri Gopal Subramanium, learned Senior Counsel of this Court and to assist him we had thought it proper to request Shri Gopal Sankaranarayanan, learned counsel, a member of the Supreme Court Bar Association. Both Shri Gopal Subramanium, learned Senior Counsel and Shri Gopal Sankaranarayanan, learned counsel have rendered their valuable assistance to this Court which assistance is being acknowledged by the Court at the very outset of the present order.

12. Though the issue in the present proceeding is strictly confined to the provisions of the 1981 Act, having regard to the fact that there may be similar/pari materia provisions in force in different States/Union Territories and also in the Union we had thought it proper to inform, through the learned Amicus Curiae, the law officers of the Union and all the States/Union Territories of the pendency of the present writ petition and the issues arising therein. Pursuant thereto, the responses of the Union and the States of Assam, Bihar, Tamil Nadu and Odisha have been received. Shri Aman Lekhi, learned ASG has submitted that the Government Accommodation is provided to former Presidents, Vice-Presidents, Prime Ministers of the country.

The issue had come up for consideration in this Court in Shiv Sagar Tiwari vs. Union of India and others  wherein this Court has approved the action taken in the matter of provision of official accommodation to the aforesaid dignitaries under the extant Rules in the following manner:

“72. Keeping in view the very high constitutional position occupied by the President, Vice-President and Prime Minister, we feel no difficulty in stating that they should be accommodated in government premises after demitting of office by them, so that problem of suitable residence does not trouble them in the evening of life. What should be the terms of the same is a matter to be decided by the Government.”

13. Insofar as the States of Tamil Nadu and Odisha are concerned, it is clear from the communications received from the Advocate Generals of the said States by the office of the learned Amicus Curiae Shri Gopal Subramanium that no provision for official accommodation to former Chief Ministers has been made by the said two states whereas in the case of States of Bihar and Assam such provision has been made by executive instructions issued by the State under Article 162 of the Constitution of India.

14. We had thought it proper to request the learned Amicus Curiae to sound the Advocate Generals of the States on the pendency of this writ petition to enable the States to render assistance to the Court in the matter of adjudication of 11 the validity of Section 4(3) of the 1981 Act in view of the fact that some of the States may have pari materia provisions in force. No such contest by the States with regard to the validity of the Section 4(3) of the 1981 Act had been forthcoming except to the extent mentioned hereinabove on behalf of the Union of India. We, therefore, proceed to undertake the present exercise which, we make it clear, is confined to the issue of validity of Section 4(3) of the 1981 Act.

15. It would be appropriate to initiate the discourse by remembering the preamble to the Constitution of India which is in the following terms.

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

JUSTICE, social, economic and political;

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

EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty sixth day of November, 1949,

DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

16. The preamble to the Constitution of India embodies, inter alia, the principles of equality and fraternity and it is on the basis of these principles of equality and fraternity that the Constitution recognizes only one single class of citizens with one singular voice (vote) in the democratic process subject to provisions made for backward classes, women, children, SC/ST, minorities, etc. A special class of citizens, subject to the exception noted above, is abhorrent to the constitutional ethos.

17. The resolve of ‘the People of India’ to have a republican form of Government is a manifestation of the constitutional philosophy that does not recognize any arbitrary sovereign power and domination of citizens by the State. The republican liberty and the doctrine of equality is the central feature of the Indian democracy.

18. It is, therefore, axiomatic that in a democratic republican government public servants entrusted with duties of public nature must act in a manner that reflects that ultimate authority is vested in the citizens and it is to the citizens that holders of all public offices are eventually accountable. Such a situation would only be possible within a framework of equality and when all privileges, rights and benefits conferred on holders of public office are reasonable, rational and proportionate.

19. It may be necessary herein to recapitulate the Seven Principles of Public Life Report by Lord Nolan which find mention in the judgment of this Court in Vineet Narain and others vs. Union of India and another 3 (paragraph 54). This Court in paragraph 55 of the report in Vineet Narain (supra) had observed:

“These principles of public life are of general application in every democracy and one is expected to bear them in mind while scrutinizing the conduct of every holder of a public office.” The seven principles of public life stated in the Report by Lord Nolan are as follows:

“THE SEVEN PRINCIPLES OF PUBLIC LIFE

Selflessness

Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends.

Integrity

Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties.

Objectivity

In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.

Accountability

Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.

Openness

Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.

Honesty

Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.

Leadership

Holders of public office should promote and support these principles by leadership and example.”

20. It would be significant to note that the legislative anxiety to bring in a classless society, a constitutional vision, inter alia, found manifestation in the Twenty-sixth (26th) Amendment to the Constitution of India by which Articles 291 and 362 were repealed and a new Article 366A was incorporated, resulting in depriving the Rulers of Princely States the recognition accorded to them and 15 declaring the abolition of the privy purse. In the resultant challenge by a co-Ruler of an erstwhile sovereign Indian State of Kurundwad Jr. this Court in Shri Raghunathrao Ganpatrao vs. Union of India 4 while dealing with the challenge, inter alia, spoke as follows:

“96. Permanent retention of the privy purse and the privileges of rights would be incompatible with the sovereign and republican form of Government. Such a retention will also be incompatible with the egalitarian form of our Constitution. That is the opinion of the Parliament which acted to repeal the aforesaid provisions in exercise of its constituent power. The repudiation of the right to privy purse privileges, dignities etc. by the deletion of Articles 291 and 362, insertion of Article 363-A and amendment of clause (22) of Article 366 by which the recognition of the Rulers and payment of privy purse are withdrawn cannot be said to have offended Article 14 or 19(g) [sic 19(1)(f)] and we do not find any logic in such a submission. No principle of justice, either economic, political or social is violated by the Twenty-sixth Amendment.

Political justice relates to the principle of rights of the people, i.e. right to universal suffrage, right to democratic form of Government and right to participation in political affairs. Economic justice is enshrined in Article 39 of the Constitution. Social justice is enshrined in Article 38. Both are in the directive principles of the Constitution. None of these rights are abridged or modified by this Amendment. We feel that this contention need not detain us any more and, therefore, we shall pass on to the next point in debate.”

21. An instance of State action inconsistent with the constitutional goal to secure socio-economic justice was dealt with by this Court in Victorian Granites (P) Ltd. Vs. P. Rama Rao and others 5. In the said case, the state action approving the assignment of a lease granted to an individual on expiry thereof in favour of a private Company, at the request of the outgoing lessee, without any publicity and without inviting objections from others was explicitly disapproved by this Court by holding that such a transfer was opposed to the common good and the constitutional objective of securing socioeconomic justice which was described as the arch of the Constitution. Material resources of the community must be distributed to sub-serve the common good, this Court had opined.

22. Similarly, in Akhil Bhartiya Upbhokta Congress vs. State of Madhya Pradesh and others this Court held that:

“48. Part IV contains “directive principles of State policy” which are fundamental in the governance of the country and it is the duty of the State to apply these principles in making laws. Article 39 specifies certain principles of policy which are required to be followed by the State.

Clause (b) thereof provides that the State shall, in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. Parliament and legislatures of the States have enacted several laws and the Governments have, from time to time, framed policies so that the national wealth and natural resources are equitably distributed among all sections of people so that have-nots of the society can aspire to compete with haves.”

23. In Akhil Bhartiya (supra), this Court examined the legality of the action of the Madhya Pradesh Government to allot twenty acres of land to an Institution on the basis of application made by the Trust. This Court held that the distribution of State largesse allocation of land, grant of permit, licence etc. should always be in a fair and equitable manner. It was held that the elements of favouritism or nepotism shall not influence the exercise of discretion by the decision maker. Observing that every action of the public authority should be guided by public interest, free from arbitrariness, in para (65), it was held as under:-

“65. What needs to be emphasised is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well-defined policy, which shall be made known to the public by publication in the Official Gazette and other recognised modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy.

The distribution of largesse like allotment of land, grant of quota, permit licence, etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State.

(Underlining is ours)

24. In Sachidanand Pandey and another vs. State of West Bengal and others 7, this Court after referring to some of the available precedents, laid the following principles:- “40. On a consideration of the relevant cases cited at the Bar the following propositions may be taken as well established: State-owned or public-owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule.

There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism.”

(Underlining is ours)

25. After Akhil Bhartiya (supra) and Sachidanand Pandey (supra), in Centre for Public Interest Litigation and others v. Union of India and others 8, it was held as under:-

“89. In conclusion, we hold that the State is the legal owner of the natural resources as a trustee of the people and although it is empowered to distribute the same, the process of distribution must be guided by the constitutional principles including the doctrine of equality and larger public good.”

26. In Natural Resources Allocation, in Re, Special Reference No. 1 of 2012 9, while considering the allocation of 2G Spectrum, this Court observed that as natural resources are public goods, the ‘Doctrine of Equality’ which emerges from the concepts of justice and fairness must guide the State in determining the actual mechanism for distribution of natural resources. Any further detailed reference to the opinion rendered is being avoided as the principles evolved are in furtherance of what has been had been laid down earlier, as noticed above.

27. Coming back to the issue in hand a brief look at the contentions advanced may be appropriate at this stage. The State of Uttar Pradesh has sought to defeat the writ petition by contending that the same being under Article 32 of the Constitution of India a direct infringement of the fundamental rights of the petitioner must be established which is nowhere apparent even on a close scrutiny. The writ petition, therefore, is not maintainable. Alternatively, it has been argued that infringement of the equality clause under Article 14 of the Constitution of India is a far cry as there is an intelligible differentia to justify a separate and exclusive treatment to former Chief Ministers who form a class of their own.

28. While it is true that Article 32 of the Constitution is to be invoked for enforcement of the fundamental rights of a citizen or a non citizen, as may be, and there must be a violation or infringement thereof we have moved away from the theory of infringement of the fundamental rights of an individual citizen or non citizen to one of infringement of rights of a class. In fact, the above transformation is the foundation of what had developed as an independent and innovative stream of jurisprudence called “Public Interest Litigation” or class action. Though evolved much earlier, a Solemn affirmation of the aforesaid principle is to be found in paragraph 48 of the report in Vineet Narain (supra) which would be eminently worthy of recapitulation and, therefore, is extracted below:

“48. In view of the common perception shared by everyone including the Government of India and the Independent Review Committee (IRC) of the need for insulation of the CBI from extraneous influence of any kind, it is imperative that some action is urgently taken to prevent the continuance of this situation with a view to ensure proper implementation of the rule of law. This is the need of equality guaranteed in the Constitution. The right to equality in a situation like this is that of the Indian polity and not merely of a few individuals. The powers conferred on this Court by the Constitution are ample to remedy this defect and to ensure enforcement of the concept of equality.”

(Underlining is ours)

29. Along with the aforesaid shift in the judicial thinking there has been an equally important shift from the classical test (classification test) for the purpose of enquiry with regard to infringement of the equality clause under Article 14 of the Constitution of India to, what may be termed, a more dynamic test of arbitrariness. The shift which depicts two different dimensions of a challenge on the anvil of Article 14 is best demonstrated by a comparative reading of the judgments of this Court in the case of Budhan Choudhry and others vs. State 22 of Bihar 10, and E.P. Royappa vs. State of Tamil Nadu and another .

30. In Budhan Choudhry (supra), the classical test based on a reasonable classification to give legitimacy to an act of differential treatment was expounded in the following terms: “……It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely,

(i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and,

(ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.”

31. The more dynamic version came two decades later in the case of E.P. Royappa (supra) wherein Bhagwati, J. expanded the scope of Article 14 of the Constitution of India in the following terms:

“85…….From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.

They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.”

32. The evolution of the dynamic facet of Article 14 of the Constitution of India was carried forward in numerous pronouncements of this Court of which reference must be made, illustratively, to Ramana Dayaram Shetty vs. International Airport Authority of India and others 12; Sharma Transport vs. Govt. of A.P. and others 13; Kumari Shrilekha Vidyarthi and others vs. State of U.P. and others 14; State of Punjab and another vs. Brijeshwar Singh Chahal and another 15.

33. Paragraph 23 and 35 of Kumari Shrilekha (supra) may be extracted with profit only to notice the absolute clarity in carrying forward the principle laid down by Hon. Bhagwati J., in Royappa (supra). “23. Thus, in a case like the present, if it is shown that the impugned State action is arbitrary and, therefore, violative of Article 14 of the Constitution, there can be no impediment in striking down the impugned act irrespective of the question whether an additional right, contractual or statutory, if any, is also available to the aggrieved persons. …………

35. It is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the mind.”

34. The “final” culmination is in Shayara Bano vs. Union of India and others 16 where two members of the Bench (Hon’ble R.F. Nariman and Uday Umesh Lalit, JJ.) wrote as follows:

“101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14.

The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.”

35. The above view received support of a third member of the Constitution Bench (Hon’ble Kurian Joseph, J.)

36. In the light of the above views the allocation of government bungalows to constitutional functionaries enumerated in Section 4(3) of the 1981 Act after such functionaries demit public office(s) would be clearly subject to judicial review on the touchstone of Article 14 of the Constitution of India. This is particularly so as such bungalows constitute public property which by itself is scarce and meant for use of current holders of public offices. The above is manifested by the institution of Section 4-A in the 1981 Act by the Amendment Act of 1997 (Act 8 of 1997). The questions relating to allocation of such property, therefore, undoubtedly, are questions of public character and, therefore, the same would be amenable for being adjudicated on the touchstone of reasonable classification as well as arbitrariness.

37. The present petitioner, as already noticed in the opening paragraphs of this judgment, had earlier approached this Court under Article 32 of the Constitution challenging the validity of the 1997 Rules. Not only the said writ petition was entertained but the 1997 Rules were, in fact, struck down. In doing so, this Court had, inter alia, considered the validity of the 1997 Rules in the light of Article 14 of the Constitution of India.

The insertion of Section 4(3) by the 2016 Amendment as a substantive provision of the statute when the 1997 Rules to the same effect were declared invalid by the Court would require the curing of the invalidity found by this Court in the matter of allotment of government accommodation to former Chief Ministers. The defect found earlier persists. The impugned legislation, therefore, can very well be construed to be an attempt to overreach the judgment of this Court in Lok Prahari (supra).

38. Natural resources, public lands and the public goods like government bungalows/official residence are public property that belongs to the people of the country. The ‘Doctrine of Equality’ which emerges from the concepts of justice, fairness must guide the State in the distribution/allocation of the same. The Chief Minister, once he/she demits the office, is at par with the common citizen, though by virtue of the office held, he/she may be entitled to security and other protocols. But allotment of government bungalow, to be occupied during his/her lifetime, would not be guided by the constitutional principle of equality.

39. Undoubtedly, Section 4(3) of the 1981 Act would have the effect of creating a separate class of citizens for conferment 28 of benefits by way of distribution of public property on the basis of the previous public office held by them. Once such persons demit the public office earlier held by them there is nothing to distinguish them from the common man. The public office held by them becomes a matter of history and, therefore, cannot form the basis of a reasonable classification to categorize previous holders of public office as a special category of persons entitled to the benefit of special privileges.

The test of reasonable classification, therefore, has to fail. Not only that the legislation i.e. Section 4(3) of the 1981 Act recognizing former holders of public office as a special class of citizens, viewed in the aforesaid context, would appear to be arbitrary and discriminatory thereby violating the equality clause. It is a legislative exercise based on irrelevant and legally unacceptable considerations, unsupported by any constitutional sanctity.

40. Consequently, we hold that Section 4(3) of the 1981 Act cannot pass the test of Article 14 of the Constitution of India and is, therefore, liable to be struck down. We, therefore, hold that the aforesaid Section 4(3) of the Uttar Pradesh Ministers (Salaries, Allowances and Miscellaneous Provisions) Act, 1981 is ultra vires the Constitution of India as it transgresses the equality clause under Article 14. The writ petition in question, therefore, is allowed.

……………………..J. (RANJAN GOGOI)

……………………..J. (R. BANUMATHI)

NEW DELHI

MAY 07, 2018.

___________________________________

1 (2016) 8 SCC 389

2 (1997) 1 SCC 444

3 (1998) 1 SCC 226

4 AIR 1993 SC 1267

5 (1996) 10 SCC 665

6 (2011) 5 SCC 29

7 (1987) 2 SCC 295

8 (2012) 3 SCC 1

9 (2012) 10 SCC 1

10 AIR 1955 SC 191

11 (1974) 4 SCC 3

12 (1979) 3 SCC 489

13 (2002) 2 SCC 188

14 (1991) 1 SCC 212

15 (2016) 6 SCC 1

16 (2017) 9 SCC 1

Punjabrao Vs DR. D. P. Meshram and others[ALL SC 1964 OCTOBER]

KEYWORDS:- RELIGIOUS CONVERSION-Scheduled Castes-

supreme court of india 1

AIR 1965 SC 1179 : (1965) 1 SCR 849

(SUPREME COURT OF INDIA)

Punjabrao Appellant
Versus
DR. D. P. Meshram and others Respondent

(Before : P. B. Gajendragadkar, C.J.I., K. N. Wanchoo, M. Hidayatullah, Raghubar Dayal And J. R. Mudholkar, JJ.)

Civil Appeal No. 562 of 1964, Decided on : 26-10-1964.

ACTS:-(Scheduled Castes) Order, 1950

Hindu Law—Religion—Conversion to another religion—Proof of—Subsequent conduct of the person concerned is relevant in determining the conversion.

Counsel for the Parties:

MR. M. C. Setalvad, Senior Advocate (M/s. N. I. Belekar, H. D. Awade and A. G. Ratnaparkhi, Advocates with him), for Appellant

MR. N. C. Chatterjee, Senior Advocate, (M/s. V. S. Sawhney, S. S. Khanduja, S. K. Manchanda and Ganpat Rai, Advocates, with him), for Respondent No. 1.

Judgment

Mudholkar, JThe question which arises for consideration in this appeal by special leave from the judgment of the Bombay High Court is whether respondent No. 1 DR. D. P. Meshram was entitled to be a candidate for election to the Maharashtra Legislative Assembly from constituency No. 190 of Nagpur III a constituency reserved for candidates from scheduled castes.

2. The appellant and respondents 1 to 4 were candidates duly nominated for election to the Assembly from the aforesaid constituency. The poll was taken on February 27, 1962 and respondent No. 1 who had polled the highest number of votes was declared elected. The appellant thereupon preferred an election petition before the Election Commission; the main allegations in which were (a) that respondent No. 1 having embarced Buddhism on March 17, 1957 had ceased to be a member of a Scheduled Caste within the meaning of the Constitution (Scheduled Castes) Order, 1950 and was thus disentitled from being a candidate for the particular seat and (b) that respondent No. 1 was guilty of several corrupt practices. The Tribunal held that the corrupt practices alleged against respondent No. 1 were not established it, however, came to the conclusion that respondent No. 1 had embraced Buddhism as alleged by the appellant and was, therefore, not eligible for being a candidate for election from the reserved constituency. Upon this ground the Tribunal set aside the election of respondent No. 1. It may be mentioned that the appellant had made a further prayer to the effect that he should be declared elected to the seat; but this prayer was not granted by the Tribunal on the ground that he was not the only other candidate for election and, therefore, it cannot be said how the votes which respondent No. 1 had secured would have been distributed among the remaining candidates. Aggrieved by the decision of the Tribunal respondent No. 1 preferred an appeal before the High Court of Bombay. The only question which was urged before the High Court was regarding the alleged conversion of respondent No. 1 to Buddhism. On that question the High Court reversed the finding of the Tribunal and held that the fact had not been established by evidence. The High Court, therefore, upheld the election of respondent No. 1.

3. In support of his contention that respondent. No. 1 was converted to Buddhism on March 17, 1957 the appellant had adduced evidence of P.W. 9 Ramratan Janorkar, P.W. 2 Akant Mate, P.W. 5 Devaji Bhagat and P.W. 10 Wasudeo Dongre. Ramratan who claims to be a Buddha has said that he presided, over a meeting held at Lashkari bagh, Nagpur, two or three days after the Holi festival of the year 1957 at which a mass conversion of persons belonging to Scheduled Castes to Buddhism took place. He named ten persons who, according to him had been converted at that meeting, one of them being respondent No. 1. Amongst others named by him were P.W. 2 Akant Mate, P. W. 5 Devaji Bhagat and P.W. 10 Wasudeo Dongre. These three persons have corroborated the evidence of Ramratan. We have been taken through the evidence of these witnesses and though there may be some contradictions of minor points on the whole their evidence is consistent and has a ring of truth in it. Moreover, the Tribunal which heard and saw the witnesses depose has believed in their veracity. The High Court has, however, not chosen to accept their evidence mainly on the ground that these witnesses belong to a party which is opposed to respondent No. 1 and his party. It is not disputed before us that these witnesses as well as respondent No. 1 were members of the Republican Party of India founded by the late DR. ambedkar and that some time after his death them was rift in the party as a result of which two groups were farmed. The leader of one of these groups is Haridas Awade and that of the other is Khobragade:Respondent No. 1 belongs to the group headed by Khobargade while the appellant and the witnesses belong to the other group.

4. We agree with the High Court that we should not lose sight of this fact. In our opinion, however, there are good grounds for accepting the evidence.

5. In the first place there is the fact, which is admitted by respondent No. 1 himself, that a mass conversion of a very large number of persons belonging to the Scheduled Castes to Buddhism took place at Nagpur on October 14, 1956 at a meeting which was presided over by DR. Ambedkar. What took place at that meeting is set out in Ex. 66 which gives an account of the proceedings. It says that about 5 lakhs of persons attended the meeting. At that meeting DR. ambedkar was present along with Rev. Mahesthavir Chandramani who is a Bhikku. The Bhikku made DR. Ambedkar and Mrs. Ambedkar recite the three refuges (Thrisathi) and five precepts in Pali, after which both of them garlanded the idol of Lord Buddha which had been installed in the pandal where DR. and Mrs. Ambedkar, the Bhikku and other prominent people were sitting. DR. and Mrs. Ambedkar then took 22 vows which apparently he had himself prepared. Thereafter the mass ordination took place at which those who wished to be converted recited the three refuges three times. This event had attracted attention in throughout the country and was given wide publicity by the press which was well represented at the meeting Respondent No. 1 has admitted that he was a member of DR. Ambedkar’s party at that time and though he could not attend the conversion ceremony he had not dissociated himself from it. According to him the reason why he did not attend the ceremony was that he was then busy with making arrangements at the water works for the supply of water to the lakhs of people, most of whom had come from the neighbouring villages to attend the ceremony. It is in the evidence of witnesses that at least three lakhs of persons belonging to the Scheduled Castes were converted to Buddhism at that meeting and that the work of conversion went on even after October 14, 1956 for quite some time. Another factor to be borne in mind is that prominent persons belonging to the Scheduled Castes were converted to Buddhism and it would be highly improbable that respondent no. 1 who was a prominent member of the Scheduled Caste in Nagpur and a follower of DR. ambedkar would have remained aloof from the movement started by DR. Ambedkar. The main object of DR. Ambedkar was to secure for the members of the Scheduled Castes an honourable place in society and he felt that the various disabilities placed upon members of these castes were due to the fact that in Hindu religion, to which they belonged they had been accorded the lowest rank in society with the result that they had come to be regarded as untouchables. Undoubtedly, the caste system has virtually come to be regarded as as an essential feature of Hindu society and, therefore, DR. Ambedkar felt that the only was open to members belonging to the lowest group was to sever their connection completely from such a society. He found that Buddhism, the way or path of Peace, not only offered solace to the spirit but also social equality to all its members. DR. Ambedkar was the unquestioned leader of the Scheduled Castes, at any rate in Maharashtra. It would, therefore, not be unreasonable to infer that those who had accepted his leadership and those who in addition held prominent places amongst people belonging to the Scheduled Castes should follow DR. Ambedkar and renouncing Hinduism, embrace like him, Buddhism. If this probability is borne in mind the evidence of the witnesses who have deposed to the fact of the actual conversion of respondent No. 1 to Buddhism would become more easily acceptable.

6. That, however, is not all. Corroboration of this evidence was sought to be supplied by the appellant from the conduct of respondent No. 1 subsequent to his conversion. For this purpose he has relied upon three matters, one is the signing of a declaration by respondent No. 1 along with some other persons to the effect that he had embraced Buddhism and that he therefore, ceased to be any longer a member of the Scheduled Castes; the second is a wedding invitation subscribed to amongst others, by respondent No. 1 on which the picture of Lord Buddha is inscribed:and the third is the conversion of a Shiva temple situate near the appellant’s house to a Buddha temple.

7. The declaration is Ex. 42 and is dated July 5, 1957. It is to the following effect:

To whomsoever it may concern:

We the following signatories, do hereby affirm that we embraced Buddha Religion on 17-3l957 and no longer since remain Harijans”.

Then follow the names of ten persons, including P.W. 2 Akant Mate, P.W. 5 Devaji Bhagat and P.W. 10 Dongre. Each of them has signed therein against his name. The reason why this declaration came into existence is, according to the appellant, the following:

8. Elections had taken place to the Nagpur Corporation and a meeting was held on July 5, 1957 for election of six additional members. One of the Corporators. MR. Udhoji, raised a point of order to the effect that no member of the Scheduled Castes having been elected to the Corporation a person belonging to the Scheduled Castes was required to be selected under the provisions of the Nagpur Municipal Corporation Act. Respondent No. 1 was one of the persons who had already been elected to the Corporation and was present at the meeting. He, however, did not contest the statement of MR. Udhoji to the effect that no person belonging to the Scheduled Castes had been elected. Apparently, the point of order was disallowed and selection of six members, none of whom belonged to the Scheduled Castes, took place. Immediately thereafter the declaration referred to above was signed by ten persons, including respondent No. 1 who had all been elected as members of the Municipal Corporation at the corporation election. This was filed along with the writ petition presented before the High Court in which the selection made at the meeting of July 5, was sought to be quashed on the ground that no person belonging to a Scheduled Caste had been selected. Respondent No. 1 admits that he did sign this declaration but in his written statement the reason given by him is that he did so under political pressure. In his evidence, however, he has given a different explanation. This is what he has said:

“Akant Mate came there with some writing and told us that it was the directive of the Scheduled Castes Federation that members elected on its tickets should sign it. …I do not know how he got that directive from the Federation, and from whom he got it. The writing was in English and I signed upon it. Akant Mate told me that I should sign on the document, he would go and get signatures of other Corporators and give it in the Corporation office. I could not myself read the English typewritten material. Akant Mate told me that the President of the meeting gave the ruling on the information by the Comissioner that I and Mate were members of the Scheduled Caste and that if this were not so, we would be able to get one more member and, therefore, I should sign on the document. My consent was not taken for filing the declaration in the High Court. I was not a party to the proceedings in the High Court, in connection with which the declaration was taken.”

What he has said is, in substance, that he was duped by Akant Mate. There is thus a variation between his pleading and the proof adduced and in the circumstances we will be justified in rejecting his explanation. Once the explanation is rejected the declaration must be taken into account as a piece of corroboration of the fact that he had ceased to be Hindu as he had been converted to Buddhism.

9. Respondent No. 1 doesnot deny that the wedding invitation placed on record by the appellants bears his name as one of the hosts. The invitation pertains to the wedding of his daughters Lalita and Pushpa Lata and their respective bridegrooms were Sirish and Yashwant Rao. At the top of the invitation are the usual words “Subh Lagna” (auspicious wedding). Then there is a picture of Lord Buddha followed by the inscription “May victory and prosperity be yours – Obeisances to Buddha”. It is well known that in Hindu weddings the invitations issued in an Indian language picture of the Kuladaivata is generally printed and the blessings of the kuladaivata are invoked. Had respondent No. 1 considered himself to be a Hindu he would have followed the usual practice. No doubt, sophisticated people, though still belonging to Hindu religion, have discarded the practice of printing the picture of the family deity on wedding invitations and of invoking the blessings of the deity Respondent No. 1 does not suggest that he belongs to that class. Indeed, if that were so, there would have been no occasion to print the picture of Lord Buddha and seek his blessings. In this invitation the picture of the Kuladaivata was substituted by that of Lord Buddha. This is more consistent with respondent No. 1 having become a Buddhist than with his remaining a Hindu.

10. According to respondent No. 1 he did not known till after the Sakshyagandh (engagement) was over that either of the bridegrooms was a Buddhist. He says that a week before the marriages someone from the side of the bridegrooms met him and told him that the weddings had to be performed according to the Buddhist ritual and if he was not agreeable the engagements would be broken off. It was then that he first thought that the bridegrooms were Buddhists. However, he did not think it proper to break off the engagements. Now, if he were still a Hindu belonging to the Scheduled Castes it is unlikely that he would have reconciled him self with the idea of giving his daughters in marriage to non-hindus, more particularly when the bridegrooms’ side insisted on following the Buddhist ritual. He has, no doubt, tried to give an explanation for this curious conduct by saying that he treated Lord Buddha as the “11th (sic) incarnation” and that is why he had Lord Buddha’s picture printed on the wedding invitation. That explanation cannot be easily accepted.

11. As regards the third circumstance there is the evidence of Budhaji Godbole, P.W. 11, and Kisan Shende, P.W. 14, in addition to that of the appellant. According to them respondent. No. 1 converted the Shiva Temple in Gautamnagar into Buddha temple on June 6, 1959 and installed Lord Buddha’s image at a function over which he presided and at which DR. Y. B. ambedkar, President of Buddhist Society was present. Respondent No. 1 had admitted most of the facts, as pointed out by the High Court itself. The variation between the contentions of the parties is this. According to respondent No. 1 there was a Shiva Temple on a plot of land in Gaddigudam at NagpuR. While laying a new road in the year 1932 or so this plot was taken over by the Nazul authorities and another plot was given for the Shiva Temple in exchange. But according to him, no Shiva Temple was at all constructed or Shiva Ling installed therein. This is obviously untrue. He admits that this plot “was managed by a Panch Committee of which he was a membeR. For, without constructing a Shiva Temple on the plot there could have been nothing to manage by the Panch Committee. No doubt, he says that while he was Chairman of that Committee in the year 1959 or 1960 it was decided to construct a Shiva temple thereon. But it is difficult to believe that the people of the locality would have waited for 28 years for taking the decision. He admits that a temple dedicated to Lord Buddha was constructed thereon as alleged by the appellant and his witnesses. It seems clear that the decision of the committee to which he refers relater to the construction of this temple and not to a Shiva Temple which was already there. The evidence led on behalf of the appellant was to the effect that at the ceremony held on June 6, 1959 the idol of Lord Buddha was installed above the Shiva Linga, presumably meaning thereby that the Shiva Linga was overlaid with earth or bricks and on top of it the image of Lord Buddha was installed. Referring to the evidence of Shende the High Court has Observed:

“The witness however does not say that he saw the removal of the old image of Lord Shiva or the Ling and the Pinda which were already there. On the other hand, it is the case of Meshram that the Corporation had already given another plot to which the Shiva Mandir had long before been shifted and since this plot was idle, he gave it for the installation of Buddha’s idol”.

The observation of the High Court underlined (here into’ ‘ ) by us is apparently based on a misreading of the evidence of respondent No. 1 and also ignores his plea on the point in his written statement. It is not his case that two plots were allotted for a Shiva Temple one of which was vacant. His case, as already, stated, was that the plot given in exchange for the old one was never utilised and not that two plots were given one of which was utilised. Again, the High Court has failed to appreciate properly the evidence of Buddhaji Godbole. What he has said is this:

“One house away from the house of respondent No. 1 is a plot of land on which then stood a Shiv Temple. This plot stood in the name of the respondent No. 1. In that temple was a Ling and Pind of Shiva…. From June 6, 1959 this temple has now become Buddha ….VihaR. On that day, the Ling and Pind were put underground and at that place was installed idol of God Buddha. The installation of the image of God Buddha was done by Bhaiyasaheb Ambedkar. It was respondent No. 1 who was the principal man in converting the Shiva temple into a Buddha Bihar.”

There is no suggestion in his cross-examination that this witness had no personal knowledge of what he had deposed to Since he has clearly spoken about the burial of the Shiva Linga and the installation of the image of Lord Buddha on top of it, he must be understood to mean that this was what happended in his presence and also in that of respondent No. 1. Incidentally, it may be stated that this witness is also a convert to Buddhism. A reference may also be made to the evidence of the other witness Kisan Shende. The relevant portion of his deposition is as follows:

“The respondent No. 1 was the President of the function. The idol of Buddlla was installed by Bhaiyyasaheb ambedkar on an ota which covered the old ling and pind representing God Shiva…..”

This part of the evidence of this witness has not been challenged in cross-examination. There is no reason why this evidence ought not to be accepted, particularly when some of the essential facts deposed to by the witnesses have been admitted by respondent No. 1 himself. If we accept this evidence then the only conclusion which can emerge is that respondent No. 1 had ceased to be a Hindu. For, however great the admiration or regard a Hindu may have for Lord Buddha, he would shudder at the idea of desecrating a Shiva Linga in this manner or even of converting what was once a Shiva temple into a Buddhist temple. In our opinion, this would be the strongest circumstances corroborating the evidence of eye-witnesses regarding the conversion of respondent No. 1 to Buddhism.

12. It is contended on behalf of respondent No. 1 that there is a register of persons who had been converted to Buddhism and that the first respondent’s name does not appear there it is true that. R.W. 5 Waman Godbole speaks of some register but his evidence clearly shows that the register is not regularly maintained nor are the signatures of persons who had been converted taken according to the dates of conversion. There is nothing to show that it was obligatory on every person who had been converted to sign in the registeR. Moreover, a signature in such a register would at best be only a piece of evidence of the fact of conversion and nothing more. Absence of a person’s signature in the register would not necessarily negative his being at all converted a Buddhism. Then it is said that only a Bhikku is entitled to convert non-Buddhists to Buddhism. There is abundant evidence on record that at the conversion ceremony held on October 14, 1956 DR. Ambedkar had told the new Buddhists that any one who had become a Buddhist could admit others to the fold of Buddhism. Apart from that we have been shown no authority to the effect that a person cannot become a Buddhist unless he is converted to Buddhism by a Bhikku. Buddism was in essence also a protest against orthodoxy and the power of the priesthood. It would, therefore, be strange to say that for a non Buddhist to become a Buddhist strict compliance with rituals is necessary. It is in evidence that at every conversion three vows had been repeated thrice. Five precepts had also to be repeated by those who offered themselves for conversion. This was exactly what was done by DR. Ambedkar, his wife and others at the mass meeting on October 14, 1956 and it is not suggested that what they did was inadequate and so they cannot be deemed to have embraced Buddhism from that date. It is, therefore, futile to say that others who went through the same procedure had not become Buddhists merely because no Bhikku had officiated at the function.

13. What cl. (3) of the Constitution (Scheduled Castes) Order, 1950 contemplates is that for a person to be treated as one belonging to a Scheduled Caste within the meaning of that order he must be one who professes either Hindu or Sikh religion. The High Court following its earlier decision in Narayan Waktu vs. Panjabrao, AIR 1958 Bom 296 has said that the meaning of the phrase “professes a religion” in the aforementioned provision is “ to enter publicly into a religious state” and that for this purpose a mere declaration by a person that he has ceased to belong to a particular religion and embraced another religion would not be sufficient. The meanings of the word “profess” have been given thus in Webster’s New World dictionary:

“to avow publicly to make an open declaration of …. to declare one’s belief in:as to profess Christ. To accept into a religious ordeR.” The meanings given in the Shorter Oxford Dictionary are more or less the same. It seems to us that the meaning” to declare one’s belief in:as to profess Christ” is one which we have to bear in mind while construing the aforesaid order because it is this which bears upon religious belief and consequently also upon a change in religious belief. It would thus follow that a declaration of one’s belief must necessarily mean a declaration in such a way that it would be known to those whom it may interest. Therefore, if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion he will be taken as professing the other religion. In the face of such an open declaration it would be idle to enquire further as to whether the conversion to another religion was efficacious. The word “profess” in the Presidential Order appears to have been used in the sense of an open declaration or practice by a person of the Hindu (or the Sikh) religion. Where, therefore, a person say , on the contrary that he has ceased to be a Hindu he cannot derive any benefit from that OrdeR.

14. Finally it is argued that the word Hindu is comprehensive enough to include a Buddhist and in this connection our attention is invited to Explanation 11 to cl. (2) of Art. 25 of the Constitution. Clause (1) of Art. 25 recognises, amongst other things, freedom to practise and, propagate religion. Sub-clause (b) of cl. (2) runs thus:.

“Nothing in this article shall affect the operation of any existing law or prevent the State from making any, law .

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(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.”

Explnation 11 read; thus:

“In sub-clause (b) of cluase (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.” )

The definition of Hindu is expanded for the special purposes of sub-cl. (b) of cl. (2) of Art. 25 and for no otheR. Paragraph 3 of the Constitution (Scheduled Castes) Order reads thus:

“Notwithstanding anything contained in paragraph 2, no person who profess a religion different from the Hindu or the Sikh religion shall be deemed to be a member of a Scheduled Caste”.

If it was intended that the word “Hindu” used in this paragraph should have a wide meaning similar to that in Explanation II just quoted there would have been no need to make a mention of the Sikh religion. From the fact that a special mention is made of the Sikh religion it would follow that the word “Hindu” is used in the narrower sense of the orthodox Hindu religion which recognises castes and contains injuctions based on caste distinctions.

15. For the foregoing reasons we are satisfied that respondent No. 1 had ceased to be a Hindu at the date of his nomination and that consequently he was ineligible to be a candidate for election from a constituency reserved for members of Scheduled Castes. In the circumstances the Tribunal was right in setting aside his election. Accordingly we allow the appeal, set aside the judgment of the High Court and restore that of the Tribunal Costs throughout will be borne by respondent No. 1.

Amarinder Singh Versus Special Committee, Punjab Vidhan Sabha and OTHERS[ ALL SC 2010 APRIL]

KEYWORDS:-Parliamentary Privilege-expulsion of the MLAs-

c

JT 2010 (4) SC 350 : (2010) 4 SCALE 354 : (2010) 6 SCC 113 : (2010) 4 SCR 1105

(SUPREME COURT OF INDIA)

Amarinder Singh Appellant
Versus
Special Committee, Punjab Vidhan Sabha and OTHERS Respondent

(Before : K. G. Balakrishnan, C.J.,R. V. Raveendran,P. Sathasivam ,J. M. Panchal and R. M. Lodha, JJ.)

Civil Appeal No. 6053 of 2008, T.C. (C) No. 1 of 2009 and W.P. (C) Nos. 442 and 443 of 2008; Decided On: 26-04-2010

Punjab Land Improvement Act, 1922—Sections 36 and 56—Punjab Apartment and Property Regulation Act, 1995—Section 5—Constitution of India, 1950—Articles 194(3), 190, 191, 105, 105(3) and 194—Constitution (Forty- fourth Amendment) Act, 1978—Section 26.

Counsel for the Parties:

Gopal Subramanium, ASG, K. Parasaran, Ashok H. Desai, Ravi Shankar Prasad, Shyam Diwan K. Parasaran, Uday Umesh Lalit, Sr. Advs., Jayshree Anand, AAG, Atul Nanda, Rameeza Hakeem, Abhijat P. Medh, Law Associates & Co., K.K. Mahalik, Nitu Kumari Sinha, Kuldip Singh Singh, Gaurav Agrawal, Ajay Pal, Aprajita Singh, Nikhil Jain, Aman Pal, Sukhda Pritam, Ardendu Mauli K. Prasad, Gorminder Singh, Anuradha Biundra, Menka Guruswamy, Charu Sangwan, Paruthi K. Goswamy, Chaman Lal Premi, Jai Shree Anand, Ajay Bansal, Aman Ahluwalia, Balaji Subramanian, Advs. for B.K. Prasad, Advs.

JUDGMENT

K.G. Balakrishnan, C.J—The appellant was the Chief Minister of the State of Punjab during the 12th term of the Punjab Vidhan Sabha. The appellant was duly elected as a member of the Punjab Vidhan Sabha for its 13th term.

2. The Punjab Vidhan Sabha on 10-9-2008 passed a resolution which directed the expulsion of the appellant for the remainder of the 13th term of the same Vidhan Sabha. This resolution was passed after considering a report submitted by a Special Committee of the Vidhan Sabha (Respondent No. 1) on 3-9-2008 which recorded findings that the appellant along with some other persons (petitioners in the connected matters) had engaged in criminal misconduct. The Special Committee had itself been constituted on 18-12- 2007 in pursuance of a resolution passed by the Vidhan Sabha. It had been given the task of inquiring into allegations of misconduct that related back to the appellant’s tenure as the Chief Minister of the State of Punjab during the 12th term of the Punjab Vidhan Sabha. More specifically, it was alleged that the appellant was responsible for the improper exemption of a vacant plot of land which was licensed to a particular private party (measuring 32.10 acres) from a pool of 187 acres of land that had been notified for acquisition by the Amritsar Land Improvement Trust on 5-12-2003. The Amritsar Land Improvement Trust is a statutory body which had notified the plan for acquisition in pursuance of a developmental scheme, as contemplated under Section 36 of the Punjab Land Improvement Act, 1922. Earlier, on 23-6-2003, a private party (M/s. Veer Colonizers) had applied for a licence under Section 5 of the Punjab Apartment and Property Regulation Act, 1995 to develop the above-mentioned plot of 32.10 acres which was situated in the proximity of the Amritsar-Jalandhar road. At the time of the colonizer’s application for a development licence, the said plot was not covered by any acquisition scheme, though it had been covered by two schemes in the past which had lapsed by then. After the notification of the scheme, the colonizer approached the concerned authorities, seeking an exemption from the proposed acquisition of land. Subsequently on 7-10-2005, the Amritsar Land Improvement Trust granted a No-objection certificate, thereby permitting the exemption of the said plot of 32.10 acres from the scheme for acquisition. This decision to exempt the said plot of 32.10 acres was notified by the State Government on 13-01-2006 under Section 56 of the Punjab Town Improvement Act. Since the appellant was serving as the Chief Minister of the State at the time, it was alleged that the decision to exempt the plot was an executive act that could be attributed to him.

3. However, some other private parties who owned plots in the pool of land that had been notified for acquisition by the Amritsar Land Improvement Trust on 5-12-2003, raised objections against the exemption referred to above. The gist of their objections is that the State Government had unduly favoured one private party by exempting the said plot of 32.10 acres from the scheme for acquisition. In fact the validity of the exemption was questioned in several cases instituted before the High Court of Punjab and Haryana, namely those of Major General Sukhdip Randhawa (Retd.) and Ors. v. State of Punjab CWP No. 16923 of 2006; Daljit Singh v. State of Punjab CWP No. 20266 of 2006; Sudarshan Kaur v. State of Punjab CWP No. 2929 of 2007 and Basant Colonisers & Builders (P) Ltd. v. State of Punjab CWP No. 7838 of 2008. All of these cases were pending before the High Court at the time of the hearings in the present case.

4. Following the elections held to re-constitute the Punjab Vidhan Sabha in February 2007, there was a transition in power in the State. The 13th Vidhan Sabha was constituted on 1-3-2007. The appellant who had served as the Chief Minister of the State during the 12th term of the Vidhan Sabha, became the leader of the opposition in the 13th term. In pursuance of a news report dated 22.3.2007, some members of the Legislative Assembly moved a privilege motion in respect of allegations of tampering in the proceedings of the 12th Vidhan Sabha (dated 1-3-2006). These allegations were in regard to a starred question relating to the grant of exemption of 32.10 acres of land. On 5-4-2007 the notice of motion was referred to the Privileges Committee of the House by the Speaker. Thereafter, questions were raised on the floor of the house which cast aspersions on the appellant’s past conduct. On 18-12-2007, the report of the Privileges Committee was tabled before the House. The incumbent Chief Minister brought a motion which specifically questioned the appellant’s role in the exemption of the 32.10 acre plot from the acquisition scheme notified by the Amritsar Improvement Trust. Following this motion, the Speaker of the House approved the constitution of a Special Committee to inquire into the alleged misconduct. The terms of reference for the Special Committee required it to examine as to what were the reasons for exempting the said plot measuring 32.10 acres of land. As part of this inquiry, the Special Committee had to examine whether any rule/norms had been violated on account of this exemption and whether it had caused monetary losses to the State exchequer. The stated objective was to identify those responsible for such losses.

5. The Special Committee submitted its report on 3-9-2008 which was presented to the House on 5-9-2008. The report included findings that Captain Amarinder Singh (former Chief Minister, appellant in Civil Appeal No. 6053 of 2008), Choudhary Jagjit Singh [former Local Bodies Minister, petitioner in Writ Petition (Civ.) No. 443 of 2008], Late Sh. Raghunath Sahai Puri [former Housing Minister, since deceased] and Sh. Jugal Kishore Sharma [former Chairman of Amritsar Land Improvement Trust, petitioner in Writ Petition (Civ.) No. 442 of 2008) had been involved in ‘corruption, conspiracy to cause wrongful loss and abuse of public office’ in relation to the exemption of land from the above-mentioned acquisition scheme. It must be noted that out of the four individuals named in the report, only Captain Amarinder Singh was elected as a member of the 13th Punjab Vidhan Sabha. After considering these findings, the Punjab Vidhan Sabha passed the impugned resolution on 10-9-2008 which is extracted below:

After accepting the report submitted by the Special Committee appointed by this House, this august House recommends the following action:

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(i) Captain Amarinder Singh is expelled for the remaining term of the 13th Punjab Vidhan Sabha. The Secretary of the Vidhan Sabha is instructed to approach the Election Commission of India to have his seat declared as vacant.

(ii) The recommendations of the Privilege Committee have been tabled in the House on 18.12.2007 and they be forwarded to Chief Secretary, Punjab Government with the under mentioned instructions:

Because this House does not possess any facility to investigate and find out where the accused have stashed away the ill gotten wealth or how it has been distributed, it is essential to have custodial interrogation. Director Vigilance Department, Punjab which deals with corruption cases and is an arm of the Punjab Government be instructed to file a FIR keeping in mind the various instructions of the CrPC.

The vigilance department is to investigate and submit its report to the Speaker of this House within two months from today.

6. In pursuance of the said resolution, the secretariat of the Punjab Vidhan Sabha issued a notification on 10-9-2008 which declared that Captain Amarinder Singh had been expelled from the membership of the 13th Vidhan Sabha for the remaining term of the State Legislature, (that is 3.5 years). It was also declared that his assembly constituency seat (76-Patiala Town) was rendered vacant, thereby setting aside his election to the same. Aggrieved by the findings of the report submitted by the Special Committee on 3-9-2008, the appellant moved the High Court of Punjab and Haryana (C.W.P. 11548 of 2008). Following the impugned resolution on 10-9-2008, the said petition was withdrawn and C.W.P. 16216 of 2008 was instituted before the High Court to challenge the Special Committee’s report as well as the impugned resolution dated 10.9.2008. On 15-9-2008, a division bench of the High Court issued an order directing that the case be heard on merits on 1-12-2008. The High Court did not grant a stay on the operation of the impugned resolution, but granted protection to Captain Amarinder Singh from custodial interrogation and directed further listing on 1-12-2008. Dissatisfied with the High Court’s order, the appellant approached this Court by way of a petition seeking special leave to appeal. The appellant contended that the High Court ought to have stayed the report dated 3.9.2008 and the Resolution and Notification dated 10.9.2008. He apprehended that a fresh election would be conducted in the intervening period, thereby compromising his rights.

7. A division bench of this Court directed notice on 26-9- 2008 and referred the case for hearing by a three judge bench. On 3-10-2008, a three judge bench (B.N. Agarwal, G.S. Singhvi and Aftab Alam, JJ.] granted leave in the special leave petition (C.A. No. 6053/2008). It allowed Transfer Petition (C) No. 1087/2008 for transfer of CWP No. 16216/2008 from the Punjab and Haryana High Court (the transferred case is T.C. (C) No. 1 of 2009,) and directed the same to be heard with the Civil Appeal along with W.P. (C) No. 442/2008 and W.P. (C) No. 443/ 2008. The three judge bench did not grant a stay on the operation of the impugned resolution which had directed the expulsion of the appellant from the Vidhan Sabha. However, relief was granted to the extent that even though the appellant could not participate in the legislative proceedings, his seat would not fall vacant until the adjudication of this case. A stay was also granted in respect of the Vidhan Sabha’s specific directions to the Punjab Vigilance Department, but it was clarified that the appellant and the petitioners could be investigated in accordance with law. Subsequently, the three judge bench found that the subject matter touched on substantial questions of law requiring the interpretation of Article 194(3) of the Constitution, thereby deeming it fit to refer these matters to a constitution bench by way of an order dated 11-2-2009.

OVERVIEW OF CONTENTIONS

8. The counsel appearing for the appellant and the petitioners have prayed that the impugned resolution as well as the report submitted by the Special Committee be invalidated in their entirety. Accordingly, the appellant has sought restoration of his membership for the remainder of the 13th term of the Punjab Vidhan Sabha. The main thrust of the appellant’s contentions is that the acts of constituting the Special Committee on 18-12-2007, the submission of its report on 3-9-2008 and the impugned resolution passed by the Assembly on 10-9-2008 cannot be defended as a proper exercise of legislative privileges under Article 194 of the Constitution. It was urged that the allegations of misconduct on part of the appellant and the petitioners were relatable to their executive actions which in no way disrupted or affected the legislative functions of the Punjab Vidhan Sabha. It was reasoned that legislative privileges are exercised to safeguard the integrity of legislative proceedings and the alleged misconduct did not threaten the same in any manner. Another contention was whether it was proper for the 13th Vidhan Sabha to exercise its privileges to inquire into acts that had occurred during the 12th term of the Vidhan Sabha. It was also pointed out that the alleged misconduct on the part of the appellant and the petitioners had already been questioned before the High Court of Punjab Haryana by private parties whose lands had not been exempted from the Amritsar Improvement Scheme. Thus, it was argued that it was improper for the legislature to act in respect of subject-matter which was pending adjudication, thereby violating the norm of not interfering in sub judice matters. It was further argued that even though legislative privileges are exercised to ensure the dignity and discipline of the House, the same cannot encroach into the judicial domain by recording a finding of guilt and recommending punitive action in respect of the alleged misconduct. To support this objection, it was urged that the appellant and the petitioners had not been given a fair opportunity to contest or meet the allegations against them and hence the proceedings of the Special Committee were violative of the principles of natural justice.

9. The respondents’ case is that the Punjab Vidhan Sabha had legitimately exercised its privileges to recommend punitive action in the present case, since the alleged misconduct on part of the appellant and the petitioners had brought disrepute to the House as a whole. It was reasoned that even though the power of expulsion for such misconduct has not been enumerated in Articles 190 and 191 of the Constitution [which prescribe the grounds for disqualification of MLAs] the legislature had a broad power to take punitive action for the breach of its privileges which includes the power to punish for its own contempt. It was submitted that the appellant and the petitioners had committed a breach of privilege as well as contempt of the house since they had previously suppressed efforts of the legislature to inquire into the alleged misconduct in relation to the Amritsar Improvement Scheme. Since legislative privileges have not been codified and are shaped by precedents, the counsel for the respondents have cited some English precedents in support of their contention that privileges can be exercised to punish mala fide acts which do not directly obstruct the proceedings of the House, but impede its dignity nevertheless.

10. In the course of the hearing on merits before this constitution bench, Shri K. Parasaran and Shri U.U. Lalit, Sr. Advs. appeared on behalf of the appellant. Thereafter, Shri Ashok Desai, Sr. Adv. appeared for the respondent whose submissions were supplemented by Shri Ravi Shankar Prasad, Sr. Adv., while Shri Gopal Subramanium, (Additional Solicitor General, now Solicitor General) represented the views of the Union government.

11. In light of the facts of this case and the contentions outlined above, the following questions arise for consideration:

I. Whether the alleged misconduct on part of the appellant and the petitioners warranted the exercise of legislative privileges under Article 194(3) of the Constitution?

II. Whether it was proper for the Punjab Vidhan Sabha to take up, as a matter of breach of privilege, an incident that occurred during its previous term?

III. Whether the impugned acts of the Punjab Vidhan Sabha violated the norms that should be respected in relation to sub judice matters?

Re: Question I.

12. Learned Counsel appearing for the respondents have submitted that it was proper for the Punjab Vidhan Sabha to constitute the Special Committee and pass the impugned resolution which recommended the expulsion of the appellant. The core of their argument is that the misconduct on part of the appellant had brought disrepute to the Vidhan Sabha and it was justifiable to exercise legislative privileges for mitigating the same. The respondents have adopted a two-pronged line of reasoning. Firstly, they have asserted that the alleged misconduct on part of the appellant amounted to a breach of privilege as well as contempt of the House. Secondly, they have contended that since the ‘powers, privileges and immunities’ conferred on State Legislatures by Article 194(3) of the Constitution have not been codified, it would not be proper to place limitations on their exercise. The implicit rationale is that legislative assemblies should retain flexibility in the exercise of their privileges and the power to punish for contempt, so that they can tackle new and unforeseen impediments to their reputation and functioning. The respondents’ submissions have dwelt at length with the idea that the legislature’s power to punish for its own contempt cannot be trammeled since it is different from the remedial objective of exercising privileges to maintain the dignity and discipline of the house. The respondents have extensively relied on the constitution bench decision in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, (2007) 3 SCC 184 where this Court had upheld the Lok Sabha’s power to expel its members in view of misconduct in the nature of accepting bribes to ask specified questions on the floor of the House. However, the majority opinions of this Court had also clarified that the exercise of parliamentary privileges in such cases was open to judicial scrutiny.

13. As outlined earlier, the appellant has questioned the impugned resolution since it recommends punitive action in respect of his misconduct which was allegedly committed in his capacity as the Chief Minister of the State of Punjab. It was submitted that the alleged irregularity in exempting a plot of land from an acquisition scheme was entirely relatable to the discharge of executive functions. The act of exempting land did not in any way obstruct the functions of the Punjab Vidhan Sabha. It was urged that even though the exercise of legislative privileges and the concomitant power to punish for contempt have not been codified, they cannot be construed as unlimited powers since that could lead to their indiscriminate and disproportionate use. The counsel appearing for the appellant and the petitioners have also submitted that when the Special Committee was constituted on 18-12-2007 it did not bear the nomenclature of a privileges committee and at the time it was not apparent to the appellant and the petitioners that they were facing such an action. However, the respondent submits that the incumbent Chief Ministers’ motion brought on 18-12-2007 was in the nature of a privileges motion. Irrespective of the contested facts, it will be proper for us to view this controversy from the prism of legislative privileges. Mr. Gopal Subramanium drew our attention to the two main considerations that should guide the adjudication of this case, namely those of ‘history’ and ‘necessity’. Considerations of history require us to examine whether there are any applicable precedents for the exercise of legislative privileges in similar circumstances. The consideration of necessity entails that the scope of privileges should be identified on the basis of what is necessary to prevent or punish obstructions to legislative functioning.

14. Before addressing these contentions, we can take a bird’s eye view of the law on legislative privileges. The State Legislatures are conferred with ‘powers, privileges and immunities’ by way of Article 194 of the Constitution which reads:

194. Powers, privileges, etc., of the Houses of Legislatures and of the members and committees thereof.- (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State.

(2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings.

(3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of Section 26 of the Constitution (Forty- fourth Amendment) Act, 1978.

(4) The provisions of Clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature.

15. The powers and privileges conferred on the State Legislatures are akin to those conferred on the Union Parliament by Article 105. Therefore, the principles and precedents relatable to the exercise of parliamentary privileges are relevant for deciding this case. Both Articles 105 and 194 explicitly refer to the freedom of speech in the House and the freedom to publish proceedings without exposure to liability. However, other legislative privileges have not been enumerated. Article 105(3) and 194(3) are openly worded and prescribe that the powers, privileges and immunities available to the legislature are those which were available at the time of the enactment of the Constitution (Forty-Fourth) Amendment Act, 1978. Subhash C. Kashyap has elaborated on the Indian position with these words [In Parliamentary Procedure – The Law, Privileges, Practice and Precedents, Vol. 2 (New Delhi, Universal Law Publishing Co. Pvt. Ltd., 2000) at p. 1555]:

As regards other privileges, Article 105(3) as originally enacted provided that that in other respects, the powers, privileges and immunities of Parliament, its committees and members, until defined by Parliament by law, shall be the same as those of the House of Commons of the United Kingdom as on the coming into the force of the Constitution on 26 Jan. 1950. This clause was however, amended in 1978, to provide that in respect of privileges other than those specified in the Constitution, the powers, privileges and immunities of each House of Parliament, its members and Committees shall be such as may from time to time be defined by Parliament by law and until so defined shall be those of that House, its members and Committees immediately before coming into the force of Section 15 of the Constitution (44th Amendment), 1978 (w.e.f. 20 June 1978). This amendment has in fact made only verbal changes by omitting all references to the British House of Commons but the substance remains the same. In other words, each House, its Committees and members in actual practice, shall continue to enjoy the powers, privileges and immunities (other than those specified in the Constitution) that were available to the British House of Commons as on 26 Jan. 1950.

16. Since the scope of ‘powers, privileges and immunities’ available under Article 105(3) and 194(3) has not been codified by way of statute till date, it is open for us to consider the principles and precedents relatable to the British House of Commons. In Raja Ram Pal’s case (supra.) C.K. Thakkar, J. in his concurring opinion had described Parliamentary Privileges as those fundamental rights which the House and its Members possess so as to enable them to carry out their functions effectively and efficiently. It was observed:

519. In its creative sense, in England the House did not sit down to build its edifice of the powers, privileges and immunities of Parliament. The evolution of the English parliamentary institution has thus historical development. It is the story of conflict between the Crown’s absolute prerogatives and the Common’s insistence for powers, privileges and immunities; struggle between high handed actions of monarchs and people’s claim of democratic means and methods. Parliamentary privileges are the rights which the Houses of Parliament and Members posses so as to enable them to carry out their functions effectively and efficiently. Some of the parliamentary privileges thus preceded Parliament itself. They are, therefore, rightly described by Sir Erskine May as “fundamental rights” of the Houses as against the prerogatives of the Crown, the authority of ordinary courts of law and the special rights of the House of Lords.

17. The evolution of legislative privileges can be traced back to medieval England when there was an ongoing tussle for power between the monarch and the Parliament. In most cases, privileges were exercised to protect the members of parliament from undue pressure or influence by the monarch among others. Conversely, with the gradual strengthening of parliament there were also some excesses in the name of legislative privileges. However, the ideas governing the relationship between the executive and the legislature have undergone a sea change since then. In modern parliamentary democracies, it is the legislature which consists of the people’s representatives who are expected to monitor executive functions. This is achieved by embodying the idea of ‘collective responsibility’ which entails that those who wield executive power are accountable to the legislature. However, legislative privileges serve a distinct purpose. They are exercised to safeguard the integrity of legislative functions against obstructions which could be caused by members of the House as well as non-members. Needless to say, it is conceivable that in some instances persons holding executive office could potentially cause obstructions to legislative functions. Hence, there is a need to stress on the operative principles that can be relied on to test the validity of the exercise of legislative privileges in the present case. In his widely cited work, Sir Erskine May (1950) has answered the question ‘What constitutes privilege?’ in the following manner [See: Erskine May, Parliamentary Practice, 16th edn. (London: Butterworths, 1957) in ‘Chapter III: General View of the Privilege of Parliament’ at p. 42]:

Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by members of each House individually, without which they could not discharge their functions and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land is, to a certain extent an exemption from the ordinary law.

The privileges of individual members of the House of Lords may be distinguished from, the privileges of individual members of the House of Commons; both again have common privileges as members of the Parliament; and the Lords have special privileges as peers, distinct from those which they have as members of a House co-ordinate with the House of Commons. [Stubbs, Constitutional History, iii (4th edn.) p.504]

The particular privileges of the Commons have been defined as:

The sum of the fundamental rights of the House and of its individual Members as against the prerogatives of the Crown, the authority of the ordinary courts of law and the special rights of the House of Lords.

Distinction between function and Privilege proper-

It is more convenient to reserve the term ‘privilege’ to certain fundamental rights of each House which are generally accepted as necessary for the exercise of its constitutional functions.

Ancillary nature of Privilege – A necessary means to fulfillment of functions- The distinctive mark of a privilege is its ancillary character. The privileges of Parliament are rights which are “absolutely necessary for the due execution of its powers.

In Halsbury’s Laws of England, 4th edn. (Reissue Vol. 34, at p. 553) it has been stated:

Claims to rights and privileges- The House of Lords and the House of Commons claim for their Members, both individually and collectively, certain rights and privileges which are necessary to each House, without which they could not discharge their functions and which exceed those possessed by other bodies and individuals. In 1705, the House of Lords resolved that neither House had power to create any new privilege and when this was communicated to the Commons, that House agreed….

18. It would be instructive to refer to the following extracts from a lecture on Parliamentary Privileges by Viscount Kilmer – The Lord High Chancellor of Great Britain, [Delivered on May 4, 1959 at the University of London]:

The first question which springs to the mind is, ‘What precisely is Parliamentary Privilege?’- and its question which is not altogether easy to answer. A privilege is essentially a private advantage in law enjoyed by a person or a class of persons or an association which is not enjoyed by others. Looked at from this aspect, privilege consists of that bundle of advantages which members of both Houses enjoy or have at one time enjoyed to a greater extent than their fellow citizens: freedom to access to Westminster, freedom from arrest or process, freedom from liability in the courts for what they say or do in Parliament. From another point of view, Parliamentary Privilege is the special dignity and authority and enjoyed by each House in its corporate capacity such as its right to control its own proceedings and to punish both members and strangers for contempt. I think these are really two sides of the coin. Any Parliament, it is to function properly, must have some privileges which will ensure freedom (to a greater or lesser degree) from outside interference. If the business of Parliament is of supreme importance, then nobody else must be allowed to impede it, whether by throwing fireworks from the gallery or bringing actions against members for what they say in debate.

A close parallel is provided by the powers of the superior courts to punish for contempt. If you try to interfere with the administration of justice either by throwing tomatoes at the judge or by intimidating a witness you will be liable to be proceeded against for contempt. Once again, a body whose functions are of paramount importance can be seen making certain that outside interference is reduced to a minimum.

19. In Australia, the scope of Parliamentary Privileges was enunciated in the 76th Report of the Senate Committee of Privileges, wherein it was observed:

The word “privilege”, modern usage, connotes a special right accorded to a select group which sets that group apart from all other persons. The Macquarie Dictionary’s primary definition of privilege is as follows: “A right of immunity enjoyed by a person or persons beyond the common advantage of others. The privileges of Parliament are immunities conferred in order to ensure that the duties of members as representatives of their constituents may be carried out without fear of intimidation or punishment, and without improper impediment. These immunities, established as part of the common law and recognized in statutes such as the Bill of Rights of 1688, are limited in number and effect. They relate only to those matters which have common to be recognized as crucial to the operation of a fearless Parliament on behalf of the people. As pointed out in a submission by the Department of the Senate to the Joint Select Committee on Parliamentary Privilege, a privilege of Parliament is more properly called an immunity from the operation of certain laws, which are otherwise unduly restrictive of the proper performance of the duties of members of Parliament.

20. In a Canadian case reported as New Brunswick Broadcasting Co. v. Nova Scotia (1993) 100 DLR (4th) 212 Lamer, C.J. had cited the following extract from an academic commentary [See: Joseph Maingot, Parliamentary Privilege (Toronto: Butterworths, 1982) at p. 12]:

Parliamentary privilege is the necessary immunity that the law provides for members of Parliament and for members of the legislatures of each of the ten provinces and two territories, in order for these legislators to do their legislative work. It is also necessary immunity that the law provides for anyone while taking part in a proceeding in Parliament or in a legislature. Finally, it is the authority and power of each House of Parliament and of each legislature to enforce that immunity.

Parliamentary privilege and immunity with respect to the exercise of that privilege are founded upon necessity. Parliamentary privilege and the breadth of individual privileges encompassed by that term are accorded to members of the House of Parliament and the legislative assemblies because they are judges necessary to the discharge of their legislative function.

The contents and extent of parliamentary privileges have evolved with reference to their necessity. In Precedents of Proceedings in the House of Commons, Vol. I, 3rd Ed. (London: T Payne, 1796), John Hatsell defined at p. 1 the privileges of parliament as including those rights which are absolutely necessary for the due execution of its power”. It is important to note that, in this context, the justification of necessity is applied in a general sense. That is, general categories of privilege are deemed necessary to the discharge of the Assembly’s function. Each specific instance of the exercise of a general privilege needs to be shown to be necessary.

21. In the past, this Court has adopted a similar conception of legislative privileges to interpret Article 194(3). For example in Re Special Reference 1 of 1964;, AIR 1965 SC 745 (also known as the U.P. Assembly case) Gajendragadkar C.J. had held, at Para. 33:

…The Constitution-makers must have thought that the legislatures will take some time to make laws in respect of their powers, privileges and immunities. During the interval, it was clearly necessary to confer on them the necessary powers, privileges and immunities. There can be little doubt that the powers, privileges and immunities which are contemplated by Clause (3), are incidental powers, privileges and immunities which every legislature must possess in order that it may be able to function effectively, and that explains the purpose of the latter part of Clause (3).

22. In State of Karnataka v. Union of India, (1977) 4 SCC 608 a seven judge bench of this Court construed the powers contained in Article 194(3) as those ‘necessary for the conduct of the business of the House’, at Para. 57:

57. It is evident, from the Chapter in which Article 194 occurs as well as the heading and its marginal note that the ‘powers’ meant to be indicated here are not independent. They are powers which depend upon and are necessary for the conduct of the business of each House. They cannot also be expanded into those of the House of Commons for all purposes… We need not travel beyond the words of Article 194 itself, read with other provisions of the Constitution, to clearly read such a conclusion.

23. Y.K. Sabharwal, C.J. (majority opinion) in Para. 471 of Raja Ram Pal’s case (supra.) has quoted from Parliamentary Privilege- First Report (Lord Nicholas) which describes Parliamentary Privilege as:

Parliamentary privilege consists of the rights and immunities which the two Houses of Parliament and their Members and officers possess to enable them to carry out their parliamentary functions effectively. Without this protection Members would be handicapped in performing their parliamentary duties, and the authority of Parliament itself in confronting the executive and as a forum for expressing the anxieties of citizens would be correspondingly diminished.

In U.P. Assembly case (supra.), this Court had also drawn a distinction between the exercise of legislative privileges and that of ordinary legislative functions in the following manner:

There is a distinction between privilege and function, though it is not always apparent. On the whole, however, it is more convenient to reserve the term ‘privilege’ to certain fundamental rights of each House which are generally accepted as necessary for the exercise of its constitutional functions. The distinctive mark of a privilege is its ancillary character. The privileges of Parliament are rights which are absolutely necessary for the due execution of its powers. They are enjoyed by individual Members, because the House cannot perform its functions without unimpeded use of the services of its Members; and by each House for the protection of its Members and the vindication of its own authority and dignity.

In Hatsell’s Collection of Cases of Privileges of Parliament (1776), Parliamentary privileges have been defined as those rights which are ‘absolutely necessary for the due execution of its powers’. A similar definition has also been quoted in Sir Erskine May’s Parliamentary Practice (1950) and is also found in Ramanatha Aiyar, Advanced Law Lexicon, 2nd edn. Vol. 3 (New Delhi: Wadhwa & Co. Nagpur, 1997) which defines privilege as:

The distinctive mark of a Parliamentary Privilege is its ancillary character. They are rights which a sovereign legislature must possess for the due execution of its powers. Some of them are enjoyed by individual members of the House.

24. The observations cited above make it amply clear that the exercise of legislative privileges is not an end in itself. They are supposed to be exercised in order to ensure that legislative functions can be exercised effectively, without undue obstructions. These functions include the right of members to speak and vote on the floor of the house as well as the proceedings of various legislative committees. In this respect, privileges can be exercised to protect persons engaged as administrative employees as well. The important consideration for scrutinising the exercise of legislative privileges is whether the same was necessary to safeguard the integrity of legislative functions. We are also expected to look to precedents involving the British House of Commons. The most elaborate list of Parliamentary Privileges exercised by the British House of Commons has been compiled by Pritiosh Roy in his work Parliamentary Privilege in India which has been quoted in Raja Ram Pal’s case (supra.) at Paragraphs 94-97 and has been reproduced below:

1) Privilege of freedom of speech, comprising the right of exclusive control by the House over its own proceedings. It is a composite privilege which includes:

(i) the power to initiate and consider matters of legislation or discussion in such order as it pleases;

(ii) the privilege of freedom in debate proper- absolute immunity of members for statements made in debate, not actionable at law;

(iii) the power to discipline its own members;

(iv) the power to regulate its own procedure- the right of the House to be the sole judge of the lawfulness of its own proceedings;

(v) the right to exclude the jurisdiction of the Courts;

(vi) the right to exclude strangers;

(vii) the right to ensure privacy of debate;

(ix) the right to control or prohibit publication of its debates and proceedings;

2) Privilege of freedom from arrest or molestation the claim of the Commons to freedom of members from arrest in civil action or suits during the time of the Parliament and during the period when a member journeys to or returns from the Parliament. This privilege includes:

(i) exemption of a member from attending Court as a witness- service of a civil or criminal process within the precincts of the House is a breach of privilege.

(ii) a member cannot be admitted as bail;

(iii) exemption of a member from jury service

(iv) no such privilege claimed in respect of criminal offences or statutory detention;

(v) right of the House to be informed of arrest of members on criminal charges;

(vi) extension of the privilege to witnesses summoned to attend before the House or its committees, and to officers in immediate attendance upon the service of the House.

3) Privilege of freedom of access to the sovereign through the Speaker.

4) Privilege of the House of receiving a favourable construction of the proceedings of the House from the sovereign.

5) Power of the House to inflict punishment for contempt on members or strangers- a power akin to the powers possessed by the superior courts of justice to punish for contempt.

It includes:

(i) the power to commit a person to prison, to the custody of its own officers or to one of the State prisons, [the keystone of parliamentary privilege] the commitment being for any period not beyond the date of the prorogation of the House;

(ii) the incompetence of the courts of justice to admit a person committed by the House to bail;

(iii) when the person is committed by the House upon a general or unspeaking warrant which does not state the particular facts constituting the contempt the incompetence of the courts of justice to inquire into the nature of contempt;

(iv) the power of the House to arrest an offender through its own officers or through the aid and power of the civil government;

(v) the power of the officers of the House to break open outer doors to effect the execution of the warrant of arrest;

(vi) the power of the House to administer reprimand or admonition to an offender;

(vii) the power of the House to secure the attendance, whether in custody or not, of persons whose conduct is impugned on a matter of privilege;

(viii) the power of the House to direct the Attorney General to prosecute an offender where the breach of privilege is also an offence at law and the extent of the power of the House to inflict punishment is not considered adequate to the offence;

(ix) the power of the House to punish a member by (a) suspension from the service of the House, or (b) expulsion, rendering his seat vacant.

6) Privilege of the House to provide for its own due constitution or composition. It includes:

(i) the power of the House to order the issue of new writs to fill vacancies that arise in the Commons in the course of a Parliament;

(ii) the power of the House in respect of the trial of controverted elections of members of the Commons;

(iii) the power of the House to determine the qualifications of its members to sit and vote in the House in cases of doubt- it includes the power of expulsion of a member. A major portion of this ancient privilege of the House of Commons has been eroded by the statute.

7) The power of the House to compel the attendance of witnesses and the production of papers.

25. However, we are only obliged to follow British precedents to the extent that they are compatible with our constitutional scheme. This is because the legislatures in India do not have a wide power of self-composition in a manner akin to the British House of Commons. This position was clarified in Raja Ram Pal’s case, (Supra.) at Para. 87:

87. In U.P. Assembly Case (Special Reference No. 1 of 1964) it was settled by this Court that a broad claim that all the powers enjoyed by the House of Commons at the commencement of the Constitution of India vest in an Indian Legislature cannot be accepted in its entirety because there are some powers which cannot obviously be so claimed. In this context, the following observations appearing at SCR p.448 of the judgment should suffice: (AIR 1965 SC 745, p.764, para. 45)

Take the privilege of freedom of access which is exercised by the House of Commons as a body and through its Speaker ‘to have at all times the right to petition, counsel, or remonstrate with their Sovereign through their chosen representative and have a favourable construction placed on his words was justly regarded by the Commons as fundamental privilege’ [Sir Erskine May’s Parliamentary Practice, (16th Edn.), p.86]. It is hardly necessary to point out that the House cannot claim this privilege. Similarly, the privilege to pass acts of attainder and impeachments cannot be claimed by the House. The House of Commons also claims the privilege in regard to its own Constitution. This privilege is expressed in three ways, first by the order of new writs to fill vacancies that arise in the Commons in the course of a Parliament; secondly, by the trial of controverted elections; and thirdly, by determining the qualifications of its members in cases of doubt (May’s Parliamentary Practice, p.175). This privilege again, admittedly, cannot be claimed by the House. Therefore, it would not be correct to say that all powers and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House.

26. Hence, it is a well-settled position that all the privileges claimed by the House of Commons cannot be automatically claimed by legislative bodies in India. With respect to the examples noted above, it is quite apparent that vacancies arising in the legislative bodies (Union Parliament and State Legislative Assemblies) are duly filled up through the election procedures contemplated by the Constitution that have been fleshed out in detail through the Representation of People Act, 1951. Similarly disputes relating to elections are heard by the competent courts and disqualifications are effected as per the grounds enumerated in the Constitution. While Articles 101 and 102 enumerate the grounds for vacation of seats and the disqualification of Members of Parliament (MPs) respectively, Article 190 and Article 191 deal with these aspects in relation to Members of State Legislatures. The manner of effecting disqualifications has also been laid down in relation to the various grounds for the same.

27. In Raja Ram Pal’s case (supra.) the majority had decided that the parliamentary privileges available under Article 105(3) could be legitimately exercised to expel members for grounds other than those prescribed for disqualification of members under Article 102. This Court had upheld the validity of the proceedings of a privileges committee of the Lok Sabha which had inquired into the improper acts of some MPs and recommended their expulsion. In that case, the misconduct was in the nature of accepting bribes in return for asking specified questions on the floor of the house. One of the expelled MPs had been reported for accepting gratification in lieu of improper allocation of funds under the Member of Parliament Local Area Development Scheme (MPLADS). The acceptance of bribes had been recorded on camera by some journalists and later on the video-footage was treated as conclusive evidence of guilt by the privileges committee. In the present case, the respondents have cited this decision in support of their contention that it was proper for the Punjab Vidhan Sabha to have exercised its’ power to punish for contempt [derived from Article 194(3) of the Constitution] in order to recommend the expulsion of the appellant. It was argued that the Vidhan Sabha was empowered to expel members on grounds other than those prescribed for disqualification of members under Article 191. However, an important consideration in that case was that the misconduct which was the ground for the MPs’ expulsion had a direct connection with their legislative functions, namely those of asking questions at the behest of vested interests and the improper allocation of funds under the MPLADS scheme respectively. With respect to the allegations against the appellant in the present case, it is quite difficult to see how the improper exemption of a particular plot of land from an acquisition scheme caused an obstruction to the conduct of legislative business. If it is indeed felt that the allegations of misconduct on part of the former Chief Minister had brought disrepute to the entire House, then the proper course is to pursue criminal investigation and prosecution before the appropriate judicial forum.

28. At this juncture, we must reiterate the principles which guide judicial scrutiny of the exercise of legislative privileges (including the power to punish for contempt of the House). In Raja Ram Pal’s case, Y.K. Sabharwal, C.J. had framed the following guidelines, at Para. 431:

431. Summary of the Principles relating to Parameters of Judicial Review in relation to exercise of Parliamentary Provisions

We may summarize the principles that can be culled out from the above discussion. They are:

a. Parliament is a co-ordinate organ and its views do deserve deference even while its acts are amenable to judicial scrutiny;

b. Constitutional system of government abhors absolutism and it being the cardinal principle of our Constitution that no one, howsoever lofty, can claim to be the sole judge of the power given under the Constitution, mere co-ordinate constitutional status, or even the status of an exalted constitutional functionaries, does not disentitle this Court from exercising its jurisdiction of judicial review of action which part-take the character of judicial or quasi-judicial decision;

c. The expediency and necessity of exercise of power or privilege by the legislature are for the determination of the legislative authority and not for determination by the courts;

d. The judicial review of the manner of exercise of power of contempt or privilege does not mean the said jurisdiction is being usurped by the judicature;

e. Having regard to the importance of the functions discharged by the legislature under the Constitution and the majesty and grandeur of its task, there would always be an initial presumption that the powers, privileges etc have been regularly and reasonably exercised, not violating the law or the Constitutional provisions, this presumption being a rebuttable one;

f. The fact that Parliament is an august body of co-ordinate constitutional position does not mean that there can be no judicially manageable standards to review exercise of its power;

g. While the area of powers, privileges and immunities of the legislature being exceptional and extraordinary its acts, particularly relating to exercise thereof, ought not to be tested on the traditional parameters of judicial review in the same manner as an ordinary administrative action would be tested, and the Court would confine itself to the acknowledged parameters of judicial review and within the judicially discoverable and manageable standards, there is no foundation to the plea that a legislative body cannot be attributed jurisdictional error;

h. The Judicature is not prevented from scrutinizing the validity of the action of the legislature trespassing on the fundamental rights conferred on the citizens;

i. The broad contention that the exercise of privileges by legislatures cannot be decided against the touchstone of fundamental rights or the constitutional provisions is not correct;

j. If a citizen, whether a non-member or a member of the Legislature, complains that his fundamental rights under Article 20 or 21 had been contravened, it is the duty of this Court to examine the merits of the said contention, especially when the impugned action entails civil consequences;

k. There is no basis to claim of bar of exclusive cognizance or absolute immunity to the Parliamentary proceedings in Article 105(3) of the Constitution;

l. The manner of enforcement of privilege by the legislature can result in judicial scrutiny, though subject to the restrictions contained in the other Constitutional provisions, for example Article 122 or 212;

m. Articles 122(1) and Article 212(1) displace the broad doctrine of exclusive cognizance of the legislature in England of exclusive cognizance of internal proceedings of the House rendering irrelevant the case law that emanated from courts in that jurisdiction; inasmuch as the same has no application to the system of governance provided by Constitution of India

n. Article 122(1) and Article 212(1) prohibit the validity of any proceedings in legislature from being called in question in a court merely on the ground of irregularity of procedure;

o. The truth or correctness of the material will not be questioned by the court nor will it go into the adequacy of the material or substitute its opinion for that of the legislature;

p. Ordinarily, the legislature, as a body, cannot be accused of having acted for an extraneous purpose or being actuated by caprice or mala fide intention, and the court will not lightly presume abuse or misuse, giving allowance for the fact that the legislature is the best judge of such matters, but if in a given case, the allegations to such effect are made, the Court may examine the validity of the said contention, the onus on the person alleging being extremely heavy

q. The rules which the legislature has to make for regulating its procedure and the conduct of its business have to be subject to the provisions of the Constitution;

r. Mere availability of the Rules of Procedure and Conduct of Business, as made by the legislature in exercise of enabling powers under the Constitution, is never a guarantee that they have been duly followed;

s. The proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny;

t. Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action;

u. An ouster clause attaching finality to a determination does ordinarily oust the power of the court to review the decision but not on grounds of lack of jurisdiction or it being a nullity for some reason such as gross illegality, irrationality, violation of constitutional mandate, mala fides, non- compliance with rules of natural justice and perversity;

29. Hence, we are empowered to scrutinize the exercise of legislative privileges which admittedly include the power of a legislative chamber to punish for contempt of itself. Articles 122(1) and 212(1) make it amply clear that Courts cannot inquire into matters related to irregularities in observance of procedures before the legislature. However, we can examine whether proceedings conducted under Article 105(3) or 194(3) are ‘tainted on account of substantive or gross illegality or unconstitutionality’. The facts before us do not merely touch on a procedural irregularity. The appellant has contended that the Punjab Vidhan Sabha has committed a substantive jurisdictional error by exercising powers under Article 194(3) to inquire into the appellant’s actions which were taken in his executive capacity. As explained earlier, the relevant fact here is not only that the allegations of wrongdoing pertain to an executive act, but the fact that there is no conceivable obstruction caused to the conduct of routine legislative business.

30. Before commenting further on the merits of the contentions, we must draw attention to the specific guidelines in Raja Ram Pal’s case (supra.) that advocate due deference to the actions of the legislature in the ordinary course of events. We do recognize that the threshold for exercising judicial review in a case such as the present one is indeed very high and we must begin with a presumption that the legislatures’ actions were valid. However, the counsel for the appellant and the petitioners have produced sufficient materials to demonstrate that it was not necessary for the Punjab Vidhan Sabha to have exercised its powers under Article 194(3) to recommend and then notify the expulsion of the appellant. We fail to see how the alleged misconduct on part of the appellant had the effect of obstructing the ordinary legislative functions of the Vidhan Sabha. In its role as a deliberative body which is expected to monitor executive functions in line with the idea of ‘collective responsibility’, the Punjab Vidhan Sabha was of course free to inquire into the alleged misconduct and examine its implications. However, the act of recommending the appellant’s expulsion through the impugned resolution cannot be justified as a proper exercise of ‘powers, privileges and immunities’ conferred by Article 194(3).

31. In their submissions, the counsel for the respondents have cited some English precedents in an attempt to draw an analogy with the facts in the present case. The intended purpose of doing so is to demonstrate the exercise of legislative privileges in the past to punish conduct that took place outside the ‘four walls of the house’ and yet diminished the reputation of the legislature. We have already explained that all British precedents cannot be automatically followed in the Indian context. One reason for this is that Indian legislatures are controlled by a written constitution and hence they do not have an absolute power of self-composition, unlike the British House of Commons which is controlled by an unwritten constitution. Another reason is that some of the English precedents involving the exercise of privileges were clear instances of overbreadth. Far from being good law as contended by the respondents, these old English cases have been subsequently described by authors as examples of arbitrary exercise of privileges. In fact Para. 217 of Raja Ram Pal’s case (supra.) conveys this position in the following words:

217. Constitutional History of England by Professor F.W. Maitland (1st Edn. 1908, reprinted 1941), based on his lectures, is divided chronologically. In the last and most contemporary ‘Period V’ titled “Sketch of Public Law at the Present Day (1887-88)”, he deals with the House of Commons in Part III. It has been opined by him that the earlier exercise of privileges from the fourteenth to the eighteenth century have fallen into utter desuetude an may furnish only an example of an arbitrary and sometimes oppressive exercise of uncanalised power by the House. After mentioning the membership and the qualification of the voters as also principles and the mode of election and dealing with the power of the voters as also principles and the mode of election and dealing with the power of determining disputed elections by the House of Commons, one of the facets of the privilege of the House of Commons to provide for and regulate its own constitution, in the context of the vacation of seats in the House by incurring disqualifications, he refers in sub-para (6) to the power of expulsion. His words may be extracted:

The House has an undoubted power of expelling a Member, and the law does not attempt to define the cases in which it may be used. If the House voted the expulsion of A.B. on the ground that he was ugly, no court could give A.B. any relief. Probably it would not be exercised now- a days, unless the Member was charged with crime or with some very gross misbehaviour falling short of crime, and in general the House would wait until he had been tried and convicted by a court of law. In 1856, a Member who had been indicted for fraud and who had fled from the accusation was expelled.

32. The respondents have quoted Para. 215 of Raja Ram Pal’s case (supra.) to contend that even in cases of criminal offences such as forgery, perjury, breach of trust, corruption in public offices etc. wherein there may be no direct obstruction to legislative business, members have been expelled from the British House of Commons through the exercise of Parliamentary privileges. In fact, Para. 215 paraphrases a passage from Sir Erskine May’s prominent work which touches on the power of the House to expel its’ members. However, the exact passage dealing with the power of expulsion, [See Erskine May, Parliamentary Practice, 15th Edn. (1950)] states that at the time of writing (i.e. 1950) the power of expulsion was reserved only for cases involving conviction for grave misdemeanors. A reading of the original passage makes it amply clear that Sir Erskine May was referring to grounds on which members had been expelled in the past. However, citing the same does not amount to their endorsement and the respondent’s reliance on the said passage is quite misplaced. The original passage is reproduced below:

EXPULSION BY THE COMMONS

The purpose of expulsion is not so much disciplinary as remedial, not so much to punish Members as to rid the House of persons who are unfit for membership. It may justly be regarded as an example of the House’s power to regulate its own constitution. But it is more convenient to treat it among the methods of punishment at the disposal of the House. At the present time expulsion is practically reserved for the punishment of persons convicted of grave misdemeanors, whose seats are not, as in the case of Members convicted of treason or felony, automatically vacated.

Members have been expelled as being in open rebellion; as having been guilty of forgery; of perjury; of frauds and breaches of trust; of misappropriation of public money; of conspiracy to defraud; of fraudulent conversion of property; of corruption in the administration of justice, or in public offices, or in the execution of their Members of the House; of conduct unbecoming the character of an officer and a gentlemen; and contempt, libels and other offences committed against the House itself.

33. At this juncture, we must clarify that if a sitting member of a legislature in India is found guilty of committing a statutory offence, then disqualification can be a consequence as per the scheme contemplated in the Representation of People Act, 1951. The respondents have also referred to the Table produced in Para. 582 of Raja Ram Pal’s case (supra.) which surveys the exercise of privileges by the British House of Commons between 1667 and 1954. They have drawn our attention to some of the instances to contend that members were indeed expelled for acts that took place outside the ‘four walls of the house’ and had no direct bearing on legislative functions. However as we have explained above, it is not appropriate to mechanically rely on all of these precedents. If we must look to English precedents for guidance, we find a far more appropriate sample set in the table of cases from the period 1945-1965 which forms an Appendix to the Report of the Select Committee on Parliamentary Privilege (1967) in the United Kingdom. The same has been reproduced below:

RECENT CASES OF PRIVILEGE (1945-65)

DATE

Subject of Complaint

Report and Recommendation of the Committee of Privileges

Action by the House

March 1945 H.C. 63 (1944-45)

Offer of a bribe (Henderson’s Case)

Offer was a conditional donation- no question of bribery arose and no breach of privilege

Tacit acceptance

October 1945 H.C. 31(1945-46)

Service of summons within the precincts on a sitting day (Verney’s Case)

Breach of privilege but particular circumstances did not require further action

Tacit Acceptance

July 1946 H.C. 181(1945-46)

Poster designed to intimidate Members (Mrs. Tennant’s Case)

Breach of privilege but too petty in SCALE to justify, further action by House

Tacit Acceptance

December 1946 H.C. 36(1946- 47)

Assault on Member (Piratin’s Case)

Member and assailant both guilty of contempt

Resolution: Member guilty of gross contempt, assailant guilty of contempt (10 February 1947)

March 1947 H.C. 118 (1946-47)

Improper pressure on Member by Trade Union (W.J. Brown’s Case)

Nothing improper and no breach of privilege

Resolution: Inconsistent with duty of Member to enter contractual agreements. limiting his independence in Parliament

April 1947 H.C. 138 (1946-47)

Newspaper suggested Members accepted payments for information (Gary Allighan’s Case)

1) Grave contempt by newspaper and. by Mr. Allighan

2) Disclosure of information from party meetings for payment constitutes breach of privilege

(1) Member expelled; Editor summoned to Bar and reprimanded (30 October, 1947)

(2) This view not accepted by House

July 1947 H.C. 137 (1946- 47)

Refusal by witnesses before Committee of Privileges to answer certain questions (Cas’e of Schofield and Dobson)

House to take such steps as may seem necessary left

Witnesses ordered to attend at Bar of House and examined by Mr. Speaker: Resolution: Refusal to answer constitutes contempt “ (12 August 1947)

August 1947 H.C. 142 (1946-47)

Personal statement by Member about acceptance of payments by newspaper referred to Committee (Walkden’s Case)

Member guilty of privilege

Member. ordered to be reprimanded for dishonourable conduct (House did riot confirm the view of the Committee . on breach of privilege) 30 October and 10 December 1947)”

March 1948 H.C.112 (1947-48)

Broadcast reflecting on allegiance of Members (Colm Brogan’s Case)

Inconsistent with dignity of House to examine further

Tacit acceptance

July 1949 H.C. 261 (1948-49)

Misrepresentation by newspaper of Member’s speech (Case of “Daily Worker”)

Technical breach of privilege but no action called for

Tacit acceptance

March 1951 H.C. 149 (1950-51)

Broadcast commenting on future decision by House on privilege matter (B.B.C. case)

No contempt

Tacit acceptance

March 1951 H.C. 227 (1950-51)

Letter reflecting on integrity of Members (Clan Briton case)

Letters did not. reflect on Members in their capacity as such and therefore no breach of privilege

Tacit acceptance

June 1951 H.C. 227 (1950-51)

Disclosure by newspaper of evidence given to Estimates Committee(Case of Daily Telegraph)

An inquiry into the facts did not reveal any intention any intention to infringe privilege

Tacit Acceptance

June, 1951 H.C. 235 ‘ (1950-51)

Speech by Lady Mellor imputed partially to the Deputy Speaker (Lady Mellor’s Case)

Words constituted a breach of privilege but circumstances did not require further action by House

Tacit Acceptance

July 1951 H.C. 244 (1950-51)

Obstruction by police of Member driving to attend House and subsequent summons (John Lewis’s Case)

No breach of privilege

Tacit Acceptance

April 1953 H.C. 171 (1952-53)

Lady Member’s disrespect in “Sunday Express” article describing other Members (Mrs. Ford’s case)

Unauthorized reports of proceedings in House amount to breach of privilege; but normally House waives its privileges. Apologies having been made, no further action needed

Tacit acceptance

December 1953 H.C. 31(1953-54)

Reflection , on Members in newspaper article imputing motives in voting (Case of “Daily Worker”)

Breach of privilege; but matter not worthy of occupying further time of the House

Tacit Acceptance

March 1955 H.C. 112 (1954-55)

Deputy Assistant Chaplain General threatens a subordinate with a view to influencing proceedings in Parliament

No precedent for regarding it as breach of privilege; but matter for responsible Minister

Tacit Acceptance

November 1956 H.C. 27 (1956-57)

Molestation of Member by telephone (Editor of Sunday Graphic’s case)

Serious breach of privilege; but in view of humble apology, no further action needed

Tacit acceptance

November 1956 H.C. 38 (1956-57)

Imputation in newspaper article that Members were receiving “prodigious” supplementary petrol allowances (Case of “Sunday Express”)

Editor of “Sunday Express” guilty of serious contempt and should be reprimanded

Editor ordered to attend at Bar and apology made at Bar of House Resolution: He was guilty of serious contempt (24 January 1957)

December 1956 H.C. 39 (1956-57)

Offensive newspaper cartoon reflecting on conduct of Members (Case of “Evening News”)

Cartoon “constituted reflection on Members and contempt, but in view of withdrawal of cartoon from later editions and publication of unqualified apology, no further action needed

Tacit Acceptance

January 1957 H.C. 74 (1956- 57)

Broadcast and newspaper comment onmatter under consideration by Committee of Privileges (Case of B.B.C. and “Rom ford Recorder” newspaper)

No contempt by B.B.C. or by newspaper

Tacit acceptance

April-1957 H.C. 305 (1956-57)

Action by London Electricity Board in threatening to institute proceedings for libel respecting statement in letter by Member to Minister (Strauss Case)

Breach of privilege

Resolution: London Electricity Board had not commented any breach of privilege Division: Ayes 219; Noes 196 (8 July 1958)

July 1960 H.C. 284 (1959-60)

‘Letter containing threat to Member (Colin Jordan’s case)’

Breach of privilege; but no further action needed as offence had not been repeated

Tacit acceptance

March 1964 H.C. 247 (1963-64)

Reflection on allegiance of Members made outside House (Quintin Hogg’s Case)

No breach of privilege and no contempt of the House; no further action needed

Tacit acceptance

February 1965 H.C. 129 1964-65

Imputation against Member’s drunkenness (Duffy’s case)

Gross contempt of House and breach of privilege; ‘but no further action needed following letter from Member with drawing remarks

Tacit acceptance

May 1965 H.C. 228 (1964-65)

Letter threatening Members of House (case of anonymous threatening letters)

Breach of privilege and improper attempt to influence Members; in their parliamentary conduct; but dignity of House best maintained by taking no further action

Tacit acceptance

July 1965 H.C. 269 (1964-65)

Speech by Chancellor of the Exchequer outside House reflecting on Members (Callaghan’s case)

No contempt and no further action needed

Tacit acceptance

34. A perusal of the above-mentioned table reveals the following:

(i) The only cases in this Table where the House was of the view that a breach of privileges had taken place were those in which the questionable conduct bore a direct nexus to the functioning or the proceedings of the House or the functioning of a member within the House. Even in such cases no serious action followed, much less an action of expulsion. These were:

• Service of summons in the precincts of the House without permission of the House (Verney’s case 1945-46)

• Misrepresentation by a newspaper of the speech of a Member within the House (Walkden’s Case 1946-47)

• Speech by a Member imputing impartiality to the Deputy Speaker of the House

• Unauthorized reports of proceedings of the House (Mrs. Ford’s case 1952-53)

• Intimidation/molestation/threat of a Member in the House (Mrs. Tennant’s case 1945-46) and (Editor of “Sunday Graphic’s” case 1956-57) and (Colin Jordan’s case 1959-60)

(ii) The instances where the House was of the view that contempt of the House had taken place were those where there were direct obstructions and imputations against members, namely when:

• There was an assault on the Member in the House (Piratin’s case 1946-47)

• There was a refusal by a witness to answer questions before a Privileges Committee (Case of Schofield and Dobson 1946-47)

• There was an imputation by a newspaper that members were receiving unusually large petrol allowances (case of “Sunday Express” 1956-57)

• There was an imputation regarding a Member’s drunkenness (Duffy’s case 1964-65)

(iii) In the one instance where the Privileges Committee did indeed recommend the expulsion of a member (Gary Allighan, 1947) the House ultimately did not accept the same recommendation.

35. It would be safe to say that a breach of privilege by a member of the legislature can only be established when a member’s act is directly connected with or bears a proximity to his duties, role or functions as a legislator. This test of proximity should be the rule of thumb, while of course accounting for exceptional circumstances where a person who is both a legislator and a holder of executive office may commit a breach of privilege. It is our considered view that such a breach has not occurred in the present case.

36. Even if we turn to parliamentary practice in India, it is quite apparent that the expulsion of members should only be sustained if their actions have caused obstructions to legislative functions or are likely to cause the same. The following examples have been discussed in Raja Ram Pal’s case (supra.) at Paragraphs 301-317:

• One can refer to the chain of events leading up to the resignation of Mr. H.G. Mudgal from the Lok Sabha on 24-9-1951. Mr. H.G. Mudgal was charged with having engaged himself in ‘certain dealings with the Bombay Bullion Association which included canvassing support and making propaganda in Parliament on problems like option business, stamp duty etc. and receipt of financial or business advantages from the Bombay Bullion Association’ in the discharge of his duty in Parliament. Subsequently, a Committee appointed by Parliament to inquire into the said member’s activities found his conduct to be derogatory to the dignity of the House and inconsistent with the standard which Parliament was entitled to expect from its members. In pursuance of these findings, a motion for expulsion was brought before the House which prompted the member to submit his resignation. [See: Kaul and Shakdher, Practice and Procedure of Parliament, 5th edn. (New Delhi: Metropolitan Book Co. Pvt. Ltd. 2001) at p. 262] It is pertinent to note that the misconduct which triggered a recommendation for expulsion had a clear nexus with legislative functions.

• Another relevant instance is that of the expulsion of Mr. Subramanium Swamy from the Rajya Sabha. On 2-9-1976 the Rajya Sabha adopted a motion appointing a committee to investigate the conduct and activities of Mr. Swamy, within and outside the country, including alleged anti-India propaganda calculated to bring into disrepute Parliament and other democratic institutions of the country and generally behaving in a manner unworthy of a member. The Committee presented its report on 12-11-1976 recommending expulsion and on 15- 11-1976 the Rajya Sabha adopted a motion to expel the said member. [See: Subhash C. Kashyap, Parliamentary Procedure- Law Privileges, Practice & Precedents Vol. 2, (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2000) at p. 1657]

• We can also invite attention to the instance when Mrs. Indira Gandhi and two others were expelled from the Lok Sabha by way of a motion adopted on 19-12-1978. The background was that on 18-11-1977, a motion was adopted by the House referring to the Committee of privileges a question of breach of privilege and contempt of the House against Mrs. Gandhi and others regarding obstruction, intimidation, harassment and institution of false cases by Mrs. Gandhi and others against certain officials. The Committee of Privileges recorded a finding that Mrs. Indira Gandhi had committed a breach of privilege and contempt of the House by causing obstruction, intimidation, harassment and institution of false cases against the officers concerned who were collecting information for the purpose of an answer to a certain question that had been asked in the House. The nature of punitive action to follow was left to the wisdom of the House. On 19-12-1978, the House adopted a motion which recommended Mrs. Gandhi’s expulsion among other things. However, this expulsion was undone during the term of the Seventh Lok Sabha, wherein there was a substantive debate on whether the House had the power to expel its members in the exercise of privileges. At that point of time, the majority of the House had resolved that there was no power of expulsion in such circumstances. However, the position has since been clarified in Raja Ram Pal’s case (supra.) which has recognised the power of legislatures to expel their members, subject to the judicially prescribed guidelines. Nevertheless, what is relevant for the present case is that the initial recommendation for expulsion was triggered by conduct that bore a direct causal link to legislative functions.

• Another comparable instance was noted by S.C. Agarwal, J. in his dissenting opinion in P.V. Narasimha Rao v. State, (1998) 4 SCC 626 wherein it was observed:

25. It does not, however, constitute breach or contempt of the House if the offering of payment of bribe is related to the business other than that of the House. In 1974, the Lok Sabha considered the matter relating to offer or payment of bribe in the import licences case wherein it was alleged that a Member of Lok Sabha had taken bribe and forged signatures of the Members for furthering the cause of certain applicants. The question of privilege was disallowed since it was considered that the conduct of the Member, although improper, was not related to the business of the House. But at the same time it was held that as the allegation of bribery and forgery was very serious and unbecoming of a Member of Parliament, he could be held guilty of lowering the dignity of the House.

(See: Kaul and Shakdher at pp. 254, 255).

37. As outlined earlier, the respondents have also contended that the power of a legislature to punish for its own contempt should not be seen as incidental to its’ power of self-composition and that it should have a wider import than the remedial power of preventing obstructions to legislative functions. It will be useful to refer to the following extract from the respondents’ written submissions:

…Even if the House of Legislature has limited powers, such power is not only restricted to ex facie contempts, but even acts committed outside the House. It is open to the Assembly to use its power for protective purposes, and the acts that it can act upon are not only those that are committed in the House, but upon anything that lowers the dignity of the House. Thus, the petitioners’ submission that the House only has the power to remove obstructions during its proceedings cannot be accepted.

In pursuance of this line of reasoning, the respondents have argued that the appellant’s actions have lowered the dignity of the house and the same amounts to conduct unbecoming of a member of the House, even though such conduct had no bearing on legislative functions. It was urged that the underlying motive behind the expulsion was not merely that of punishment but also to remove a member who was seen as unfit to continue as a member of the legislature.

38. We are unable to agree with this line of reasoning presented on behalf of the respondents. Expressions such as ‘lowering the dignity of the house’, ‘conduct unbecoming of a member of the House’ and ‘unfitness of a member’ are openly-worded and abstract grounds which if recognised, will trigger the indiscriminate and disproportionate use of legislative privileges by incumbent majorities to target their political opponents as well as dissidents. The various grounds for disqualification of members of legislative assemblies (MLAs) have been enumerated in Articles 190 and 191 of the Constitution. For most circumstances, there is an elaborate machinery in place to decide questions pertaining to the disqualification of members and the vacancy of seats. However, it is for the purpose of tackling unforeseen and novel impediments to legislative functioning that the ‘powers, privileges and immunities’ contemplated by Article 194(3) of the Constitution have not been codified. In Raja Ram Pal’s case (supra.) the majority decision of this Court did recognise that the legislature’s power to punish for its contempt could be exercised to expel legislators for grounds other than those prescribed in the Constitution, but it was not the intention of this Court to prescribe an untrammeled power. By laying down a clear set of guidelines for judicial review over the exercise of parliamentary privileges, this Court had made its intentions quite clear. Accordingly, we are of the view that the power of a legislative chamber to punish for its own contempt should broadly coincide with the legislature’s interest in protecting the integrity of its functions. There can of course be some exceptional circumstances where acts that take place outside the ‘four walls of the house’ could have the effect of distorting, obstructing or diluting the integrity of legislative functions. An obvious example is that of legislators accepting bribes in lieu of asking questions or voting on the floor of the House. However, with respect to the facts before us, the respondents have failed to demonstrate how the alleged misconduct on part of the appellant and the petitioners could have a comparable effect. Using the route of legislative privileges to recommend the appellant’s expulsion in the present case is beyond the legitimate exercise of the privilege power of the House.

Re: Question II.

39. The next aspect that merits our attention is whether it was proper for the Punjab Vidhan Sabha to consider the alleged misconduct as a breach of privilege in spite of the fact that it took place during the Vidhan Sabha’s previous term. The allegedly improper exemption of a plot of land (measuring 32.10 Acres) from the Amritsar Improvement Scheme had been notified on 13-1-2006, during the 12th term of the Punjab Vidhan Sabha. On 22-02-2006, a question pertaining to this allegedly improper exemption was raised in the House and the same was discussed on 22-02-2006, 28- 02-2006 and 1-3-2006 respectively. At this juncture it must be clarified that there were separate allegations in the respondent’s submissions which suggest that the appellant had played a part in suppressing some materials when questions had been asked about the allegedly improper exemption. However, the said suppression of materials had been inquired into by another Committee and there were no findings against the appellant.

40. As mentioned earlier, the House was subsequently dissolved and a new regime was voted to power in the elections held in February 2007. It was during the present term of the House (i.e. the 13th term of the Punjab Vidhan Sabha) that the allegedly improper exemption was made the subject-matter of an inquiry by a Special Committee which was constituted in pursuance of a resolution passed by the House on 18-12-2007. The Special Committee presented its report on the floor of the House on 3-9-2008, which in turn became the basis of the impugned resolution of the Punjab Vidhan Sabha that was passed on 10-9-2008. Before addressing the contentious issue, it is necessary to understand the implications of the dissolution of a legislative chamber, since the Punjab Vidhan Sabha had been dissolved and re-constituted during the period between the operative dates, i.e. the date of notification of the allegedly improper exemption of land from the Amritsar Improvement Scheme (13-1-2006) and the constitution of the Special Committee to inquire into the said allegations of misconduct (18-12-2007).

41. The literal meaning of ‘dissolution’ is listed in Black’s Law Dictionary, 8th edn. [(West Group) at p. 506] as ‘the act of bringing to an end; termination’. P. Ramanatha Aiyar, Advanced Law Lexicon, 3rd edn., Vol. 2D-I, (Wadhwa & Co., 2005) furnishes the following definition, at p. 1435:

Dissolution and prorogation.- Constitution of India, Article 107(3), 174(2)(a) & (b), 196. Dissolution of Parliament is invariably proceeded by prorogation, and what is true about the result of prorogation, is, it is said a fortiori true about the result of dissolution. Dissolution of Parliament is sometimes described as “a civil death of Parliament”. Ilbert in his work on ‘Parliament’ has observed that ‘prorogation’ means the end of a Session (not of parliament)’; and adds that “like dissolution it kills all bills which have not yet been passed”. He also describes dissolution as “an end of Parliament (not merely of a session) by royal proclamation”, and observes that “it wipes the slate clean of uncompleted bills or other proceedings.

The effects of dissolution have also been discussed in the following manner [Cited from: Kaul and Shakdher, Practice and Procedure of Parliament, 5th edn. (New Delhi: Metropolitan Book Co. Pvt. Ltd., 2001) at pp. 191-193]:

EFFECTS OF DISSOLUTION

Dissolution, as already stated, marks the end of the life of a House and is followed by the constitution of a new House. One the House has been dissolved, the dissolution is irrevocable. There is no power vested in the president to cancel his order of dissolution and revive the previous House. The consequences of dissolution are absolute and irrevocable. In Lok Sabha, which alone is subject to dissolution under the Constitution, dissolution “passes a sponge over the Parliamentary slate”. All business pending before it or any of its committees lapses on dissolution. No part of the records of the dissolved House can be carried over and transcribed into the records and registers of the new House. In short, dissolution draws the final curtain upon the existing House.

Business before a Committee: All business pending before Parliamentary Committees of Lok Sabha lapse on dissolution of Lok Sabha. Committees themselves stand dissolved on dissolution of a Lok Sabha. However, a Committee which is unable to complete its work before the dissolution of a House may report to the house to that effect, in which case any preliminary memorandum or note that the committee may have prepared or any evidence that it may have taken is made available to the new Committee when appointed.

42. Coming to judicial observations, the effect of dissolution of a House were discussed by this Court in the Gujarat Assembly Election case, (2002) 8 SCC 237. V.N. Khare, J. (as His Lordship then was) had made the following observations:

40. …Dissolution ends the life of the legislature and brings an end to all business. The entire chain of sittings and sessions gets broken and there is no next session or the first sitting of the next session after the House itself has ceased to exist. Dissolution of Legislative Assembly ends the representative capacity of legislators and terminates the responsibility of the Cabinet to the Members of the Lok Sabha or the Legislative Assembly, as the case may be.

Furthermore, Pasayat, J. had explained:

135. Dissolution brings a legislative body to an end. It essentially terminates the life of such body and is followed by constitution of a new body (a Legislative Assembly or a House of People, as the case may be). Prorogation on the other hand relates to termination of a session and thus precludes another session, unless it coincides with the end of the legislative term. The basic difference is that prorogation unlike dissolution does not affect a legislative body’s life which may constitute from session to session, until brought to an end by dissolution. Dissolution draws the final curtain upon the House. Once the House is dissolved it becomes irrevocable. There is no power to recall the order of dissolution and/ or revive the previous House. Consequently effect of dissolution is absolute and irrevocable. It has been described by some learned authors that dissolution “passes a sponge over the parliamentary slate”. The effect of dissolution is in essence termination of current business of the legislative body, its sittings and sessions. There is a cessation of chain of sessions, sittings for a dissolved legislative body and there cannot be any next session or its first sitting. With the election of a legislative body a new chapter comes into operation. Till that is done the sine qua non of responsible government i.e. accountability is non- existent. Consequentially, the time stipulation is non-existent. Any other interpretation would render use of word “its” in relation to “last sitting in one session” and “first sitting in the next session” without significance.

43. In Purushothaman Nambudiri v. State of Kerala, AIR 1962 SC 694 Gajendragadkar J. (as His Lordship then was) had reflected on the effects of the dissolution of the House. The context in that case was that a Legislative Assembly had passed a bill and later the President had sent the bill back for reconsideration by the successor assembly. The question of whether the successor assembly needed to consider the bill afresh and pass it again was answered in the affirmative:

6. …The duration of the Legislative Assembly is prescribed by Article 172(1), and normally at the end of five years the life of the Assembly would come to an end. Its life could come to an end before the expiration of the said period of the five years if during the said five years the President acts under Article 356. In any case there is no continuity in the personality of the Assembly where the life of one Assembly comes to an end and another Assembly is in due course elected. If that be so, a bill passed by one Assembly cannot, on well recognized principles of democratic government be brought back to the successor Assembly as though a change in the personality of the Assembly had not taken place. The scheme of the Constitution in regard to the duration of the life of State Legislative Assembly, it is urged, supports the argument that with the dissolution of the Assembly all business pending before the Assembly at the date of dissolution must lapse. This position would be consonant with the well recognized principles of democratic rule. The Assembly derives its sovereign power to legislate essentially because it represents the will of the citizens of the State, and when one Assembly has been dissolved and another has been elected in its place, the successor Assembly cannot be required to carry on with the business pending before its predecessor, because that would assume continuity of personality which in the eyes of the Constitution does not exist. Therefore, sending the bill back to the successor Assembly with the message of the President would be inconsistent with the basic principles of democracy.

In Sub-Committee on Judicial Accountability v. Union of India, (1991) 4 SCC 699 G.N. Ray, J. had discussed the effect of dissolution of the Lok Sabha:

51. Adverting to the effect of dissolution on other business such as motions, resolutions etc. the learned authors say:

All other business pending in Lok Sabha e.g. motions, amendments, supplementary demands for grants etc., at whatever stage, lapses upon dissolution, as also the petitions presented to the House which stand referred to the Committee on Petitions.

44. On the basis of the authorities cited above, it is evident that ordinarily legislative business does not survive the dissolution of the House. The exception to this norm is covered by the ‘doctrine of lapse’ wherein the successor House can choose to take up a pending motion or any order of business after the re-constitution of the House. However, this exception is not applicable in the facts of the present case. At the time of the reconstitution of the Punjab Vidhan Sabha following the State elections in February 2007, there was no pending motion, report or any other order of business which had a connection with the allegedly improper exemption of land. It was much later, i.e. on 18-12-2007 that a Special Committee was constituted to inquire into the same. Hence, in this case the Special Committee proceeded to enquire into the executive acts of the appellants and petitioners which had taken place during the previous term of the Punjab Vidhan Sabha. It is quite untenable to allow the exercise of legislative privileges to punish past executive acts especially when there was no pending motion, report or any other order of business that was relatable to the said executive acts at the time of the re- constitution of the House.

45. While the legislature is free to inquire into acts and events that have taken place in the past, the same is ordinarily done in the nature of fact-finding to improve the quality of law-making. Legislative oversight over executive actions is an important facet of parliamentary democracy and such oversight can extend to executive decisions taken in the past. However, it is altogether another matter if privileges are purportedly exercised to punish those who have held executive office in the past. It is quite inconceivable as to how the allegedly improper exemption of land (notified on 13-1-2006) had the effect of obstructing the legislative business in the 13th term of the Punjab Vidhan Sabha. Hence, it is our considered view in respect of the facts in the present case, that it was improper for the 13th Punjab Vidhan Sabha to claim a breach of privileges on account of the alleged misconduct which actually took place during the 12th term of the Vidhan Sabha. However, our view should not be mistaken for a general proposition since it is within our imagination that in some circumstances the acts that have taken place during the previous terms of a Legislature could actually have the effect of distorting, obstructing or diluting the integrity of legislative business in the present term. Evidently, no such consequence or tendency has been demonstrated in the present case.

Re: Question III.

46. As noted in the survey of facts at the beginning of this opinion, the allegedly improper exemption of land from the Amritsar Improvement Scheme is the subject-matter of disputes that are pending before the High Court of Punjab and Haryana. Admittedly, these proceedings had been instituted soon after the notification of the said exemption (dated 13-1-2006) and the fact of their pendency was well known at the time of the constitution of the Special Committee by the Punjab Vidhan Sabha on 18-12-2007. This begs the question as to whether it was proper for the Punjab Vidhan Sabha to inquire into subject-matter which was already in question before a judicial forum.

47. The norms to be followed by a legislature in respect of sub judice matters have been discussed in the following words [Cited from: Griffith and Ryle, Parliament, Functions and Procedure (2003), Chapter 6 at Para 6-075):

A more significant reason for not allowing a notice of motion is if the matter is sub judice (awaiting decision in the courts); the same rule applies to debate and questions. The sub judice rule does not, however, apply to legislative business or where a ministerial decision is in question (e.g. in an application for judicial review). It applies only to cases in UK courts, not ones in courts elsewhere, even if they concern UK matters (e.g. the European Court of Human Rights). The Speaker has discretion to waive the rule and would normally do so when the case in question concerned issues of national importance such as the economy, public order or essential services.

This long standing practice has been confirmed by resolutions of the House. Cases which are active in a criminal court in the United Kingdom must not be referred to; this applies from the moment charges are made until the verdict is given. The same applies to civil actions once arrangements are made for a hearing. Cases which have been decided can become sub judice again if one party applies for leave to appeal. Under this rule, which comes into operation in relation to some half-dozen cases a session, motions (or questions) may not be tabled until the case is decided. If a motion has been tabled before the matter became sub judice it is taken off the Order Paper until the case ceases to be sub judice.

48. In fact, the relevant rules of the Rules of Business and Conduct of the Punjab Vidhan Sabha themselves incorporate these norms. Reference may be made to the language of Rule 39(10), 50, 93(2)(iv) and 150(d) which lay down the following:

39. In order that a question may be admissible it shall satisfy the following conditions, namely:

….

(10) It shall not ask for information on any matter which is under adjudication by a court of law having jurisdiction in any part of India;

…50. The right to move the adjournment of the business of the Vidhan Sabha (Assembly) for the purpose of discussing a definite matter of urgent public importance shall be subject to the following restrictions, namely:

****

(ix) the motion shall not deal with a matter on which a resolution could not be moved;

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(xi) the motion shall not deal with any matter which is under adjudication by a Court of law;

93. (1) The matter of every speech shall be strictly relevant to the matter before the House.

(2) A member while speaking shall not-

****

(iv) refer to a matter of fact on which a judicial decision is pending;

…150. In order that a resolution may be admissible, it shall satisfy the following conditions, namely-

****

(d) it shall not relate to any matter which is under adjudication by a Court of law having jurisdiction in any part of India.

49. The above-mentioned rules which govern the business and conduct of the Punjab Vidhan Sabha are quite categorical in laying down a prohibition on the taking up of any matter which is pending adjudication before a court of law. Analogues provisions control the business and conduct of the Lok Sabha See Rules 173, 188 and 352 of the Rules of Business and Conduct of the Lok Sabha. While Articles 122(1) and 212(1) of the Constitution prohibit judicial scrutiny over questions relating to compliance with these rules, our attention has been drawn to the fact that the Punjab Vidhan Sabha proceeded to inquire into the allegedly improper exemption of land from the Amritsar Improvement Scheme, even though the same had been questioned before the High Court of Punjab and Haryana.

50. Subhash C. Kashyap [in Parliamentary Procedure- Law Privileges, Practice & Precedents Vol. 1, (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2000)] has described a prominent example where the Speaker of the Lok Sabha had disallowed discussion on subject-matter that was pending before the courts. The following extract also touches on arguments for allowing the legislature to discuss sub judice matters in exceptional cases (at pp. 1225- 1226):

(iii) The following motion tabled by a member (Madhu Limaye) was included in the List of Business for 7 May 1968:

That this House disapproves of the statements made by Shri Ranganathan, Under Secy., Ministry Of External Affairs, on behalf of the Government of India in his affidavit in opposition on the 21 Apr. 1968, before the Delhi High Court which are contrary to the statements made by the Minister of Home Affairs in the House on the 28 Feb. 1968 in regard to implementation of Kutch Award.

When Limaye was called to move his motion, a point of order was raised by a member (Narayan Rao) and Law Minister (P. Govinda Menon) that discussion on affidavit would mean discussing a sub judice matter. The Speaker reserved his ruling. On 9 May 1968, the Speaker ruled inter alia as follows:

The rule on whether a motion which relates to a matter which is under adjudication by a court of law should be admitted or discussed in the House has to be interpreted strictly. While on the one hand the Chair has to ensure that no discussion in the House should prejudice the course of justice, the Chair has also to see that the House is not debarred from discussing an urgent matter of public importance on the ground that a similar, allied or linked matter is before a court of law. The test of sub judice in my opinion should be that the matter sought to be raised in the House is substantially identical with the one which a court of law has to adjudicate. Further, in case the Chair holds that a matter is sub judice the effect of this ruling is that the discussion on the matter is postponed till the judgment of the court is delivered. The bar of sub judice will not apply thereafter, unless the matter becomes sub judice again on an appeal to a higher court. Applying these two tests to the present notice of motion by Shri Limaye, I consider that in view of the statement by the Law Minister, that ‘the question that the affidavit filed by the Under Secretary is slightly at variance with what the Home Minister has stated has been raised in the court and is under adjudication by the court’ the very matter which is sought to be raised by the member is awaiting adjudication by the court of law.

Hence I consider that discussion on the notice of motion should be postponed until the court has delivered its judgment. I am however, clear that the matter is of public importance which should be discussed in the House and its importance will not be lost if the House awaits until the Court has adjudicated in the matter. [LS Deb. 6.5.1968, cc 2198- 2203; 7.5.1968, cc. 2649- 65; 9.5.1968, cc. 3149- 56]

51. It is a settled principle that ordinarily the content of legislative proceedings should not touch on sub judice matters. As indicated in the extract quoted above, the rationale for this norm is that legislative debate or scrutiny over matters pending for adjudication could unduly prejudice the rights of the litigants. In the case at hand, the allegedly improper exemption of land (measuring 32.10 acres) from the Amritsar Improvement Scheme had already been questioned before the High Court of Punjab and Haryana. Thus, the Punjab Vidhan Sabha ought not to have constituted a committee to inquire into the same.

CONCERNS ABOUT INTRUSION INTO THE EXECUTIVE AND JUDICIAL DOMAIN

52. The doctrine of separation of powers is an inseparable part of the evolution of parliamentary democracy itself. Renowned French philosopher Montesquieu had drawn the attention of political theorists to the dangers inherent in the concentration of legislative, executive and judicial powers in one authority and stressed on the necessity of checks and balances in constitutional governance. Our institutions of governance have been intentionally founded on the principle of separation of powers and the Constitution does not give unfettered power to any organ. All the three principal organs are expected to work in harmony and in consonance with the spirit and essence of the Constitution. It is clear that a legislative body is not entrusted with the power of adjudicating a case once an appropriate forum is in existence under the constitutional scheme. It would be pertinent to cite the following observations made by M.H. Beg J. (as His Lordship then was) in Indira Nehru Gandhi v. Raj Narain, (1975) Suppl. SCC 1:

392. …One of these basic principles seems to me to be that, just as courts are not constitutionally competent to legislate under the guise of interpretation, so also neither our Parliament nor any State Legislature, in the purported exercise of any kind of law- making power, perform an essentially judicial function by virtually withdrawing a particular case, pending in any court, and taking upon itself the duty to decide it by an application of law or its own standards to the facts of that case. This power must at least be first constitutionally taken away from the court concerned and vested in another authority before it can be lawfully exercised by that other authority. It is not a necessary or even a natural incident of a “constituent power”. As Hans Kelsen points out, in his “General Theory of Law and the State” (see p.143), while creation and annulment of all general norms, whether basic or not so basic, is essentially a legislative function their interpretation and application to findings reached, after a correct ascertainment of facts involved in an individual case, by employing the judicial technique, is really a judicial function. Neither of the three constitutionally separate organs of State can, according to the basic scheme of our Constitution today, leap outside the boundaries of its own constitutionally assigned sphere or orbit of authority into that of the other. This is the logical meaning of the principle of supremacy of the Constitution.

53. The impugned resolution (dated 10-9-2008) passed by the Punjab Vidhan Sabha contains directions as to how the investigation into the appellant’s and petitioners’ alleged wrongdoing should be conducted. The resolution directs the filing of First Information Reports (FIRs) and custodial interrogation in addition to directing the Vigilance Department, Punjab to find out where the appellant and the others have stored their ‘ill gotten wealth’ and further directs the Vigilance Department to report back to the Speaker of the Punjab Vidhan Sabha. These functions are within the domain of the executive. It is up to the investigating agencies themselves to decide how to proceed with the investigation in a particular case. The role of the legislature in this regard can at best be recommendatory and the Speaker of a Legislature may not assume the responsibility of monitoring an ongoing investigation. A determination of guilt or innocence by way of fact-finding is a role properly reserved for the trial judge. The only exception to this principle is when the impugned acts have the effect of distorting, obstructing or threatening the integrity of legislative proceedings or are likely to do the same, thereby warranting the exercise of privileges. As we have already noted above, there was an obvious jurisdictional error on part of the Punjab Vidhan Sabha in the present case.

54. A decision of the United States Supreme Court which raised similar concerns was that of Kilbourn v. Thompson 103 US 168 (1881). In that case, the House of Representatives of the United States Congress had appointed a Special Committee to investigate into activities related to a ‘real estate pool’, since it had attracted investments from one Jay Cook & Co. who was a debtor-in-bankruptcy to the Government of the United States. The Special Committee was set up and it had served a sub poena to Kilbourn, requiring the latter to present himself before the Special Committee and to answer questions and produce documents. Kilbourn appeared but he refused to cooperate with the Committee’s proceedings. The House of Representatives passed a resolution directing that Kilbourn be arrested and placed under custody until such time as he purged himself of the contempt and communicated to the House his willingness to submit to the jurisdiction of the Special Committee. The matter reached the Supreme Court of the United States by way of a writ of habeas corpus filed by Kilbourn. The relevant observations by Miller, J. are produced as follows:

In looking to the preamble and resolution under which the committee acted, before which Kilbourne refused to testify, we are of the opinion that the House of Representatives not only exceeded the limit of its own authority, but assumed a power which could only be properly exercised by another branch of the government, because it was, in its nature, clearly judicial.

The Constitution declares that the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. If what we have said of the division of the powers of the government among the three departments be sound, this is equivalent to a declaration that no judicial power is vested in the Congress or either branch of it, save in cases specifically enumerated to which we have referred. If the investigation which the committee was directed to make was judicial in its character, and could only be properly and successfully made by a court of justice, and if it related to a matter wherein relief or redress could be had only by a judicial proceeding, we do not, after what has been said, deem it necessary to discuss the proposition that the power attempted to be exercised was one confided by the Constitution to the judicial, and not to the legislative, department of the government. We think it equally clear that the power asserted is judicial, and not legislative. (103 US 168, 192- 193)

****

How could the House of Representatives know, until it had been fairly tried, that the courts were powerless to redress the creditors of Jay Cook & Co.? The matter was still pending in a court, and what right had the Congress of the United States to interfere with a suit pending in a court of competent jurisdiction? Again, what inadequacy of power existed in the court, or, as the preamble assumes, in all courts, to give redress which could lawfully be supplied by an investigation by a committee of one House of Congress, or by any act or resolution of Congress on the subject? The case being one of a judicial nature, for which the power of the courts usually afford the only remedy, it may well be supposed that those powers were more appropriate and more efficient in said of such relief than the powers which belong to a body whose function is exclusively legislative. If the settlement to which the preamble refers as the principal reason why the courts are rendered powerless was obtained by fraud, or was without authority, or for any conceivable reason could be set aside or avoided, it should be done by some appropriate proceeding in the court which had the whole matter before it, and which had all the power in that case proper to be entrusted to any body, and not by Congress or by any power to be conferred on a committee of one of the two Houses. (103 US 168, 194)

The observations cited above are self-explanatory and we echo the concerns about the overreach into the judicial domain in the fact-situation before us.

CONCLUSION

55. In the light of the preceding discussion we have arrived at the following conclusions:

(i) If there were any irregularities committed by the appellant and the petitioners in relation to the exemption of land (notified on 13-1-2006) from the Amritsar Improvement Scheme, the proper course of action on part of the State Government should have been to move the criminal law machinery with the filing of a complaint followed by investigation as contemplated under the Code of Criminal Procedure. It is our considered view that the Punjab Vidhan Sabha exceeded its powers by expelling the appellant on the ground of a breach of privilege when there existed none. The allegedly improper exemption of land was an executive act attributable to the appellant and it did not distort, obstruct or threaten the integrity of legislative proceedings in any manner. Hence, the exercise of legislative privileges under Article 194(3) of the Constitution was not proper in the present case.

(ii) Furthermore, the allegedly improper exemption of land took place during the 12th term of the Punjab Vidhan Sabha, whereas the constitution of the Special Committee to inquire into the same took place during the 13th term. It was not proper for the Assembly to inquire into actions that took place during its previous term, especially when there was no relatable business that had lapsed from the previous term. If we were to permit the legislature to exercise privileges for acting against members for their executive acts during previous terms, the Courts are likely to be flooded with cases involving political rivalries. One can conceive that whenever there is a change of regime, the fresh incumbents would readily fall back on the device of legislative privileges to expel their political opponents as well as dissidents. Such a scenario would frustrate some of the basic objectives of a parliamentary democracy.

(iii) When it was well known that the allegedly improper exemption of land from the Amritsar Improvement Scheme was the subject-matter of proceedings instituted before the High Court of Punjab and Haryana, the Punjab Vidhan Sabha should have refrained from dealing with the same subject-matter.

56. We accordingly declare that the resolution passed by the Punjab Vidhan Sabha on 10-9-2008, directing the expulsion of the appellant for the remainder of the 13th term of the Vidhan Sabha is constitutionally invalid. Hence, we direct the restoration of the appellant’s membership in the Punjab Vidhan Sabha. However, nothing in this judgment should act as a hurdle against the investigation, if any, into the alleged role of the appellant and the petitioners in the improper exemption of land from the Amritsar Improvement Scheme that was notified on 13-1-2006. To repeat a clichi, the law will take its own course.

57. This appeal and the connected petitions are disposed off accordingly, however with no order as to costs.

Protection of life and personal liberty under Article 21 of Indian Constitution

INDIAN CONSTITUTION

The Great Idea of  life and liberty

In Kartar Singh and Ors. V. State of Punjab (1994) 3 SCC 569, wherein Justice K.Ramaswamy, speaking for the Court, discussed the importance of life and liberty in the following words :

“The foundation of Indian political and social democracy, as envisioned in the preamble of the Constitution, rests on justice, equality, liberty and fraternity in secular and socialist republic in which every individual has equal opportunity to strive towards excellence and of his dignity of person in an integrated egalitarian Bharat. Right to justice and equality and stated liberties which include freedom of expression, belief and movement are the means for excellence. The right to life with human dignity of person is a fundamental right of every citizen for pursuit of happiness and excellence. Personal freedom is a basic condition for full development of human personality. Art.21 of the Constitution protects right to life which is the most precious right in a civilized society. The trinity i.e. liberty, equality and fraternity always blossoms and enlivens the flower of human dignity. One of the gifts of democracy to mankind is the right to personal liberty. Life and personal freedom are the prized jewels under Art.19 conjointly assured by Art.20(3), 21 and 22 of the Constitution and Art.19 ensures freedom of movement. Liberty aims at freedom not only from arbitrary restraint but also to secure such conditions which are essential for the full development of human personality. Liberty is the essential concomitant for other rights without which a man cannot be at his best. The essence of all civil liberties is to keep alive the freedom of the individual subject to the limitations of social control envisaged in diverse articles in the chapter of Fundamental Rights Part III in harmony with social good envisaged in the Directive Principles in Part IV of the Constitution. Freedom cannot last long unless it is coupled with order. Freedom can never exist without order. Freedom and order may coexist. It is essential that freedom should be exercised under authority and order should be enforced by authority which is vested solely in the executive. Fundamental rights are the means and directive principles are essential ends in a welfare State. The evolution of the State from police State to a welfare State is the ultimate measure and accepted standard of democratic society which is an avowed constitutional mandate. Though one of the main functions of the democratic Government is to safeguard liberty of the individual, unless its exercise is subject to social control, it becomes anti-social or undermines the security of the State. The Indian democracy wedded to rule of law aims not only to protect the fundamental rights of its citizens but also to establish an egalitarian social order. The individual has to grow within the social confines preventing his unsocial or unbridled growth which could be done by reconciling individual liberty with social control. Liberty must be controlled in the interest of the society but the social interest must never be overbearing to justify total deprivation of individual liberty. Liberty cannot stand alone but must be paired with a companion virtue; liberty and morality; liberty and law; liberty and justice; liberty and common good; liberty and responsibility which are concomitants for orderly progress and social stability. Man being a rational individual has to life in harmony with equal rights of others and more differently for the attainment of antithetic desires. This intertwined network is difficult to delineate within defined spheres of conduct within which freedom of action may be confined. Therefore, liberty would not always be an absolute license but must arm itself within the confines of law. In other words, here can be no liberty without social restraint. Liberty, therefore, as a social conception is a right to be assured to all members of a society. Unless restraint is enforced on and accepted by all members of the society, the liberty of some must involve the oppression of others. If liberty be regarded a social order, the problem of establishing liberty must be a problem of organizing restraint which society controls over the individual. Therefore, liberty of each citizen is borne of and must be subordinated to the liberty of the greatest number, in other words common happiness as an end of the society, lest lawlessness and anarchy will tamper social weal and harmony and powerful courses or forces would be at work to undermine social welfare and order. Thus the essence of civil liberty is to keep alive the freedom of the individual subject to the limitation of social control which could be adjusted according to the needs of the dynamic social evolution. The modem social evolution is the growing need to keep individual to be as free as possible, consistent with his correlative obligation to the society. According to Dr. Ambedkar in his closing speech in the Constituent Assembly, the principles of liberty, equality and fraternity are not to be treated as separate entities but in a trinity. They form the union or trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality. Equality cannot be divorced from liberty. Nor can equality and liberty be divorced from fraternity. Without equality, liberty would produce supremacy of law. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality would not become a natural course of things. Courts, as sentinel on the qui vive, therefore, must strike a balance between the changing needs of the society for peaceful transformation with orders and protection of the rights of the citizen.(Para 374)

Equality before Law under Article 14 of Indian Constitution

INDIAN CONSTITUTION

The Concept of Equality 

From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of ARTICLE 14, and if it affects any matter relating to public employment, it is also violative of ARTICLE 16. Arts. 14 and 16 strike at arbitrariness in State action an( ensure fairness and equality of treatment. They require that State action must be based on valent relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would: amount to mala fide exercise of power and that is hit by Arts. 14 and 16. Mala fide exercise of Power and arbitrariness are different lethal radiations emanating from the same vice: in fact the matter comprehends the former. Both are inhibited by Arts. 14 and 16 It is also necessary to point out that the ambit and reach of Arts. 14 and 16 are not limited to cases where the public servant affected has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Arts. 14 and 16 if he has been. arbitrarily or unfairly treated or subjected to mala fide exercise of. power by the State machine.  Art 16 embodies the fundamental guarantee that Arts. 14 as there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Art 16 is only an instance of the application of the concept of equality enshrined in Art 14. In other words, Art 14 is the genus while Art 16 is a species, Art 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Arts. 14 and 16 is equality and inhibition against discrimination( E. P. Royappa vs State Of Tamil Nadu & Anr on 23 November,  1974 AIR 555, 1974 SCR (2) 348)

Meaning of “Consultation with the Chief Justice of India” in Articles 217(1) and 222 (1) of the Constitution of India

SC

1. The expression “consultation with the Chief Justice of India” in Articles 217(1) and 222 (1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole, individual opinion of the Chief Justice of India does not constitute “consultation” within the meaning of the said Articles.

2. The transfer of puisne Judges is judicially reviewable only to this extent:that the recommendation that has been made by the Chief Justice of India in this behalf has not been made in consultation with the four senior-most puisne Judges of the Supreme Court and/or that the views of the Chief Justice of the High Court from which the transfer is to be effected and of the Chief Justice of the High Court to which the transfer is to be effected have not been obtained.

3. The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four senior-most puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with the two senior-most puisne Judges of the Supreme Court.

4. The Chief Justice of India is not entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court, in respect of materials and information conveyed by the Government of India for non-appointment of a Judge recommended for appointment.

5. The requirement of consultation by the Chief Justice of India with his colleagues who are likely to be conversant with the affairs of the concerned High Court does not refer only to those Judges who have that High Court as a parent High Court. It does not exclude Judges who have occupied the office of a Judge or Chief Justice of that High Court on transfer.

6. “Strong cogent reasons” do not have to be recorded, as justification for a departure from the order of seniority, in respect of each senior Judge who has been passed over. What has to be recorded is the positive reason for the recommendation.

7. The view of the other Judges consulted should be in writing and should be conveyed to the Government of India by the Chief Justice of India along with his views to the extent set out in the body of this opinion.

8. The Chief Justice of India is obliged to comply with the norms and the requirement of the consultation process, as aforestated, in making his recommendations to the Government of India.

9. Recommendations made by the Chief Justice of India without complying with the norms and requirements of the consultation process, as aforestated, are not binding upon the Government of India.[Presidential Reference-AIR 1999 SC 1 : (1998) 2 Suppl. SCR 400 : (1998) 7 SCC 739 : JT 1998 (7) SC 304 : (1998) 5 SCALE 629]

Shri Kihota Hollohon Vs Mr. Zachilhu and others[ALL SC 1992 FEBRUARY]

KEYWORDS:-POWER OF SPEAKER-

c

DATE:- 18-02-1992

AIR 1993 SC 412 : (1992) 1 SCR 686 : (1992) 2 Suppl. SCC 651 : JT 1992 (1) SC 600 : (1992) 1 SCALE 338

(SUPREME COURT OF INDIA)

Shri Kihota Hollohon Appellant
Versus
Mr. Zachilhu and others Respondent

(Before: L. M. Sharma, M. N. Venkatachaliah, J. S. Verma, K. Jayachandra Reddy And S. C. Agrawal, JJ.)

Transfer Petn. (Civil) No. 40 of 1991, Decided on: 18-02-1992.

Constitution of India, 1950—Articles 368(2), 136, 226, 122(1), 212(1), 102, 191 and 227.

Judgment

(OPERATIVE CONCLUSIONS IN THE MAJORITY OPINION) (PER VENKATACHALIAH, K. JAYACHANDRA REDDY AND AGRAWAL, JJ.):- The Writ Petitions, Transfer Petitions, Civil Appeals, Special Leave Petitions and other connected matters raising common questions as to the constitutional validity of the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, were heard together. Some of these matters involve investigation and determination of factual controversies and of the extent of applicability to them of the conclusions reached on the various constitutional issues. That exercise shall have to be undertaken in the individual cases separately.

The present judgment is pronounced in the Transfer Petition No. 40 of 1991 seeking the transfer of the Writ Petition, Rule No. 2421/90 on the file of the High Court of Guwahati to this Court.

2. The Transfer Petition is allowed and the aforesaid Writ Petition is withdrawn to this Court for the purpose of deciding the constitutional issues and of declaring the law on the matter.

3. For the reasons to be set out in the detailed judgment to follow, the following are the operative conclusions in the majority opinion on the various constitutional issues:

A) That having regard to the background and evolution of the principles underlying the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the Constitution in terms and in effect bring about a change in the operation and effect of Arts. 136, 226 and 227 of the Constitution of India and, therefore, the amendment would require to be ratified in accordance with the proviso to sub-Art. (2) of Art. 368 of the Constitution of India.

B) That there is nothing in the said proviso to Art. 368(2) which detracts 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.

C) That, accordingly, the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, to the extent of its provisions which are amenable to the legal-sovereign of the amending process of the Union Parliament cannot be overborne by the proviso which cannot operate in that area. There is no justification for the view that even the rest of the provisions of the Constitution (52nd Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Art. 368(2) was not so ratified.

D) That Paragraph 7 of the Tenth Schedule contains a provision which is 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 defections 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 are not truncated by the excision of Paragraph 7.

E) 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 Arts. 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.

F) 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.

G) The Speakers/ Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review.

However, having regard to the Constitutional Scheme in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/ Chairmen. Having regard to the Constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repurcussions and consequence.

H) That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/ Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Arts. 136, 226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, mala fides non-compliance with Rules of Natural Justice and perversity are concerned.

I) That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts in immunity analogous to that in Arts. 122(1) and 212(1) of the Constitution as understood and explained in Keshav Singh’s case (supra), to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words “be deemed to be proceedings in Parliament” or “proceedings in the Legislature of a State” confines the scope of the fiction accordingly.

J) The contention that the investiture of adjudicatory functions in the Speakers/ Chairmen would by itself vitiate the provision on the ground of likelihood of political bias is unsound and is rejected. The Speakers/ Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far-reaching decisions in the functioning of Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in such constitutional functionaries should not be considered exceptionable.

K) In the view we take of the validity of Paragraph 7 it is unnecessary to pronounce on the contention that judicial review is a basic structure of the Constitution and Paragraph 7 of the Tenth Schedule violates such basic structure.

4. The factual controversies raised in the Writ Petition will, however, have to be decided by the High Court applying the principles declared and laid down by this judgment. The Writ Petition is, accordingly, remitted to the High Court for such disposal in accordance with law.

5. (OPERATIVE CONCLUSIONS IN THE MINORITY OPINION) (PER SHARMA AND VERMA, JJ”>.):- . For the reasons to be given in our detailed judgment to follow, our operative conclusions in the minority opinion on the various constitutional issues are as follows:

1. Para 7 of the Tenth Schedule, in clear terms and in effect excludes the jurisdiction of all courts, including the Supreme Court under Art. 136 and the High Courts under Arts. 226 and 227 to entertain any challenge to the decision under para 6 on any ground even of illegality or perversity, not only at an interim stage but also after the final decision on the question of disqualification on the ground of defection.

2. Para 7 of the Tenth Schedule, therefore, in terms and in effect, makes a change in Art. 136 in Chapter IV of Part V; and Arts. 226 and 227 in Chapter V of Part VI of the Constitution, attracting the proviso to clause (2) of Art. 368.

3. In view of para 7 in the Bill resulting in the Constitution (Fifty-Second Amendment) Act, 1985 it was required to be ratified by the Legislature of not less than one-half of the States as a condition precedent before the Bill could be presented to the President for assent, in accordance with the mandatory special procedure prescribed in the Proviso to clause (2) of Art. 368 for exercise of the constituent powers. Without ratification by the specified number of State Legislatures, the stage for presenting the Bill for assent of the President did not reach and, therefore, the so-called assent of the President was non est and did not result in the Constitution standing amended in accordance with the terms of the Bill.

4. In the absence of ratification by the specified number of State Legislature before presentation of the Bill to the President for his assent, as required by the Proviso to clause (2) of Art. 368, it is not merely para 7 but, the entire Constitution (Fifty-second Amendment) Act, 1985 which is rendered unconstitutional, since the constituent power was not exercised as prescribed in Art. 368, and therefore, the Constitution did not stand amended in accordance with the terms of the Bill providing for the amendment.

5. Doctrine of Severability cannot be applied to a Bill making a constitutional amendment where any part thereof attracts the Proviso to clause (2) of Art. 368.

6. Doctrine of Severability is not applicable to permit striking down para 7 alone saving the remaining provisions of the Bill making the Constitutional Amendment on the ground that para 7 alone attracts the proviso to clause (2) of Article 368.

7. Even otherwise, having regard to the provisions of the Tenth Schedule of the Constitution inserted by the Constitution (Fifty-Second Amendment) Act, 1985, the Doctrine of Severability does not apply to it.

8. Democracy is a part of the basic structure of the Constitution and free and fair elections with provision for resolution of disputes relating to the same as also for adjudication of those relating to subsequent disqualification by an independent body outside the House are essential features of the democratic system in our Constitution. Accordingly, an independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House is envisaged as an attribute of this basic feature. The tenure of the Speaker who is the authority in the Tenth Schedule to decide this dispute is dependent on the continuous support of the majority in the House and, therefore, he (the Speaker) does not satisfy the requirement of such an independent adjudicatory authority; and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature.

9. Consequently, the entire Constitution (Fifty-Second Amendment) Act, 1985 which inserted the Tenth Schedule together with clause (2) in Articles 102 and 191, must be declared unconstitutional or an abortive attempt to so amend the Constitution.

10. It follows that the decisions rendered by the several Speakers under the Tenth Schedule must also be declared nullity and liable to be ignored.

11. On the above conclusions, it does not appear necessary or appropriate to decide the remaining questions urged.

Venkatachaliah, JIn 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 Art. 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.

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.

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 Santosh 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.

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 likley 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 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 phemomenon 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”.

                                                                          (Emphasis supplied)

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-eight 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.

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 Cl. (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 yardstick 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-para. (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 Art. 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of Art. 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 Art. 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 Art. 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 Art. 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 may 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 v. Union of India, AIR 1987 Punj and Har 263 (FB)) 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 uno flatu 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 Arts. 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 functions 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 analysis 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 penalise 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 Arts. 136, 226 and 227 of the Constitution of India and, therefore, the Bill introducing the amendment attracts the proviso to Art. 368(2) of the Constitution and would require to be ratified by the legislatures 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 Legislatures 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 Arts. 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 Arts. 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 “Constitution 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, (1899) 44 Lawyer’s Edition 597 at page 605 ate 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 ……….”

                                                                                              (page 1)

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, unremitted 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 and 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 AC 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.”

(Page 111)

“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 ………….”

                                                                                         (Page 113)

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…………”

                                                                                         (Page 115)

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 identify, “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.

(Page 217)                                                             (Emphasis supplied)

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 determinations 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.”

                                                                                (Emphasis supplied)

(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 worthwhile 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 Holmes in such areas, Pohlman again says:

“A number of Holmes’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 chances.” “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.”

(Emphasis supplied)

(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 Art. 105(2) of the Constitution which according to him are placed by judicial decisions even higher than the fundamental-right in Art. 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 Art. 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 either 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 Art. 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 v. Debi Ghosal (1982) 3 SCR 318 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 are, and therefore, subject to statutory limitation.”

(Page 326 of SCR):

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 Art. 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 pursuasion are, 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 and 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.”                             (Emphasis supplied)

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 votes 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 se 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 and 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 dilemmas 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 tilted 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 representatives. 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.”

(pp. 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-crossing 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 Katzenbach v. Morgan (1966) 384 US 641).

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 urged that if floor-crossing by one Member is an evil, then a collective perpetration of it by 1/ 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 1/3rd 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 Arts. 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, (sic) 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 Articles 136, 226 and 227 but merely prevents an interlocutory intervention or a quia-timet 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 RaoScindia Bahadur v. Union of India, (1971) 1 SCC 85:

“………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 fairplay, 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 (of SCC):]

It is true that the provision which seeks to exclude the jurisdiction of Courts is strictly construed. (See also:Secretary of State v. Mask and Co., AIR 1940 PC 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 proposed 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-eighth 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, (1965) 1 SCR 933 .

24. In Sankari Prasad’s case, (supra) 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 Article 13 read with other relevant articles in Part III, while Article 31B purports to validate certain specified Acts and Regulations already passed, which, but for such a provision, would be liable to be impugned under Article 13. It is not correct to say that the powers of the High Court under Article 226 to issue writs “for the enforcement of any of the rights conferred by Part III” or of this Court under Articles 132 and 136 to entertain appeals from orders issuing or refusing such writs are in any way affected. They remain just the same as they were before:only a certain class of cases has been excluded from the purview of Part III and the Courts could no longer interfere, not because their powers were curtailed in any manner or to any extent, but because there would be no occasion hereafter for the exercise of their power in such cases.”

[(1952) SCR 89 at page No. 108]

In Sajjan Singh’s case, (supra) a similar contention was raised against the validity of the Constitution (17th Amendment) Act, 1964 by which Article 31 A 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?”

[p. 940 (of SCR):]

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 socio-economic policy in which the party in power believes. If that be so, the effect of the amendment on the area over which the High Courts’ powers prescribed by Article 226 operate, is incidental and in the present case can be described as of an insignificant order. The impugned Act does not purport to change the provisions of Article 226 and it cannot be said even to have that effect directly or in any appreciable measure. That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained …………..”

[p. 944 (of SCR):]

The propositions that fell for consideration in Sankari Prasad Singh’s (supra) and Sajjan Singh’s cases (supra) are indeed different. There the jurisdiction and power of the Courts under Articles 136 and 226 were not sought to be taken away nor was there any change brought about in those provisions either “in terms or in effect”, since the very rights which could be adjudicated under and enforced by the Courts were themselves taken away by the Constitution. The result was that there was no area for the jurisdiction of the Courts to operate upon. Matters are entirely different in the context of paragraph 7. Indeed the aforesaid cases, by necessary implication support the point urged for the petitioners. The changes in Chapter IV of Part V and Chapter V of Part VI envisaged by the proviso need not 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. Indeed this position was recognised in Sajjan Singh’s case (supra) where it was observed:

“If the effect of the amendment made in the fundamental rights on Article 226 is direct and not incidental and is of a very significant order, different considerations may perhaps, arise.

[p. 944 (of SCR):]

In the present cases, 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 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. Accordingly, on point B, we hold:

“That having regard to the background and evolution of the principles underlying the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the Constitution in terms and in effect bring 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 to be ratified in accordance with the proviso to sub-Article (2) of Article 368 of the Constitution of India.”

25. Re:Contentions ‘C’ and ‘D:’

The criterion for determining the validity of a law is the competence of the law-making authority. The competence of the law-making authority would depend on the ambit of the legislative power, and the limitations imposed thereon as also the limitations on mode of exercise of the power. 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 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. Both these limitations, however, touch and affect the constituent power itself, disregard of which invalidates its exercise.

26. The Constitution provides for amendment in Articles 4, 169, 368, paragraph 7 of Fifth Schedule and paragraph 21 of Sixth Schedule. Article 4 makes provisions for amendment of the First and the Fourth Schedules, Article 169 provides for amendment in the provision of the Constitution which may be necessary for abolition or creation of Legislative Councils in States, paragraph 7 of the Fifth Schedule provides for amendment of the Fifth Schedule and paragraph 21 of Sixth Schedule provides for amendment of the Sixth Schedule. All these provisions prescribe that the said amendments can be made by a law made by Parliament which can be passed like any other law by a simple majority in the Houses of Parliament. Article 368 confers the power to amend the rest of the provisions of the Constitution. In sub-Article (2) of Article 368, a special majority two-thirds of the members of each House of Parliament present and voting and majority of total membership of such House – is required to effectuate the amendments. The proviso to sub-article (2) of Article 368 imposes a further requirement that if any change in the provisions set out in clauses (a) to (e) of the proviso, is intended it would then be necessary that the amendment be ratified by the legislature of not less than one-half of the States.

Although there is no specific enumerated substantive limitation 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. The amending power under Article 368 is subject to the substantive limitation in that the basic structure cannot be altered or the basic features of the Constitution destroyed. The limitation requiring a special majority is a procedural one. Both these limitations impose a fetter on the competence of Parliament to amend the Constitution and any amendment made in disregard of these limitations would go beyond the amending power.

27. While examining the constitutional validity of laws the principle that is applied is 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 be separated from the invalid part. This is done by applying the doctrine of severability. The rationale of this doctrine has been explained by Cooley in the following words:

“It will sometimes be found that an act of the legislature is opposed in some of its provisions to the constitution, while others, standing by themselves, would be unobjectionable. So the forms observed in passing it may be sufficient for some of the purposes sought to be accomplished by it, but insufficient for others. In any such case the portion which conflicts with the constitution, or in regard to which the necessary conditions have not been observed, must be treated as a nullity. Whether the other parts of the statute must also be adjudged void because of the association must depend upon a consideration of the object of the law, and in what manner and to what extent the unconstitutional portion affects the remainder. A statute, it has been said, is judicially held to be unconstitutional, because it is not within the scope of legislative authority; it may either propose to accomplish something prohibited by the constitution, or to accomplish some lawful, and even laudable object, by means repugnant to the Constitution of the United States or of the State. A statute may contain some such provisions, and yet the same act, having received the sanction of all branches of the legislature, and being in the form of law, may contain other useful and salutary provisions, not obnoxious to any just constitutional exception. It would be inconsistent with all just principles of constitutional law to adjudge these enactments void because they are associated in the same act, but not connected with or dependent on others which are unconstitutional.”

[Cooley’s Constitutional Limitations; 8th Edn. Vol. I, p. 359-360]

In R. M. D. Chamarbaugwalla v. Union of India, (1957) SCR 930 , this Court has observed:

“The question whether a statute, which is void in part is to be treated as void in toto, or whether it is capable of enforcement as to that part which is valid is one which can arise only with reference to laws enacted by bodies which do not possess unlimited powers of legislation, as, for example, the legislatures in a Federal Union. The limitation on their powers may be of two kinds:It may be with reference to the subject-matter on which they could legislate, as, for example, the topics enumerated in the Lists in the Seventh Schedule in the Indian Constitution, Ss.91 and 92 of the Canadian Constitution, and S. 51 of the Australian Constitution; or it may be with reference to the character of the legislation which they could enact in respect of subjects assigned to them, as for example, in relation to the fundamental rights guaranteed in Part III of the Constitution and similar Constitutionally protected rights in the American and other Constitutions. When a legislature whose authority is subject to limitations aforesaid enacts a law which is wholly in excess of its powers, it is entirely void and must be completely ignored. But where the legislation falls in part within the area allotted to it and in part outside it, it is undoubtedly void as to the latter; hut does it on that account become necessarily void in its entirety? The answer to this question must depend on whether what is valid could be. separated from what is invalid, and that is a question which has to be decided by the Court on a consideration of the provisions of the Act.” (p. 940) (of SCR):.

The doctrine of severability has been applied by this Court in cases of challenge to the validity of an amendment on the ground of disregard of the substantive limitations on the amending power, namely, alteration of the basic structure. But only the offending part of the amendment which had the effect of altering the basic structure was struck down while the rest of the amendment was upheld [See:Shri Kesavananda Bharti Sripadagalavaru v. State of Kerala, 1973 Supp SCR 1 ; Minerva Mills Ltd. v. Union of India, (1981) 1 SCR 206 ; P. Sambhamurthy v. State of Andhra Pradesh, (1987) 1 SCR 879 ].

28. Is there anything in the procedural limitations imposed by sub-Article (2) of Article 368 which excludes the doctrine of severability in respect of a law which violates the said limitations? Such a violation may arise when there is a composite Bill or what is in statutory context or jargon called a ‘Rag-Bag’ measure seeking amendments to several statutes under one amending measure which seeks to amend various provisions of the Constitution some of which may attract clauses (a) to (e) of the proviso to Article 368(2) and the Bill, though passed by the requisite majority in both the Houses of Parliament has received the assent of the President without it being sent to States for ratification or having been so sent falls to receive such ratification from not less than half the States before the Bill is presented for assent. Such an Amendment Act is within the competence of Parliament insofar as it relates to provisions other than those mentioned in clauses (a) to (e) of proviso to Article 368(2) but in respect of the amendments introduced in provisions referred to in clauses (a) to (e) of proviso to Article 368(2), Parliament alone is not competent to make such amendments on account of some constitutionally recognised federal principle being invoked. If the doctrine of severability can be applied it can be upheld as valid in respect of the amendments within the competence of Parliament and only the amendments which Parliament alone was not competent to make could be declared invalid.

29. Is there anything compelling in the proviso to Article 368(2) requiring it to be construed as excluding the doctrine of severability to such an amendment? It is settled rule of statutory construction that “the proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case” and that where “the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its express terms”. [See:Madras and Southern Mahratta Railway Company v. Bezwada Municipality, (1944) 71 Ind App 113 at page No. 122; Commr. of Income-tax, Mysore v. Indo-Mercantile Bank Ltd., (1959) 2 Suppl. SCR 256 at page No. 266].

The proviso to Article 368 (2) appears to have been introduced with a view to giving effect to the federal principle. In the matter of amendment of provisions specified in clauses (a) to (e) relating to legislative and executive powers of the States vis-a-vis the Union, the Judiciary, the election of the President and the amending power itself, which have a bearing on the States, the proviso imposes an additional requirement of ratification of the amendment which seeks to effect a change in those provisions before the Bill is presented for the assent of the President. It is salutary that the scope of the proviso 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). 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. The main part of Article, 368(2) directs that when a Bill which has been passed by the requisite special majority by both the Houses has received the assent of the President “the Constitution shall stand amended in accordance with the terms of the Bill”. The proviso cannot have the effect of interdicting this constitutional declaration and mandate to mean that in a case where the proviso has not been complied – even the amendments which do not fall within the ambit of the proviso also become abortive. The words “the amendment shall alsorequire to be ratified by the legislature” 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 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, which do not fall within its ambit. Indeed the following observations of this Court in Sajjan Singh case (supra) are apposite:

“In our opinion, the two parts of Art. 368 must on a reasonable construction be harmonised with each other in the sense that the scope and effect of either of them should not be allowed to be unduly reduced or enlarged.”

                                                                            [p. 940 (of SCR):].

30. During the arguments reliance was placed on the words “before the Bill making provision for such amendment is presented to the President for assent” to sustain the argument that these words imply that the ratification of the Bill by not less than one-half of the States is a condition-precedent for the presentation of the Bill for the assent of the President. It is further argued that a Bill which seeks to make a change in the provisions referred to in clauses (a) to (e) of the proviso cannot be presented before the President for his assent without such ratification and if assent is given by the President in the absence of such ratification, the amending Act would be void and ineffective in its entirety.

A similar situation can arise in the context of the main part of Article 368(2) which provides:”when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President”. Here also a condition is imposed that the Bill shall be presented to the President for his assent only after it has been passed in each House by the prescribed special majority. An amendment in the First and Fourth Schedules referable to Article 4 can be introduced by Parliament by an ordinary law passed by simple majority. There may be a Bill which may contain amendments made in the First and Fourth Schedules as well as amendments in other provisions of the Constitution excluding those referred to in the proviso which can be amended only by a special majority under Article 368(2) and the Bill after having been passed only by an ordinary majority instead of a special majority has received the assent of the President. The amendments which are made in the First and Fourth Schedules by the said amendment Act were validly made in view of Article 4 but the amendments in other provisions were in disregard to Article 368(2) which requires a special majority. Is not the doctrine of severability applicable to such an amendment so that amendments made in the First and Fourth Schedules may be upheld while declaring the amendments in the other provisions as ineffective? A contrary view excluding the doctrine of severability would result in elevating a procedural limitation on the amending power to a level higher than the substantive limitations.

31. In Bribery Commissioner v. Pedrick Ranasinghe, 1965 AC 172, the Judicial Committee has had to deal with a somewhat similar situation. This was a case from Ceylon under the Ceylon (Constitution) Order of 1946. Clause (4) of Section 29 of the said Order in Council contained the amending power in the following terms:

“(4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island:

Provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under the hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two-thirds of the whole number of Members of the House (including those not present).

Every certificate of the Speaker under this sub-section shall be conclusive for all purposes and shall not be questioned in any Court of law.” [p. 194]

In that case, it was found that Section 41 of the Bribery Amendment Act, 1958 made a provision for appointment of a panel by the Governor-General on the advice of the Minister of Justice for selecting members of the Bribery Tribunal while Section 55 of the Constitution vested the appointment, transfer, dismissal and disciplinary control of judicial officers in the Judicial Service Commission. It was held that the legislature had purported to pass a law which, being in conflict with Section 55 of the Order in Council, must be treated, if it is. to be valid, as an implied alteration of the Constitutional provisions about the appointment of judicial officers and could only be made by laws which comply with the special legislative procedure laid down in Section 29(4). Since there was nothing to show that the Bribery Amendment Act, 1951 was passed by the necessary two-thirds majority, it was held that “any Bill which does not comply with the condition precedent of the proviso, is and remains, even though it receives the Royal Assent, invalid and ultra vires”. Applying the doctrine of severability the Judicial Committee, however, struck down the offending provision, i.e. Section 41 alone. In other words passing of the Bill by a special majority was the condition precedent for presentation of the Bill for the assent. Disregard of such a condition precedent for presenting a Bill for assent did not result in the entire enactment being vitiated and the law being declared invalid in its entirety but it only had the effect of invalidation of a particular provision which offended against the limitation on the amending power. A comparison of the language used in clause (4) of Section 29 with that of Article 368(2) would show that both the provisions bear a general similarity of purpose and both the provisions require the passing of the Bill by special majority before it was presented for assent. The same principle would, therefore, apply while considering the validity of a composite amendment which makes alterations in the First and Fourth Schedules as well as in other provisions of the Constitution requiring special majority under Article 368(2) and such a law, even 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. There is really no difference in principle between the condition requiring passing of the Bill by a special majority before its presentation to the President for assent contained in Article 368(2) and the condition for ratification of the amendment by the legislatures of not less than one-half of the States before the Bill is presented to the President for assent contained in the proviso. 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 require such ratification and by application of the doctrine of severability, the amendment can be upheld in respect of the amendments which do not require ratification and which are within the competence of Parliament alone. Only these amendments in provisions which require ratification under the proviso need to be struck down or declared invalid.

32. The test of severability requires the Court to ascertain whether the legislature would at all have enacted the law if the severed part was not the part of the law and whether after severance what survives can stand independently and is workable. If the provisions of the Tenth Schedule are considered in the background of the legislative history, namely, the report of the ‘Committee on Defections’ as well as the earlier Bills which were moved to curb the evil of defection it would be evident that the main purpose underlying the constitutional amendment and introduction of the Tenth Schedule is to curb the evil of defection which was causing immense mischief in our body-politic. The ouster of jurisdiction of Couts 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 Schedule if it had known that Paragraph 7 was not valid. Nor can it be said that the rest of the provisions of the Tenth Schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 can, therefore, be held to be severable from the rest of the provisions.

We accordingly hold on contentions ‘C’ and ‘D’:

“That there is nothing in the said proviso to Article 368(2) which detracts 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.

That, accordingly, the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, to the extent of its provisions which are amenable to the legal-sovereign of the amending process of the Union Parliament cannot be overborne by the proviso which cannot operate in that area. There is no justification for the view that even the rest of the provisions of the Constitution (52nd Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368(2) was not so ratified.

That Paragraph 7 of the Tenth Schedule contains a provision which is 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 defections 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 are not truncated by the excision of Paragraph 7.

33. Re:Contentions ‘E’ and ‘F’:

These two contentions have certain overlapping areas between them and admit of being dealt with together. Paragraph 6(1) of the Tenth Schedule seeks to impart a statutory finality to the decision of the Speaker or the Chairman. The argument is that, this concept of ‘finality’ by itself, excludes Courts’ jurisdiction. Does the word “final” render the decision of the Speaker immune from Judicial Review? It is now well accepted that a finality clause is not a legislative magical incantation which has that effect of telling off Judicial Review. Statutory finality of a decision presupposes and is subject to its consonance with the statute. On the meaning and effect of such finality clause, Prof. Wade in ‘Administrative Law’ 6th Edn. at page 720 says:

“Many statutes provide that some decision shall be final. That provision is a bar to any appeal. But the Courts refuse to allow it to hamper the operation of judicial review. As will be seen in this and the following sections, there is a firm judicial policy against allowing the rule of law to be undermined by weakening the powers of the Court. Statutory restrictions on judicial remedies are given the narrowest possible construction, sometimes even against the plain meaning of the words. This is a sound policy, since otherwise administrative authorities and tribunals would be given uncontrollable power and could violate the law at will. ‘Finality is a good thing but justice is a better’.

“If a statute says that the decision ‘shall be final’ or ‘shall be final and conclusive to all intents and purposes’ this is held to mean merely that there is no appeal:judicial control of legality is unimpaired. “Parliament only gives the impress of finality to the decisions of the tribunal on condition that they are reached in accordance with the law. This has been the consistent doctrine for three hundred years.”

Learned Professor further says:

“The normal effect of a finality clause is therefore to prevent any appeal. There is no right of appeal in any case unless it is given by statute. But where there is general provision for appeals, for example, from quarter sessions to the High Court by case stated, a subsequent Act making the decision of quarter session final on some specific matter will prevent an appeal. But in one case the Court of Appeal has deprived a finality clause of part even of this modest content, holding that a question which can be resolved by certiorari or declaration can equally well be the subject of a case stated, since this is only a matter of machinery. This does not open the door to appeals generally, but only to appeals by case stated on matters which could equally well be dealt with by certiorari or declaration, i.e., matters subject to judicial review.

“A provision for finality may be important in other contexts, for example when the question is whether the finding of one tribunal may be reopened before another, or whether an interlocutory order is open to appeal………………..”

                                                                                         [page 721 ]

Lord Devlin had said “Judicial interference with the executive cannot be long greatly exceed what Whitehall will accept” and said that a decision may be made un-reviewable “and that puts the lid on”. Commenting on this Prof. Wade says:”But the Anisminic case showed just the opposite, when the House of Lords removed the lid and threw it away.” [See:Constitutional Fundamental, the Hamlyn Lectures, 1989 Edn. p. 88].

In Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520, the order of the Election Tribunal was made final and conclusive by S. 105 of the Representation of the People Act, 1951. The contention was that the finality and conclusiveness clauses barred the jurisdiction of the Supreme Court under Article 136. This contention was repelled. It was observed:

“………but once it is held that it is a judicial tribunal empowered and obliged to deal judicially. with disputes arising out of or in connection with election, the overriding power of this Court to grant special leave, in proper cases, would certainly be attracted and this power cannot be excluded by any parliamentary legislation.

………..But once that Tribunal has made any determination or adjudication on the matter, the powers of this Court to interfere by way of special leave can always be exercised.

……….The powers given by Article 136 of the Constitution, however, are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court of the land ……..

Section 105 of the Representation of the People Act certainly gives finality to the decision of the Election Tribunal so far as that Act is concerned and does not provide for any further appeal but that cannot in any way cut down or affect the overriding powers which this Court can exercise in the matter of granting special leave under Art. 136 of the Constitution.”

                                                                                                    [p. 522]

34. Again, in Union of India v. Jyothi Prakash Mitter, (1971) 3 SCR 483 a similar finality clause in Article 217(3) of the Constitution came up for consideration. This Court said:

“…………….The President acting under Article 217(3) performs a judicial function of grave importance under the scheme of our Constitution. He cannot act on the advice of his Ministers. Notwithstanding the declared finality of the order of the President the Court has jurisdiction in appropriate cases to set aside the order, if it appears that it was passed on collateral considerations or the rules of natural justice were not observed, or that the President’s judgment was coloured by the advice or representation made by the executive or it was founded on no evidence …………”

                                                                            [p. 505 (of SCR):].

Referring to the expression “final” occurring in Article 311(3) of the Constitution this Court in Union of India v. Tulsiram Patel, 1985 Supp (2) SCR. 131 at page 274 held:

“……………The finality given by clause (3) of Article 311 to the disciplinary authority’s decision that it was not reasonably practicable to hold the inquiry is not binding upon the Court. The Court will also examine the charge of mala fides, if any, made in the writ petition. In examining the relevancy of the reasons, the Court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. If the Court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b) …………”

35. If the intendment is to exclude the jurisdiction of the superior Courts, the language would quite obviously have been different. Even so, where such exclusion is sought to be effected by an amendment the further question whether such an amendment would be destructive of a basic feature of the Constitution would arise. But comparison of the language in Article 363(1) would bring out in contrast the kind of language that may be necessary to achieve any such purpose.

In Brundaban Nayak v. Election Commission of India, (1965) 3 SCR 53 , in spite of finality attached by Article 192 to the decision of the Governor in respect of disqualification incurred by a member of a State Legislature subsequent to the election, the matter was examined by this Court on an appeal by special leave under Article 136 of the Constitution against the decision of the High Court dismissing the writ petition filed under Article 226 of the Constitution. Similarly in Union of India v. Jyoti Prakash Mitter, (1971) 3 SCR 483 , in spite of finality attached to the order of the President with regard to the determination of age of a Judge of the High Court under Article 217 (3) of the Constitution, this Court examined the legality of the order passed by the President during the pendency of an appeal filed under Article 136 of the Constitution.

There is authority against the acceptability of the argument that the word “final” occurring in Paragraph 6(1) has the effect of excluding the jurisdiction of the Courts in Articles 136, 226 and 227.

36. The cognate questions are whether a dispute of the kind envisaged by Paragraph 6 of the Tenth Schedule is in a non-justiciable area and that, at all events, the fiction in Paragraph 6(2) that all proceedings under Paragraph 6(1) of the Tenth Schedule be deemed to be “proceedings in Parliament” or “Proceedings in the Legislature of a State” attracts immunity from the scrutiny by Courts as under Article 122 or 212, as the case may be.

Implicit in the first of these postulates is the premise that question of disqualification of members of the House are essentially matters pertaining to the Constitution of the House and, therefore, the Legislature is entitled to exert its exclusive power to the exclusion of the judicial power. This assumption is based on certain British legislature practices of the past in an area which is an impalpable congeries of legal rules and conventions peculiar to and charateristic of British Parliamentary traditions. Indeed, the idea appears to have started with the proposition that the Constitution of the House was itself a matter of privilege of the House. Halsbury contains this statement:

“1493. Privilege of the House of Commons in relation to its constitution:In addition to possessing a complete control over the regulation of its own proceedings and the conduct of its members, the House of Commons claims the exclusive right_ of providing, as it may deem fit, for its own proper constitution.”

                                                                          (emphasis supplied)

[See:Halsbury’s Laws of England, 4th Edn. Vol. 34 pages 603 and 604]

But in the Indian Constitutional dispensation the power to decide a disputed disqualification of an elected member of the House is not treated as a matter of privilege and the power to resolve such electoral disputes is clearly judicial and not legislative in nature. The fact that election disputes were at some stage decided by the House of Commons itself was not conclusive that even their power was legislative. The controversy, if any, in this area is put at rest by the authoritative earlier pronouncements of this Court.

37. In Indira Nehru Gandhi v Raj Narain, (1976) 2 SCR 347 , Beg J., referring to the historical background relating to the resolution of electoral disputes by the House of Commons said:

“I do not think that it is possible to contend, by resorting to some concept of a succession to the powers of the medieval “High Court of Parliament” in England, that a judicial power also devolved upon our Parliament through the Constituent Assembly, mentioned in Section 8 of the Indian, Independence Act of 1947. As already indicated by me, the Constituent Assembly was invested with law making and not judicial powers. Whatever judicial power may have been possessed once by English Kings, sitting in Parliament, constituting the highest Court of the realm in medieval England, have devolved solely on the House of Lords as the final Court of appeal in England. “King in Parliament” had ceased to exercise judicial powers in any other way long before 1950. And, the House of Commons had certainly not exercised a judicial power as a successor to the one time jurisdiction of the “King in Parliament” with the possible exception of the power to punish for its contempts …………”

                                                             [pp. 627 and 628 (of SCR):]

In the same case, Justice Mathew made these observations as to the imperative judicial nature of the power to resolve disputes:

“The concept of democracy as visualised by the Constitution presupposes the representation of the people in Parliament and State Legislatures by the method of election. And, before an election machinery can be brought into operation, there are three requisites which require to be attended to, namely, (1) there should be a set of laws and rules making provisions with respect to all matters relating to, or in connection with, elections, and it should be decided as to how these laws and rules are to be made; (2) there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should, be a judicial tribunal to deal with disputes arising out of or in connection with elections ……………”

                                                                             [p. 504 (or SCR) ]

“In whichever body or authority, the jurisdiction is vested, the exercise of the jurisdiction must be judicial in character. This Court has held that in adjudicating an election dispute an authority is performing a judicial function and a petition for leave to appeal under Article 136 of the Constitution would lie to this Court against the decision notwithstanding the provisions of Article 329(b).”

                                                                          (Emphasis supplied)

                                                                             [p. 506 (of SCR):]

It is also useful to recall the following observations of Gajendragadkar J., on the scope of Article 194(3) of the Constitution, which is analogous to Article 105(3) in Special Reference No. 1 of 1964 (1965) 1 SCR 413:

“This clause requires that the powers, privileges and immunities which are claimed by the House must be shown to have subsisted at the commencement of the Constitution, i.e., on January 26, 1950. It is well-known that out of a large number of privileges and powers which the House of Commons claimed during the days of its bitter struggle for recognition, some were given up in course of time, and some virtually faded out by desuetude; and so, in every case where a power is claimed, it is necessary to enquire whether it was an existing power at the relevant time. It must also appear that the said power was not only claimed by the House of Commons, but was recognised by the English Courts. It would obviously be idle to contend that if a particular power which is claimed by the House was claimed by the House of Commons but was not recognised by the English Courts, it would still be upheld under the latter part of clause (3) only on the ground that it was in fact claimed by the House of Commons. In other words, the inquiry which is prescribed by this clause is:is the power in question shown or proved to have subsisted in the House of Commons at the relevant time?”

[See page 442 (of SCR):]

This question is answered by Beg, J. in Indira Nehru Gandhi’s case (supra):

“I think, at the time our Constitution was framed, the decision of an election dispute had ceased to be a privilege of the House of Commons in England and therefore, under Article 105(3), it could not be a privilege of Parliament in this country.”

                                                                             [p. 505 (of SCR):]

38. Indeed, in dealing with the disqualifications and the resolution of disputes relating to them under Articles 191 and 192 or Articles 102 and 103, as the case may be, the Constitution has evinced a clear intention to resolve elect oral-disputes by resort to the judicial power of the State. Indeed, Justice Khanna in Indira Nehru Gandhi’s case (supra) said:

“Not much argument is needed to show that unless there be a machinery for resolving an election dispute and for going into the allegations that elections were not free and fair being vitiated by malpractices, the provision that a candidate should not resort to malpractices would be in the nature of a mere pious wish without any legal sanction. It is further plain that if the validity of the election declared to be valid only if we provide a forum for going into those grounds and prescribe a law for adjudicating upon those grounds …….”

                                                                 (See page 468 (of SCR):)

It is, therefore, inappropriate to claim that the determinative jurisdiction of the Speaker or the Chairman in the Tenth Schedule is not a judicial power and is within the non-justiciable legislative area. The classic exposition of Justice Issacs J., in Australian Boot Trade Employees Federation v. Whybrow and Co., (1910) 10 CLR 266 at page 317, as to what distinguishes a judicial power from a legislative power was referred to with the approval of this Court in Express Newspaper Ltd. v. Union of India, AIR 1958 SC 578 at page No. 611. Issacs J., stated:

“If the dispute is as to the relative rights of parties as they rest on past or present circumstances, the award is in the nature of a judgment, which might have been the decree of an ordinary judicial tribunal acting under the ordinary judicial power. There the law applicable to the case must be observed. If, however, the dispute is as to what shall in the future be the mutual rights and responsibilities of the parties – in other words, if no present rights are asserted or denied, but a future rule of conduct is to be prescribed, thus creating new rights and obligations, with sanctions for non-conformity then the determination that so prescribes, call it an award, or arbitration, determination, or decision or what you will, is essentially of a legislative character, and limited only by the law which authorises it. If, again, there are neither present rights asserted, nor a future rule of conduct prescribed, but merely a fact ascertained necessary for the practical effectuation of admitted rights, the proceeding, though called an arbitration, is rather in the nature of an appraisement or ministerial act.”

In the present case, the power to decide disputed disqualification under Paragraph 6(1) is preeminently of a judicial complexion.

39. The fiction in Paragraph 6(2), indeed, places it in the first clause of Article 122 or 212, as the case may be. The words “proceedings in Parliament” or “proceedings in the legislature of a State” in Paragraph 6(2) have their corresponding expression in Articles 22(1) and 212(1) respectively. This attracts an immunity from mere irregularities of procedures.

That apart, even after 1986 when the Tenth schedule was introduced, the Constitution did not evince any intention to invoke Article 122 or 212 in the conduct of resolution of disputes as to the disqualification of members under Articles 191(1) and 102(1). 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.

40. But then is the Speaker or the Chairman acting under Paragraph 6(1) a Tribunal? “All tribunals are not Courts, though all Courts are Tribunals.” 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 vinculum juris, which is disturbed. [See Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala, (1962) 2 SCR 339 ]. In that case Hidayatullah, J. said:

“………By “Courts” is meant Courts of civil judicature and by “tribunals”, those bodies of men who are appointed to decide controversies arising under certain special laws. Among the powers of the State is included the power to decide such controversies. This is undoubtedly one of the attributes of the State and is aptly called the judicial power of the State. In the exercise of this power, a clear division is thus noticeable. Broadly speaking, certain special matters go before tribunals, and the residue goes before the ordinary Courts of civil judicature. Their procedures may differ, but the functions are not essentially different. What distinguishes them has never been successfully established. Lord Stamp said that the real distinction is that the Courts have “an air of detachment”. But this is more a matter of age and tradition, and is not of the essence. Many tribunals, in recent years, have acquitted themselves so well and with such detachment as to make this test insufficient.”

                                                                             [p. 362 (of SCR):]

Where there is a lis – 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. In Associated Cement Companies Ltd. v. P. N. Sharma, (1965) 2 SCR 366 , this Court said:

“………..The main and the basic test, however, is whether the adjudicating power which a particular authority is empowered to exercise, has been conferred on it by a statute and can be described as a part of the State’s inherent power exercised in discharging its judicial function. Applying this test, there can be no doubt that the power which the State Government exercises under R. 6(5) and R. 6(6) is a part of the State’s judicial power……..There is, in that sense, a lis; there is affirmation by one party and denial by another, and the dispute necessarily involves the rights and obligations of the parties to it. The order which the State Government ultimately passes is described as its decision and it is made final and binding ……..”

                                                              [pp. 386 and 387 (of SCR)]

By these well known and accepted tests of what constitute a Tribunal, the speaker or the Chairman, acting under paragraph 6(1) of the Tenth Schedule is a Tribunal.

41. In the operative conclusions we pronounced on 12th November, 1991 we indicated in clauses G and H therein that judicial review in the area is limited in the manner indicated. If the adjudicatory authority is a tribunal, as indeed we have held it to be, why, then, should its scope be so limited? The finality clause in paragraph 6 does not completely exclude the jurisdiction of the Courts under Articles 136, 226 and 227 of the Constitution. But it does have the effect of limiting the scope of the jurisdiction. 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. Such 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 to take such an action. It will also be ultra vires the powers conferred on the authority if it is vitiated by mala fides or is colourable exercise of power based on extraneous and irrelevant considerations. While exercising their certiorari jurisdiction, the Courts have applied the test whether the impugned action falls within the jurisdiction of the authority taking the action or it falls outside such jurisdiction’. An ouster clause confines judicial review in respect of actions falling outside the jurisdiction of the authority taking such action but 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. An ouster clause attaching finality to a determination, therefore, does oust certiorari to some extent and it will be effective in ousting the power of the Court to review the decision of an inferior tribunal by certiorari if the inferior tribunal has not acted without jurisdiction and has merely made an error of law which does not affect its jurisdiction ‘and if its decision is not a nullity for some reason such as breach of rule of natural justice. [See:Administrative Law by H.W.R. Wade, 6th Edn., pp. 724-726; Anisminic Ltd. v. Foreign Compensation, (1969) 2 AC 147; S. E. Asia Fire Bricks v. Non-Metallic Products, 1981 AC 363].

In Makhan Singh v. State of Punjab, (1964) 4 SCR 797 , while considering the scope of judicial review during the operation of an order passed by the President under Article 359(1) suspending the fundamental right guaranteed under Article 21 of the Constitution, it has been held that the said order did not preclude the High Court entertaining a petition under Article 226 of the Constitution where a detenu had been detained in violation of the mandatory provisions of the detention law or where the detention has been ordered mala fide. It was emphasised that the exercise of a power mala fide was wholly outside the scope of the Act conferring the power and can always be successfully challenged. (p. 828).

Similarly in State of Rajasthan v. Union of India, (1978) 1 SCR 1 , decided by a seven Judge Bench, this Court was considering the challenge to the validity of a proclamation issued by the President of India under Article 356 of the Constitution. At the relevant time under clause (5) of Article 356, the satisfaction of the President mentioned in clause (1) was final and conclusive and it could not be questioned in any Court on any ground. All the learned Judges have expressed the view that the proclamation could be open to challenge if it is vitiated by mala fides. While taking this view, some of the learned Judges have made express reference to the provisions of clause (5).

In this context, Bhagwati, J. (as the learned Chief Justice then was) speaking for himself and A. C. Gupta, J. has stated:

“Of course by reason of cl. (5) of Art. 356, the satisfaction of the President is final and conclusive and cannot be assailed on any ground but this immunity from attack cannot apply where the challenge is not that the satisfaction is improper or unjustified, but that there is no satisfaction at all. In such a case it is not the satisfaction arrived at by the President which is challenged, but the existence of the satisfaction itself. Take, for example, a case where the President gives the reason for taking action under Art. 356, cl. (1) and says that he is doing so, because the Chief Minister of the State is below five feet in height and, therefore, in his opinion a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Can the so-called satisfaction of the President in such a case not be challenged on the ground that it is absurd or perverse or mala fide or based on a wholly extraneous and irrelevant ground and is, therefore, no satisfaction at all.” (pp. 82-83) (of SCR):.)

Untwalia, J. has held as follows:

“I, however, must hasten to add that I cannot persuade myself to subscribe to the view that under no circumstances an order of proclamation made by the President under Article 356 can be challenged in a Court of Law. And, I am saying so notwithstanding the provision contained in clause (5) of the said Article introduced by the Constitution (38th Amendment) Act, 1975.” (p. 94) (of SCR):.

“But then, what did I mean by saying that a situation may arise in a given case where the jurisdiction of the Court is not completely ousted? I mean this. If, without entering into the prohibited area, remaining on the fence, almost on the face of the impugned order or the threatened action of the President it is reasonably possible to say that in the eye of law it is no order or action as it is in flagrant violation of the very words of a particular Article, justifying the conclusion that the order is ultra vires, wholly illegal or passed mala fide, in such a situation it will be tantamount in law to be no order at all. Then this Court is not powerless to interfere with such an order and may, rather, must strike it down.” (p. 95) (of SCR):.

Similarly, Fazal Ali, J. has held:

“Even if an issue is not justiciable, if the circumstances relied upon by the executive authority are absolutely extraneous and irrelevant, the Courts have the undoubted power to scrutinise power. Such a judicial scrutiny is one which comes into operation when the exercise of the executive power is colourable or mala fide and based on extraneous or irrelevant considerations.” (p. 116) (of SCR):.

“It is true that while an order passed by the President under Article 356 is put beyond judicial scrutiny by cl. (5) of Art. 356, but this does not mean that the Court possesses no jurisdiction in the matter at all. Even in respect of cl. (5) of Art. 356, the Courts have a limited sphere of operation in that on the reasons given by the President in his order if the Courts find that they are absolutely extraneous and irrelevant and based on personal and illegal considerations the Courts are not powerless to strike down the order on the ground of mala fide if proved.” (p. 120) (of SCR):.

In Union of India v. Jyoti Prakash Mitter, (supra), dealing with the decision of the President under Article 217(3) on the question as to the age of a Judge of the High Court, requiring a judicial approach it was held that the field of judicial review was enlarged to cover violation. of rules of natural justice as well as an order based on no evidence because such errors are errors of jurisdiction.

In Union of India v. Tulsiram Patel, (supra) this Court was dealing with Article 311(3) of the Constitution which attaches finality to the order of the disciplinary authority on the question whether it was reasonably practicable to hold an inquiry. It was observed that though the ‘finality’ clause did not bar jurisdiction it did indicate that the jurisdiction is limited to certain grades.

In the light of the decisions referred to above and the nature of function that is exercised by the Speaker/ Chairman under paragraph 6, the scope of judicial review under Articles 136 and 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., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.

In view of the limited scope of judicial review that is available on account of the finality clause in paragraph 6 and also having regard to the constituional intendment and the status of the repository of the adjudicatory power i.e. Speaker/ Chairman, 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. Exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequences.

42. In the result, we hold on contentions E and F:

That the Tenth Schedule does not, in providing for an additional grant for disqualification and for adjudication of disputed disqualifications, seek to create a non-justiciable constitutional area. The power to resolve such disputes vested in the Speaker or Chairman is a judicial power.

That paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speaker/ Chairman is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity are concerned.

That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as understood and explained in Keshav Singh’s Case (supra) to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words “be deemed to be proceedings in Parliament” or “proceedings in the Legislature of a State” confines the scope of the fiction accordingly.

The Speakers/ Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review.

However, having regard to the Constitutional Schedule in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/ Chairmen. Having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repurcussions and consequences.

43. Re:Contention (G):

The argument is that an independent adjudicatory machinery for resolution of electoral disputes is an essential incident of democracy, which is a basic feature of Indian constitutionalism. It is urged that investiture of the power of resolving such disputes in the Speaker or the Chairman does not answer this test of an independent, impartial quality of the adjudicatory machinery. It is, therefore, urged that Paragraph 6(1) of the Tenth Schedule is violative of a basic feature.

It is also urged that a Speaker, under the Indian Parliamentary tradition is not required to resign his membership of the political party on whose strength he gets elected and that inevitably the decision of the Speaker is not free from the tugs and pulls of political polarisations. It is urged that the Speaker who has not resigned his membership of the political party cannot be impartial and, at all events, his functioning will not be free from reasonable likelihood of bias.

44. The Tenth Schedule breaks away from the constitutional pattern for resolution disqualifications envisaged in Articles 103 and 192 of the Constitution which vest jurisdiction in this behalf in the President or the Governor acting according to the opinion of Election Commission. The disqualifications for defection could very well have been included in Article 102(1) or 191(1) as a ground, additional to the already existing grounds under clauses (a) to (e) in which event, the same dispute resolution machinery would have dealt with the disqualifications for defections also. But the Tenth Schedule, apparently, attempted a different experiment in respect of this particular ground of disqualification.

45. The question is, whether the investiture of the determinative jurisdiction in the Speaker would by itself stand vitiated as denying the idea of an independent adjudicatory authority. We are afraid the criticism that the provision incurs the vice of unconstitutionality ignores the high status and importance of the office of the Speaker in a Parliamentary democracy. The office of the Speaker is held in the highest respect and esteem in Parliamentary traditions. The evolution of the institution of Parliamentary democracy has as its pivot the institution of the Speaker. ‘The Speaker holds a high, important and ceremonial office. All questions of the well being of the House are matters of Speaker’s concern’. The Speaker is said to be the very embodiment of propriety and impartiality. He performs wide ranging functions including the performance of important functions of a judicial character.

Mavalankar, who was himself a distinguished occupant of that high office, says:

“In parliamentary democracy, the office of the Speaker is held in very high esteem and respect. There are many reasons for this. Some of them are purely historical and some are inherent in the concept of parliamentary democracy and the powers and duties of the Speaker. Once a person is elected Speaker, he is expected to be above parties, above politics. In other words, he belongs to all the members or belongs to none. He holds the scales of justice evenly irrespective of party or person, though no one expects that he will do absolute justice in all matters; because, as a human being he has his human drawbacks and shortcomings. However, everybody knows. that he will intentionally do no injustice or show partiality:”Such a person is naturally held in respect by all.”

[See G. V. Mavalankar:The Office of Speaker, Journal of Parliamentary Information, April 1956, Vol. 2, No. 1, p. 331.

Pandit Nehru referring to the office of the Speaker said:

“……..The Speaker represents the House. He represents the dignity of the House, the freedom of the House and because the House represents the nation, in a particular way, the Speaker becomes the symbol of the nation’s freedom and liberty. Therefore, it is right that that should be an honoured position, a free position and should be occupied always by men of outstanding ability and impartiality.”

[See:HOP. Deb. Vol. IX (1954), CC 3447-48].

Referring to the Speaker, Erskine May says:

“The Chief characteristics attaching to the office of Speaker in the House of Commons are authority and impartiality. As a symbol of his authority he is accompanied by the Royal Mace which is borne before him when entering and leaving the chamber and upon state occasions by the Serjeant at Arms attending the House of Commons, and is placed upon the table when he is in the chair. In debate all speeches are addressed to him and he calls upon Members to speak – a choice which is not open to dispute. When he rises to preserve order or to give a ruling on a doubtful point he must always be heard in silence and no Member may stand when the Speaker is on his feet. Reflections upon the character or actions of the Speaker may be punished as breaches of privilege. His action cannot be criticised incidentally in debate or upon any form of proceeding except a sub-stantive motion. His authority in the chair is fortified by many special powers which are referred to below. Confidence in the impartiality of the Speaker is an indepensable condition of the successful working of procedure, and many conventions exist which have as their object not only to ensure the impartiality of the Speaker but also to ensure that his impartiality is generally recognised……….”

[See:Erskine May – Parliamentary Practice – 20th edition p. 234 and M. N. Kaul and S. L. Shakdher in ‘Practice and Procedure of Parliament’ 4th Edition, say:

“The all important conventional and ceremonial head of Lok Sabha is the Speaker. Within the walls of the House his authority is supreme. This authority is based on the Speaker’s absolute and. unvarying impartiality – the main feature of his office, the law of its life. This obligation of impartiality appears in the constitutional provision which ordains that the Speaker is entitled to vote only in the case of equality of votes. Moreover, his impartiality within the House is secured by the fact that he remains above all considerations of party or political career, and to that effect he may also resign from the party to which he belonged.”

                                                                                               [p. 104]

46. 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 office of the Speaker, merely because some of the 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.

47. Accordingly, we hold that the vesting of adjudicatory functions in the Speakers/ Chairmen would not by itself vitiate the provision on the ground of likelihood of political bias is unsound and is rejected. The Speakers/ Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far-reaching decisions in the functioning of Parliamentary democracy. Vestiture of power of (to) adjudicate questions under the Tenth Schedule in such a constitutional functionaries should not be considered exceptionable.

48. Re:Contention H:

In the view we take of the validity of paragraph 7 it is unnecessary to pronounce on the contention whether judicial review is a basic feature of the Constitution and paragraph 7 of the Tenth Schedule violates such basic structure.

49. We may now notice one other contention as to the construction of the expression ‘any direction’ occurring in paragraph 2(1)(b). It is argued that if the expression really attracts within its sweep every direction or whip of any kind whatsoever it might be unduly restrictive of the freedom of speech and the right of dissent and that, therefore, should be given a meaning limited to the objects and purposes of the Tenth Schedule. Learned counsel relied upon and commended to us the view taken by the minority in the Full Bench decision of Punjab and Haryana High Court in Parkash Singh Badal v. Union of India, AIR 1987 Punj and Har 263, where such a restricted sense was approved. Tewatia J. said:

“If the expression:”any direction” is to be literally construed then it would make the people’s representative a wholly political party’s representative, which decidedly he is not. The Member would virtually lose his identity and would become a rubber stamp in the hands of his political party. Such interpretation of this provision would cost it, its constitutionality, for in that sense it would become destructive of democracy/ parliamentary democracy, which is the basic feature of the Constitution. Where giving of narrow meaning and reading down of the provision can save it from the vice of unconstitutionality the Court should read it down particularly when it brings the provision in line with the avowed legislative intent ………”

“………the purpose of enacting paragraph 2 could be no other than to insure stability of the democratic system, which in the context of Cabinet/ Parliamentary form of Government on the one hand means that a political party or a coalition of political parties which has been voted to power is entitled to govern till the next election, and on the other, that opposition has a right to censure the functioning of the Government and even overthrow it by voting it out of power if it had lost the confidence of the people, then voting or abstaining from voting by a Member contrary to any direction issued by his party would by necessary implication envisage voting or abstaining from voting in regard to a motion or proposal, which if failed, as a result of lack of requisite support in the House would result in voting the Government out of power, which consequence necessarily follows due to well established constitutional convention only when either a motion of no confidence is passed by the House or it approves a cut motion in budgetary grants. Former because of the implications of Article 75(3) of the Constitution and latter because no Government can function without money and when Parliament declines to sanction money, then it amounts to an expression of lack of confidence in the Government. When so interpreted the clause (b) of sub-paragraph (1) of paragraph 2 would leave the Members free to vote according to their views in the House in regard to any other matter that comes up before it.”

                                                                              [pp. 313 and 314]

The reasoning of the learned Judge that a wider meaning of the words “any direction” would ‘cost it its constitutionality’ does not commend to us. But we approve the conclusion that these words require to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Tenth Schedule. Those objects and purposes define and limit the 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 harmonious construction in the context. There is no justification to give the words the wider meaning.

While construing Paragraph 2(1)(b) it cannot be ignored that under the Constitution members of Parliament as well as of the State 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 House [Art. 105(1) and Art. 194(1)]. The disqualification imposed by Paragraph, 2(1)(b) must be so construed as not to unduly impinge on the said freedom of speech of member. This would be possible if Paragraph 2(1)(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 mischief of political defections’ motivated by the lure of office or other similar considerations. The said object would be achieved if the disqualification incurred on the ground of voting or abstaining from voting by a member is confined to cases where a change of Government is likely to be brought about or is prevented, as the case may be, as a result of such voting or abstinence or when such voting or abstinence is on a matter which was a major policy and programme on which the political party to which the member belongs went to the polls. For this purpose the direction given by the political party to a member belonging to it, the violation of which may entail disqualification under Paragraph 2(1)(b), would have to be limited to a vote on motion of confidence or no confidence in the Government or where the motion under consideration relates to a matter which was an integral policy and programme of the political party on the basis of which it approached the electorate. The voting or abstinence from voting by a member against the direction by the political party on such a motion would amount to disapproval of the programme on the basis of which he went before the electorate and got himself elected and such voting or abstinence would amount to a breach of the trust reposed in him by the electorate.

Keeping in view the consequences of the disqualification i.e., termination of the membership of a House; it would be appropriate that the direction or whip which results in such disqualification under Paragraph 2(1)(b) is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the disqualification under Paragraph 2(1)(b) of the Tenth Schedule so that the member concerned has fore-knowledge of the consequences flowing from his conduct in voting or abstaining from voting contrary to such a direction.

50. There are some submissions as to the exact import of a “split” – whether it is to be understood an instantaneous, one time event or whether a “split” can be said to occur over a period of time. The hypothetical poser was that if one-third of the members of a political party in the legislature broke-away from it on a particular day and a few more members joined the splinter group a couple of days later would the latter also be a part of the ‘split’ group. This question of construction cannot be in vacuuo. In the present cases, we have dealt principally with constitutional issues. The meaning to be given to “split” must necessarily be examined in a case in which the question arises in the context of its particular facts. No hypothetical predictions can or need be made. We, accordingly, leave this question open to be decided in an appropriate case.

51. Before parting with the case, we should advert to one other circumstance. During the interlocutory stage, the constitution bench was persuaded to make certain interlocutory orders which, addressed as they were to the Speaker of the House, (though, in a different capacity as an adjudicatory forum under the Tenth Schedule) engendered complaints of disboedience culminating in the filing of petitions for initiation of proceedings of contempt against the Speaker. It was submitted that when the very question of jurisdiction of the Court to deal with the matter was raised and even before the constitutionality of Paragraph 7 had been pronounced upon, self restraint required that no interlocutory orders in a sensitive area of the relationship between the legislature and the Courts should have been made.

The purpose of interlocutory orders is to preserve in status quo the rights of the parties, so that, the proceedings do not become infructuous by any unilateral overt acts by one side or the other during its pendency. One of the contention urged was as to the invalidity of the amendment for non-compliance with the proviso to Article 368(2) of the Constitution. It has now been unanimously held that Paragraph 7 attracted the proviso to Article 368(2). The interlocutory orders in this case were necessarily justified so that, no landslide changes were allowed to occur rendering the proceedings ineffective and infructuous.

52. With the finding and observations as aforesaid W.P. No. 17 of 1991 is dismissed. Writ petition in Rule No. 2421 of 1990 in the High Court of Gauhati is remitted back to the High Court for disposal in accordance with law and not inconsistent with the findings and observations contained in this order.

53. Verma, J—This matter relating to disqualification on the ground of defection of some members of the Nagaland Legislative Assembly under the Tenth Schedule inserted by the Constitution (Fifty-Second Amendment) Act, 1985, was heard along with some other similar matters relating to several Legislative Assemblies including those of Manipur, Meghalaya, Madhya Pradesh, Gujarat and Goa, since all of them involved the decision of certain constitutional questions relating to the constitutional validity of para 7 of the Tenth Schedule and consequently the validity of the Constitution (Fifty-Second Amendment) Act, 1985 itself. At the hearing, several learned counsel addressed us on account of which the hearing obviously took some time. Even during the course of the hearing, the actions of some Speakers tended to alter the status quo, in some cases resulting in irreversible consequences which could not be corrected in the event of para 7 of the Tenth Schedule being held invalid or the impugned orders of the Speakers being found justiciable and, on merits illegal and, therefore, the urgency increased of deciding the questions debated before us at the earliest. For this reason, we indicated during the course of the hearing that we would pronounce our operative conclusions soon after conclusion of the hearing with reasons therefor to follow. Accordingly, on conclusion of the hearing on November 1, 1991, we indicated that the operative conclusions would be pronounced by us at the next sitting of the Bench when it assembled on November 12, 1991 after the Diwali Vacation. The operative conclusions of the majority (Venkatachaliah, Reddy and Agrawal, JJ.) as well as of the minority (Lalit Mohan Sharma and J. S. Verma, JJ.) were thus pronounced on November 12, 1991. We are now indicating herein our reasons for the operative conclusions of the minority view.

54. The unanimous opinion according to the majority as well as the minority is that para 7 of the Tenth Schedule enacts a provision for complete exclusion of judicial review including the jurisdiction of the Supreme Court under Article 136 and of the High Courts under Articles 226 and 227 of the Constitution and, therefore, it makes in terms and in effect a change in Articles 136, 226 and 227 of the Constitution which attracts the proviso to clause (2) of Article 368 of the Constitution; and, therefore, ratification by the specified number of State Legislatures before the Bill was presented to the President for his assent was necessary, in accordance therewith. The majority view is that in the absence of such ratification by the State Legislatures, it is para 7 alone of the Tenth Schedule which is unconstitutional; and it being severable from the remaining part of the Tenth Schedule, para 7 alone is liable to be struck down rendering the Speakers’ decision under para 6 that of a judicial tribunal amenable to judicial review by the Supreme Court and the High Courts under Articles 136, 226 and 227. The minority opinion is that the effect of invalidity of para 7 of the Tenth Schedule is to invalidate the entire Constitution (Fifty-Second Amendment) Act, 1985 which inserted the Tenth Schedule since the President’s assent to the Bill without prior ratification by the State Legislatures is non est. The minority view also is that para 7 is not severable from the remaining part of the Tenth Schedule and the Speaker not being an independent adjudicatory authority for this purpose as contemplated by a basic feature of democracy, the remaining part of the Tenth Schedule is in excess of the amending powers being violative of a basic feature of the Constitution. In the minority opinion, we have held that the entire Constitution (Fifty-Second Amendment) Act, 1985 is unconstitutional and an abortive attempt to make the Constitutional Amendment indicated therein.

55. Before proceeding to give our detailed reasons, we reproduce the operative conclusions pronounced by us on Nov. 12, 1991 in the minority opinion (Lalit Mohan Sharma and J. S. Verma, JJ.) as under:

“For the reasons to be given in our detailed judgment to follow, our operative conclusions in the minority opinion on the various constitutional issues are as follows:

1. Para 7 of the Tenth Schedule, in clear terms and in effect, excludes the jurisdiction of all courts, including the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 to entertain any challenge to the decision under para 6 on any ground even of illegality or perversity, not only at an interim stage but also after the final decision on the question of disqualification on the ground of defection.

2. Para 7 of the Tenth Schedule, therefore, in terms and in effect, makes a change in Article 136 in Chapter IV of Part V; and Articles 226 and 227 in Chapter V of Part VI of the Constitution attracting the proviso to clause (2) of Article 368.

3. In view of para 7 in the Bill resulting in the Constitution (Fifty-Second Amendment) Act, 1985, it was required to be ratified by the Legislature of not less than one-half of the States as a condition precedent before the Bill could be presented to the President for assent in accordance with the mandatory special procedure prescribed in the proviso to clause (2) of Article 368 for exercise of the constituent power. Without ratification by the specified number of State Legislatures, the stage for presenting the Bill for assent of the President did not reach and, therefore, the so-called assent of the President was non est and did not result in the Constitution standing amended in accordance with the terms of the Bill.

4. In the absence, of ratification by the specified number of State Legislatures before presentation of the Bill to the President for his assent, as required by the proviso to clause (2) of Article 368, it is not merely para 7 but, the entire Constitution (Fifty-Second Amendment) Act, 1985 which. is rendered unconstitutional, since the constituent power was not exercised as prescribed in Article 368, and therefore, the Constitution did not stand amended in accordance with the terms of the Bill providing for the amendment.

5. Doctrine of Severability cannot be applied to a Bill making a constitutional amendment where any part thereof attracts the proviso to clause (2) of Article 368.

6. Doctrine of Severability is not applicable to permit striking down para 7 alone saving the remaining provisions of the Bill making the Constitutional Amendment on the ground that para7 alone attracts the proviso to clause (2) of Article 368.

7. Even otherwise, having regard to the provisions of the Tenth Schedule of the Constitution inserted by the Constitution(Fifty-second Amendment) Act, 1985, the Doctrine of Severability does not apply to it.

8. Democracy is a part of the basic structure of the Constitution and free and fair elections with provision for resolution of disputes relating to the same as also for adjudication of those relating to subsequent disqualification by an independent body outside the House are essential features of the democratic system in our Constitution. Accordingly, an independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House is envisaged as an attribute of this basic feature. The tenure of the Speaker who is the authority in the Tenth Schedule to decide this dispute is dependent on the continuous support of the majority in the House and, therefore, he (the Speaker) does not satisfy the requirement of such an independent adjudicatory authority; and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature.

9. Consequently, the entire Constitution (Fifty-Second Amendment) Act, 1985 which inserted the Tenth Schedule together with clause (2) in Articles 102 and 191, must be declared unconstitutional or an abortive attempt to so amend the Constitution.

10. It follows that all decisions rendered by the several Speakers under the Tenth Schedule must also be declared nullity and liable to be ignored. 11. On the above conclusions, it does not appear necessary or appropriate to decide the remaining questions urged.”

56. It is unnecessary in this judgment to detail the facts giving rise to the debate on the constitutional issues relating to the validity of the Tenth Schedule, more particularly para 7 therein, introduced by the Constitution (Fifty-Second Amendment) Act, 1985. Suffice it to say that these matters arise out of certain actions of the Speakers of several Legislative Assemblies under the Tenth Schedule. Arguments on these questions were addressed to us by several learned Counsel, namely, the learned Attorney General, S/ Shri A. K. Sen, Shanti Bhushan, M. C. Bhandare, F. S. Nariman, Soli J. Sorabjee, R. K. Garg, Kapil Sibal, M. R. Sharma, Ram Jethmalani, N. S. Hegde, O. P. Sharma, Bhim Singh and R. F. Nariman. It may be mentioned that some learned Counsel modified their initial stand to some extent as the hearing progressed by advancing alternative arguments as well. Accordingly, the several facets of each constitutional issue debated before us were fully focussed during the hearing. The main debate, however, was on the construction of paras 6 and 7 of the Tenth Schedule and the validity of the Constitutional Amendment. Arguments were also addressed on the. question of violation, if any, of any basic feature of the Constitution by the provisions of the Tenth Schedule.

57. The points involved in the decision of the constitutional issues for the purpose of our opinion may be summarised broadly as under:-

(A) Construction of para 6 of the Tenth Schedule. Its effect and the extent of exclusion of judicial review thereby.

(B) Construction of para 7 of the Tenth Schedule. Its effect and the extent of exclusion of judicial review thereby.

(C) In case of total exclusion of judicial review including the jurisdiction of Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution by the Tenth Schedule, does para 7 make a change in these Articles attracting the proviso to clause (2) of Article 368 of the Constitution?

(D) The effect of absence of prior ratification by the State Legislatures before the Bill making provisions for such amendment was presented to the President for assent, on the constitutional validity of the Tenth Schedule.

(E) Severability of para 7 from the remaining part of the Tenth Schedule and its effect on the question of constitutional validity of the Tenth Schedule.

(F) Violation of basic feature of the Constitution, if any, by the Tenth Schedule as a whole or any part thereof and its effect on the constitutionality for this reason.

(G) Validity of the Tenth Schedule with reference to the right of dissent of members with particular reference to Article 105.

58. As indicated by us in our operative conclusions pronounced earlier, we need not express our concluded opinion on the points argued before us which are not necessary for supporting the conclusion reached by us that the entire Tenth Schedule and consequently the Constitution (Fifty-Second Amendment) Act, 1985 is unconstitutional on the view we have taken on the other points. We are, therefore, giving our reasons only in respect of the points decided by us leading to the conclusion we have reached.

59. At this stage, it would be appropriate to mention the specific stand of the Speakers taken at the hearing. The learned Counsel who appeared for the several Speakers clearly stated that they were instructed to apprise us that the Speakers did not accept the jurisdiction of this Court to entertain these matters in view of the complete bar on jurisdiction of the courts enacted in para 7 read with para 6 of the Tenth Schedule. Accordingly, they abstained from addressing us on the merits of the impugned orders which led to these matters being brought in this Court in spite of our repeated invitation to them to also address us on merits in each case, which all the other learned Counsel did. No doubt, this Court’s jurisdiction to decide the constitutional validity of the Tenth Schedule was conceded, but no more.

60. It is in these extraordinary circumstances that we had to hear these matters. We need not refer herein to the details of ally particular case since the merits of each case are dealt separately in the order of that case. Suffice it to say that the unanimous view of the Bench is that the Speakers’ decision disqualifying a member under the Tenth Schedule is not immune from judicial scrutiny. According to the majority it is subject to judicial scrutiny on the ground of illegality or perversity while in the minority view, it is a nullity liable to be so declared and ignored.

61. We consider it apposite in this context to recall the duty of the Court in such delicate situations. This is best done by quoting Chief Justice Marshall in Cohens v. Virginia, (1821) 6 Wheat 264, 404:5 L. Ed. 257, 291, wherein he said:

“It is most true, that this Court will not take jurisdiction if it should not; but it is, equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do, is to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one.

**********

……….If the question cannot be brought in a court, then there is no case in law or equity, and no jurisdiction is given by the words of the article. But if, in any controversy depending in a court, the cause should depend on the validity of such a law, that would be a case arising under the constitution, to which the judicial power of the United States would extend …………”

                                                                          (Emphasis supplied)

62. More recently, Patanjali Shastri, C.J., while comparing the role of this Court in the constitutional scheme with that of the U.S. Supreme Court, pointed out in the State of Madras v. V. G. Row, (1952) SCR 597 that the duty of this Court flows from express provisions in our Constitution while such power in the U.S. Supreme Court has been assumed by the interpretative process giving a wide meaning to the “due process” clause. Sastri, C.J., at page No. 605 (of SCR):, spoke thus:

“Before proceeding to consider this question, we think it right to point out, what is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike as in America where the Supreme Court has assumed extensive powers of reviewing legislative acts under cover of the widely interpreted ‘due process’ clause in the Fifth and Fourteenth Amendments. If, then, the courts in this country face up to such important and none too easy task it is not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the ‘fundamental rights’, as to which this Court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute. We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the courts in the new set up are out to seek clashes with the legislatures in the country.”

                                                                          (Emphasis supplied)

63. We are in respectful agreement with the above statement of Sastri, C.J., and wish to add that even though such an obvious statement may have been necessary soon after the Constitution came into force and may not be a necessary reminder four decades later at this juncture, yet it appears apposite in the pressent context to clear the lingering doubts in some minds. We have no hesitation in adding further that while we have no desire to clutch at jurisdiction, at the same time we would not be deterred in the performance of this constitutional duty whenever the need arises.

64. We would also like to observe that unlike England, where there is no written Constitution and Parliament is supreme, in our country there is a written Constitution delineating the spheres, of jurisdiction of the legislature and the judiciary whereunder the power to construe the meaning of the provisions in the Constitution and the laws is entrusted to the judiciary with, finality attached to the decision of this Court inter alia by Article 141 about the true meaning of any enacted provision and Article 144 obliges all authorities in the country to act in aid of this Court. It is, therefore, not permissible in our constitutional scheme for any other authority to claim that power in exclusivity, or in supersession of this Court’s verdict. Whatever be the controversy prior to this Court entertaining such a matter, it must end when the Court is seized of the matter for pronouncing its verdict and it is the constitutional obligation of every person and authority to accept its binding effect when the decision is rendered by this Court. It is also to be remembered that in our constitutional scheme based on democratic principles which include governance by rule of law, every one has to act and perform his obligations according to the law of the land and it is the constitutional obligation of this Court to finally say what the law is. We have no doubt that the Speakers and all others sharing their views are alive to this constitutional scheme, which is as much the source of their jurisdiction as it is of this Court and also conscious that the power given to each wing is for the performance of a public duty as a constitutional obligation and not for self-aggrandisement. Once this perception is clear to all, there can be no room for any conflict.

65. The Tenth Schedule was inserted in the Constitution of India by the Constitution (Fifty-Second Amendment) Act, 1985 which came into force with effect from 1-3-1985 and is popularly known as the Anti-Defection Law. The Statement of Objects and Reasons says that this amendment in the Constitution was made to combat the evil of political defections which has become a matter of national concern and unless combated, is likely to undermine the very foundations of our democratic system and the principles which sustained it. This amendment is, therefore, for outlawing defection to sustain our democratic principles. The Tenth Schedule contains eight paras. Para I is ‘the interpretation clause defining ‘House’ to mean either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State. The expressions ‘legislature party’ and ‘original political party’ which are used in the remaining paras are also defined. Para 2 provides for disqualification on ground of defection. Para 3 provides that disqualification on ground of defection is not to apply in case of split indicating therein the meaning of ‘split’. Para 4 provides that disqualification on ground of defection is not to apply in case of merger. Para 5 provides exemption for the Speaker or the Deputy Speaker of the House of the People or of the Legislative Assembly of the State, the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of a State from the applicability of the provisions of the Tenth Schedule. Para 8 contains the rule making power of the Chairman or the Speaker.

66. For the purpose of deciding the jurisdiction of this Court and the justiciability of the cause, it is paras 6 and 7 which are material and they read as under:

“6. Decision on questions as to disqualification on ground of defection.-

(1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final: Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.

(2) All 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.

7. Bar of jurisdiction on 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.”

67. We shall now deal with the points involved enumerated earlier.

Points ‘A’ and ‘B’ – Paras 6 and 7 of Tenth Schedule

68. In support of the objection raised to .the jurisdiction of this Court and the justiciability of the Speaker’s decision relating to disqualification of a member, it has been urged that sub-paragraph (1) of para 6 clearly lays down that the decision of the Chairman or, as the case may be, the Speaker of such House shall be final and sub-paragraph (2) proceeds to say that all proceedings under sub-paragraph (1) ‘shall be deemed to be proceedings in Parliament . . . . or, . . . . . proceedings in the Legislature of a State’ within the meaning of Article 122 or Article 212, as the case may be. It was urged that the. clear provision in para 6 that the decision of the Chairman/ Speaker on the subject of disqualification under this Schedule shall be final and the further provision that all such proceedings ‘shall be deemed to be proceedings in Parliament … or,. . proceedings in the Legislature of a State’, within the meaning of Article 122 or Article 212, as the case may be, clearly manifests the intention that the jurisdiction of all Courts including the Supreme Court is ousted in such matters and the decision on this question is not justiciable. Further argument is that para 7 in clear words thereafter reiterates that position by saying that ‘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’. In other words, the argument is that para 6 by itself provides for ouster of the jurisdiction of all Courts including the Supreme Court and para 7 is a remanifestation of that clear intent in case of any doubt arising from para 6 alone. On this basis it was urged that the issue raised before us is not justiciable and the Speaker or the Chairman, as the case may be, not being “Tribunal’ within the meaning of that expression used in Article 136 of the Constitution, their decision is not open to judicial review.

69. In reply, it was urged that the finality clause in sub-paragraph (1) of para 6 does not exclude the jurisdiction of the High Courts under Articles 226 and 227 and of this Court under Article 136. Deeming provision in subparagraph (2) of para 6, it was urged, has the only effect of making it a ‘proceedings in Parliament’ or ‘proceedings in the Legislature of a State’ to bring it within the ambit of clause (1) of Article 122 or 212 but not within clause (2) of these Articles. The expression ‘proceedings in Parliament’ and ‘proceedings, in the Legislature of a State’ are used only in clause (1) of Articles 122 and 212 but not in clause (2) of either of these Articles, on account of which the scope of the fiction cannot be extended beyond the limitation implicit in the specific words used in the legal fiction. This being so, it was argued that immunity extended only to ‘irregularity of procedure’ but not to illegality as held in Keshav Singh, (1965) 1 SCR 413 . In respect of para 7, the reply is that the expression ‘no Court’ therein must be similarly construed to refer only to the Courts of ordinary jurisdiction but not the extraordinary jurisdiction of the High Courts under Articles 226 and 227 and the Plenary jurisdiction of Supreme Court under Article 136. It was also argued that the Speaker/ Chairman while deciding the question of disqualification of member under para 6 exercises a judicial function of the State which otherwise would be vested in the Courts and, therefore, in this capacity he acts as ‘Tribunal’ amenable to the jurisdiction under Articles 136, 226 and 227 of the Constitution. Shri Sibal also contended that the bar in para 7 operates only at the interim stage, like other election disputes, and not after the final decision under para 6.

70. The finality clause in sub-paragraph (1) of para 6 which says that the decision of the Chairman or, as the case may be, the Speaker of such House shall be final is not decisive. It is settled that such a finality clause in a statute by itself is not sufficient to exclude the jurisdiction of the High Courts under Articles 226 and 227 and the Supreme Court under Article 136 of the Constitution, the finality being for the statute alone. This is apart from the decision being vulnerable on the ground of nullity. Accordingly, sub-paragraph (1) alone is insufficient to exclude the extraordinary jurisdiction of the High Courts and the plenary jurisdicion of this Court. The legal fiction in sub-paragraph (2) of para 6 can only bring the proceedings under sub-paragraph (1) thereof within the ambit of clause (1) of Article 122 or clause (1) of Article 212, as the case may be, since the expressions used in sub-paragraph (2) of para 6 of the Tenth Schedule are ‘shall be deemed to be proceedings in Parliament or ‘proceedings in the Legislature of a State’, and such expressions find place both in Articles 122 and 212 only in clause (1) and not clause (2) thereof. The ambit of the legal fiction must be confined to the limitation implicit in the words used for creating the fiction and it cannot be given an extended meaning to include therein something in addition. It is also settled that a matter falling within the ambit of clause (1) of either of these two Articles is justiciable on the ground of illegality or perversity in spite of the immunity it enjoys to a challenge on the ground of ‘irregularity of procedure’.

71. To overcome this result, it was argued that such matter would fall within the ambit of clause (2) of both Articles 122 and 212 because the consequence of the order of disqualification by the Speaker/ Chairman would relate to the conduct of business of the House. In the first place, the two separate clauses in Articles 122 and 212 clearly imply that the meaning and scope of the two cannot be identical even assuming there be some overlapping area between them. What is to be seen is the direct impact of the action and its true nature and not the further consequences flowing therefrom. It cannot be doubted in view of the clear language of sub-paragraph (2) of para 6 that it relates to clause (1) of both Articles 122 and 212 and the legal fiction cannot, therefore, be extended beyond the limits of the express words used in the fiction. In construing the fiction it is not to be extended beyond the language of the Section by which it is created and its meaning must be restricted by the plain words used. It cannot also be extended by importing another fiction. The fiction in para 6(2) is a limited one which serves its purpose by confining it to clause (1) alone of Articles 122 and 212 and, therefore, there is no occasion to enlarge its scope by reading into it words which are not there and extending it also to clause (2) of these Articles. (See Commr. of Income-tax v. Ajax Products Ltd., (1965) 1 SCR 700 ).

72. Moreover, it does appear to us that the decision relating to disqualification of a member does not relate to regulating procedure or the conduct of business of the House provided for in clause (2) of Articles 122 and 212 and taking that view would amount to extending the fiction beyond its language and importing another fiction for this purpose which is not permissible. That being so, the matter falls within the ambit of clause (1) only of Articles 122 and 212 a, a result of which it would be vulnerable on tile ground of illegality and perversity and, therefore, justiciable to that extent.

73. It is, therefore, not possible to uphold the objection of jurisdiction on the finality clause or the legal fiction created in para 6 of the Tenth Schedule when justiciability of the clause is based on a ground of illegality or perversity. (See Keshav Singh, (1965) 1 SCR 413 . This in our view is the true construction and effect of para 6 of the Tenth Schedule.

74. We shall now deal with para 7 of the Tenth Schedule.

75. The words in para 7 of the Tenth Schedule are undoubtedly very wide and ordinarily mean that this provision supersedes any other provision in the Constitution. This is clear from the use of the non obstante clause ‘notwithstanding anything in this Constitution’ as the opening words of para 7. The non obstante clause followed by the expression ‘no court shall have any jurisdiction’ leave no doubt that the bar of jurisdiction of courts contained in Para 7 is complete excluding also the jurisdiction of the Supreme Court under Article 136 and that of the High Courts under Articles 226 and 227 of the Constitution relating to matters covered by para 7. The question, therefore, is of the scope of para 7. The scope of para 7 for this purpose is to be determined by the expression ‘in respect of any matter connected with the disqualification of a member of a House under this Schedule.’

76. One of the constructions suggested at the hearing was that this expression covers only the intermediate stage of the proceedings relating to disqualification under para 6 and not the end stage when the final order is made under para 6 on the question of disqualification. It was suggested that this construction would be in line with the construction made by this Court in its several decisions relating to exclusion of Courts’ jurisdiction in election disputes at the intermediate stage under Article 329 of the Constitution. This construction suggested of para 7 does not commend to us since it is contrary to the clear and unambiguous language of the provision. The expression ‘in respect of any matter connected with the disqualification of a member of a House under this Schedule’ is wide enough to include not merely the intermediate stage of the proceedings relating to disqualification but also the final order on the question of disqualification made under para 6 which is undoubtedly such a matter. There is thus express exclusion of all courts’ jurisdiction even in respect of the final order.

77. As earlier indicated by virtue of the finality clause and the deeming provision in para 6, there is exclusion of all courts’ jurisdiction to a considerable extent leaving out only the area of justiciability on the ground of illegality or perversity which obviously is relatable only to the final order under para 6. This being so, enactment of para 7 was necessarily made to bar the jurisdiction of courts also in respect of matters falling outside the purview of the exclusion made by para 6. Para 7 by itself and more so when read along with para 6 of the Tenth Schedule, leaves no doubt that exclusion of all courts’ jurisdiction by para 7 is total leaving no area within the purview, even of the Supreme Court or the High Courts under Articles 136,226 and 227. The language of para 7 being explicit, no other aid to construction is needed. Moreover, the speech of the Law Minister who piloted the Bill in the Lok Sabha and that of the Prime Minister ,in the Rajya Sabha as well as the debate on this subject clearly show that these provisions were enacted to keep the entire matter relating to disqualification including the Speakers’ final decision under para 6 on the question of disqualification, wholly outside the purview, of all courts including the Supreme Court and the High Courts. The legislative history in the absence of such a provision excluding the courts’ jurisdiction in the two earlier Bills which lapsed also reinforces the conclusion that enactment of para 7 was clearly to provide for total ouster of all courts’ jurisdiction.

78. In the face of this clear language, there is no rule of construction which permits the reading of para 7 in any different manner since there is no ambiguity in the language which is capable of only one construction, namely, total exclusion of the jurisdiction of all courts including that of the Supreme Court and the High Courts under Articles 136, 226 and 227 of the Constitution in respect of every matter connected with the disqualification of a member of a House under the Tenth Schedule including the final decision rendered by the Speaker/ Chairman, As the case may be. Para 7 must, therefore, be read in this manner alone.

79. The question now is of the effect of enacting such a provision in the Tenth Schedule and the applicability of the proviso to clause (2) of Article 368 of the Constitution.

80. Point ‘C’ – Applicability of Article 368(2) Proviso. The above construction of Para 7 of the Tenth Schedule gives rise to the question whether it thereby makes a change in Article 136 which is in Chapter IV of Part V and Articles 226 and 227 which are in Chapter V of Part VI of the Constitution. if the effect of Para 7 is to make such a change in these provisions so that the proviso to clause (2) of Article 368 is attracted, then the further question which arises is of the effect on the Tenth Schedule of the absence of ratification by the specified number of State Legislatures, it being admitted that no such ratification of the Bill was made by any of the State Legislatures.

81. Prima facie it would appear that Para 7 does seek to make a change in Articles 136, 226 and 227 of the Constitution inasmuch as without Para 7 in the Tenth Schedule a decision of the Speaker/ Chairman would be amenable to the jurisdiction of the Supreme Court under Article 136 and of the High Courts under Articles 226 and 227 as in the case of decisions as to other disqualifications provided in clause (1) of Article 102 or 191 by the President/ Governor under Article 103 or 192 in accordance with the opinion of the Election Commission which was the Scheme under the two earlier Bills which lapsed. However, some learned counsel contended placing reliance on Sri Shankari Prasad Singh Deo v. Union of India, (1952) SCR 89 and Sajjan Singh v. State of Rajasthan, (1965) 1 SCR 933 that the effect of such total exclusion of the jurisdiction of the Supreme Court and the High Courts does not make a change in Articles 136, 226 and 227. A close reading of these decisions indicates that instead of supporting this contention, they do in fact negative it.

82. In Shankari Prasad, AIR 1951 SC 458) the challenge was to Articles 31A and 31B inserted in the Constitution by the Constitution (First Amendment) Act, 1951. One of the objections was based on absence of ratification under Article 368. While rejecting this argument, the Constitution Bench held as under:

“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 Article 13 read with other relevant articles in Part III, while Article 31B purports to validate certain specified Acts and Regulations already passed, which, but for such a provision, would be liable to be impugned under Article 13. It is not correct to say that the powers of the High Court under Article 226 to issue writs “for the enforcement of any of the rights conferred by Part III” or of this Court under Articles 132 and 136 to entertain appeals from orders issuing or refusing such writs are in any way affected. They remain just the same as they were before:only a certain class of case has been excluded from the purview of Part III and the courts could no longer interfere, not because their powers were curtailed in any manner or to any extent, but because there would be no occasion hereafter for the exercise of their powers in such cases.”

                                                                          (Emphasis supplied)

83. The test applied was whether the impugned provisions inserted by the Constitutional Amendment did ‘either in terms or in effect seek to make any change in Article 226 or in Articles 132 and 136’. Thus the change may be either in terms i.e. explicit or in effect in these Articles to require ratification. The ground for rejection of the argument therein was that the remedy in the Courts remained unimpaired and unaffected by the change and the change was really by extinction of the right to seek the remedy. In other words, the change was in the right and not the remedy of approaching the Court since there was no occasion to invoke the remedy, the right itself being taken away. To the same effect is the decision in Sajjan Singh, (supra), wherein Sankari Prasad, (supra), was followed stating clearly that there was no justification for reconsidering Sankari Prasad.

84. Distinction has to be drawn between abridgement or extinction of a right and restriction of the remedy for enforcement of the right. If there is an abridgement or extinction of the right which results in the disappearance of the cause of action which enables invoking the remedy. and in the absence of which there is no occasion to make a grievance and invoke the subsisting remedy, then the change brought about is in the right and not the remedy. To this situation, Sankari Prasad and Sajjan Singh apply. On the other hand, if the right remains untouched so that a grievance based thereon can arise and, therefore, the cause of action subsists, but the remedy is curtailed or extinguished so that the cause of action cannot be enforced for want of that remedy, then the change made is in the remedy and not in the subsisting right. To this latter category, Sankari Prasad and Sajjan Singh have no application. This is clear from the above-quoted passage in Sankari Prasad which clearly brings out this distinction between a change in the right and a change in the remedy.

85. The present case, in unequivocal terms, is that of destroying the remedy by enacting para 7 in the Tenth Schedule making a total exclusion of judicial review including that by the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution. But for para 7 which deals with the remedy and not the right, the jurisdiction of the Supreme Court under Article 136 and that of the High Courts under Articles 226 and 227 would remain unimpaired to challenge the decision under para 6, as in the case of decisions relating to other disqualifications specified in clause (1) of Articles 102 and 191, which remedy continues tosubsist. Thus, this extinction of the remedy a lone without curtailing the right, since the question of disqualification of a member on the ground of defection under the Tenth Schedule does require adjudication on enacted principles, results in making a change in Article 136 in Chapter IV in Part V and Articles 226 and 227 in Chapter V in Part VI of the Constitution.

86. On this conclusion, it is undisputed that the proviso to clause (2) of Article 368 is attracted requiring ratification by the specified number of State Legislatures before presentation of the Bill seeking to make the constitutional amendment to the President for his assent.

87. Point ‘D’ – Effect of absence of ratification

The material part of Article 368 is as under:

“368. Power of Parliament to amend the Constitution and Procedure therefor. – (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill, for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change in-

(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

(c) any of the Lists in the Seventh Schedule, or

(d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.”

                                                                          (Emphasis supplied)

It is clause (2) with its proviso which is material. The main part of clause (2) prescribes that a constitutional amendment can be initiated only by the introduction of a Bill for the purpose and when the Bill is passed by each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill, In short, the Bill on being passed by the required majority is presented to the President for his assent to the Bill and on giving of the assent, the Constitution stands amended accordingly. Then comes, the proviso which says that ‘if such an amendment seeks to make any change’ in the specified provisions of the Constitution, the amendment shall also require to be ratified by the Legislature of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. In other words, the proviso contains a constitutional limitation on the amending power; and prescribes as a part of the special procedure, prior assent of the State Legislatures before presentation of the Bill to the President for his assent in the case of such Bills. This is a condition interposed by the proviso in between the passing of the Bill by the requisite majority in each House and presentation of the Bill to the President for his assent, which assent results in the Constitution automatically standing amended in accordance with the terms of the Bill. Thus, the Bills governed by the proviso cannot be presented to the President for his assent without the prior ratification by the specified number of State Legislatures or in other words, such ratification is a part of the special procedure or a condition precedent to presentation of the Bill governed by the proviso to the President for his assent. It logically follows that the consequence of the Constitution standing amended in accordance with the terms of the Bill on assent by the President, which is the substantive part of Article 368, results only when the Bill has been presented to the President for his assent in conformity with the special procedure after performance of the conditions precedent, namely, passing of the Bill by each House by the requisite majority in the case of all Bills; and in the case of Bills governed by the proviso, after the Bill has been passed by the requisite majority in each House and it has also been ratified by the Legislature of not less than one-half of the States.

88. The constituent power for amending the Constitution conferred by Art. 368 also prescribes the mandatory procedure in clause (2) including its proviso, for its exercise. The constituent power cannot, therefore, be exercised in any other manner and non-compliance of the special procedure so prescribed in Art. 368(2) cannot bring about the result of the Constitution standing amended in accordance with the terms of the Bill since that result ensues only at the end of the prescribed mandatory procedure and not otherwise. The substantive part of Art. 368 which provides for the resultant amendment is the consequence of strict compliance of the mandatory special procedure prescribed for exercise of the constituent power and that result does not ensue except in the manner prescribed.

89. The true nature and import of the amending power and procedure under Art. 368 as distinguished from the ordinary legislative procedure was indicated in Kesavananda Bharati (1973) Supp SCR 1 at pp. 561, 563 and 565:

“…………Under Article 368.

However, a different and special procedure is provided for amending the Constitution. A Bill has to be introduced in either House of Parliament and must be passed by each House separately by a special majority, It should be passed not only by 2/ 3rd majority of the members present and voting but also by a majority of the total strength of the House. No joint sitting of the two Houses is permissible. In the case of certain provisions of the Constitution which directly or indirectly affect inter-State relations, the proposed amendment is required to be ratified by the Legislatures which is not a legislative process of not less than one-half of the States before the Bill proposing the amendment is presented to the President for his assent. The procedure is special in the sense that it is different and more exacting or restrictive than the one by which ordinary laws are made by Parliament. Secondly in certain matters the State Legislatures are involved in the process of making the amendment. Such partnership between the Parliament and the State Legislatures in making their own laws by the ordinary procedure is not recognised by the Constitution. It follows from the special provision made in Art. 368 for the amendment of the Constitution that our Constitution is a ‘rigid’ or ‘controlled’ Constitution because the Constituent Assembly has “left a special direction as to how the Constitution is to be changed. In view of Art. 368, when the special procedure is successfully followed, the proposed amendment automatically becomes a part of the Constitution or, in other words, it writes itself into the Constitution.”

**********

“………..But when it comes to the amendment of the Constitution, a special procedure has been prescribed in Art. 368. Since the result of following the special procedure under the Article is the amendment of the Constitution the process which brings about the result is known as the exercise of constituent power by the bodies associated in the task of amending the Constitution. It is, therefore, obvious, that when the Parliament and the State Legislatures function in accordance with Art. 368 with a view to amend the Constitution, they exercise constituent power as distinct from their ordinary legislative power under Arts. 246 to 248. Article 368 is not entirely procedural. Undoubtedly part of it is procedural. But there is a clear mandate that on the procedure being followed the ‘proposed amendment shall become part of the Constitution, which is the substantive part of Art. 368. Therefore, the peculiar or special power to amend the Constitution is to be, sought in Art. 368 only and not elsewhere.”

**********

“…………..The true position is that the alchemy of the special procedure prescribed in Art. 368 produces the constituent, power which transports the proposed amendment into the Constitution and gives it equal status with the other parts of the Constitution.”

                                                                          (Emphasis supplied)

90. Apart from the unequivocal language of clause (2) including the proviso therein indicating the above result of prior ratification being a part of the special procedure or condition precedent for valid assent of the President, the same result is reached even by another route. The ordinary role of a proviso is to carve out an exception from the general rule in the main enacting part. The main enacting part of clause (2) lays down that on a Bill for a constitutional amendment being passed in each House by a requisite majority, it shall be presented to the President for his assent and on the assent being given, the Constitution shall stand amended in accordance with the terms of the Bill. The proviso then carves out the exception in case of Bills seeking to make any change in the specified Articles of the Constitution prescribing that in the case of those Bills, prior ratification by the Legislatures of not less than one-half of the States is also required before the Bill is presented to the President for assent. This means that a Bill falling within the ambit of the proviso is carved out of the main enactment in clause (2) as an exception on account of which it cannot result in amendment of the Constitution on the President’s assent without prior ratification by the specified number of State Legislatures. The proviso in clause (2) is enacted for and performs the function of a true proviso by qualifying the generality of the main enactment in clause (2) in providing an exception and taking out of the main enactment in clause (2) such Bills which but for the proviso would fall within the main part. Not only the language of the main enactment in clause (2) and the proviso thereunder is unequivocal to give this clear indication but the true role of a proviso, the form in. which the requirement of prior ratification if such a Bill by the State Legislatures is enacted in Article 368 lend further assurance that this is the only construction of clause (2) with its proviso which can be legitimately made. If this be the correct constructions of Article 368(2) with the proviso as we think it is, then there is no escape from the logical conclusion that a Bill to which the proviso applies does not result in amending the Constitution in accordance with its terms on assent of the President if it was presented to the President for his assent and the President gave his assent to the Bill without prior ratification by the specified number of the State Legislatures. This is the situation in the present case.

91. Thus the requirement of prior ratification by the State Legislatures is not only a condition precedent forming part of the special mandatory procedure for exercise of the constituent power and a constitutional limitation thereon but also a requirement carving out an exception to the general rule of automatic amendment of the Constitution on the President’s assent to the Bill.

92. In other words, clause (2) with the proviso therein itself lays down that the President’s assent does not result in automatic amendment of the Constitution in case of such a Bill if it was not duly ratified before presentation to the President for his assent. Nothing more is needed to show that not only para 7 of the Tenth Schedule but the entire Constitution (Fifty-Second Amendment) Act, 1985 is still born or an abortive attempt to amend the Constitution for want of prior ratification by the State Legislatures of the Bill before its presentation to the President for his assent.

93. The result achieved in each case is the same irrespective of the route taken. If the route chosen is for construing the language of clause (2) with the proviso merely a part of it, the requirement or prior ratification is a condition precedent forming part of the special mandatory procedure providing that the constituent power in case of such a Bill can be exercised in this manner alone, the mode prescribed for other Bills being forbidden. If. the route taken is of treating the proviso as carving out an exception from the general rule which is the normal role of a proviso, then the result is that the consequence of the Constitution standing amended in terms of the provisions of the Bill on the President’s assent as laid down in the main part of clause (2) does not ensue without prior ratification in case of a Bill to which the proviso applies.

94. There can thus be no doubt that para 7 of the Tenth Schedule which seeks to make a change in Article 136 which is a part of Chapter IV of Part V and Articles 226 and 227 which form part of Chapter V of Part VI of the Constitution, has not been enacted by incorporation in a Bill seeking to make the Constitutional Amendment in the manner prescribed by clause (2) read with the proviso. therein of Article 368. Para 7 of the Tenth Schedule is, therefore, unconstitutional and to that extent at least the Constitution does not stand amended in accordance with the Bill seeking to make the Constitutional Amendment. The further question now is:its effect on the validity of the remaining part of the Tenth Schedule and consequently the Constitution (Fifty-Second Amendment) Act, 1985, itself.

95. Point ‘E’ – Severability of para 7 of Tenth Schedule

The effect of absence of ratification indicated above suggests inapplicability of the Doctrine of Severability. In our opinion, it is not para 7 alone but the entire Tenth Schedule nay the Constitution (Fifty-Second Amendment) Act, 1985 itself which is rendered unconstitutional being an abortive attempt to so amend the Constitution. It is the entire Bill and not merely para 7 of the Tenth Schedule therein which required prior ratification by the State Legislatures before its presentation to the President for his assent, it being a joint exercise by the Parliament and State Legislatures. The stage for presentation of Bill to the President for his assent not having reached, the President’s assent was non est and it could not result in amendment of the Constitution in accordance with the terms of the Bill for the reasons given earlier. Severance of para 7 of the Tenth Schedule could not be made for the purpose of ratification of the President’s assent and, therefore, no such severance can be made even for the ensuing result. If the President’s assent cannot validate para 7 in the absence of prior ratification, the same assent cannot be accepted to bring about a different result with regard to the remaining part of the Bill.

96. On this view, the question of applying the Doctrine of Severability to strike down para 7 alone retaining the remaining part of Tenth Schedule does not arise since it presupposes that the Constitution stood so amended on the President’s assent. The Doctrine does not apply to a still born legislation.

97. The Doctrine of Severability applies in a case where an otherwise validly enacted legislation contains a provision suffering from a defect of lack of legislative competence and the invalid provision is severable leaving the remaining valid provisions a viable whole. This doctrine has no application where the legislation is not validly enacted due to non-compliance of the mandatory legislative procedure such as the mandatory special procedure prescribed for exercise of the constituent power. It is not possible to infuse life in a still born by any miracle of deft surgery even though it may be possible to continue life by removing a congenitally defective part by surgical skill. Even the highest degree of surgical skill can help only to continue life but it cannot infuse life in the case of still birth.

98. With respect, the contrary view does not give due weight to the effect of a condition precedent forming part of the special procedure and the role of a proviso and results in rewriting the proviso to mean that ratification is not a condition precedent but merely an additional requirement of such a Bill to make that part effective. This also fouls with the expression ‘Constitution shall stand amended …. ‘ on the assent of President which is after the stage when the amendment has been made and ratified by the State Legislatures as provided. The historical background of drafting the proviso also indicates the significance attached to prior ratification as a condition precedent for valid exercise of the constituent power.

99. We are unable to read the Privy Council decision in The Bribery Commissioner v. Pedrick Ranasinghe, 1965 AC 172, as an authority to support applicability of the, Doctrine of Severability in the present case. In Kesavananda Bharati, (1973 Supp SCR 1, the substance of that decision was indicated by Mathew, J., at page No. 778 of SCR:, thus:

“……that though Ceylon Parliament has plenary power of ordinary legislation, in the exercise of its Constitution power it was subject to the special procedure laid down in S.29(4) …….”

While Section 29(4) of Ceylon (Constitution) Order was entirely procedural with no substantive part therein, Article 368 of the Indian Constitution has also a substantive part as pointed out in Kesavananda Bharati. This distinction also has to be borne in mind.

100. The challenge in Ranasinghe was only to the legality of a conviction made under the Bribery Act, 1954 as amended by The Bribery Amendment Act, 1958 on the ground that the Tribunal which had made the conviction was constituted under Section 41 of the Amending Act which was invalid being in conflict with Section 55 of the Constitution and not being enacted by exercise of constituent power in accordance with Section 29(4) of the Ceylon (Constitution) Order. Supreme Court of Ceylon quashed the conviction holding Section 41 of the Amending Act to be invalid for this reason. The Privy Council affirmed that view and in this context held that S. 41 could be severed from rest of the Amending Act. Ranasinghe was not a case of a Bill passed in exercise of the constituent power without following the special procedure of S. 29(4) but of a Bill passed in exercise of the ordinary legislative power containing other provisions which could be so enacted, and including therein S. 41 which could be made only in accordance with the special procedure of S. 29(4) of the Constitution. The Privy Council made a clear distinction between legislative and constituent powers and reiterated the principle thus:

“……..The effect of S. 5 of the Colonial Laws Validity Act, which is framed in a manner somewhat similar to S. 29(4) of the Ceylon Constitution was that where a legislative power is given subject to certain manner and form, that power does not exist unless and until the manner and form is complied with Lord Sankey L. C. said:

“A Bill, within the scope of sub-section (6) of S. 7A, which received the Royal Assent without having been approved by the electors in accordance with that section, would not be a valid act of the Legislature. It would be ultra vires S. 5 of the Act of 1865.”

101. The Bribery Amendment Act, 1958, in Ranasinghe, was enacted in exercise of the ordinary legislative power and therein was inserted Section 41 which could be made only in exercise of the constituent power according to the special procedure prescribed in S. 29(4) of the Ceylon (Constitution) Order. In this situation, only S. 41 of the Amending Act was held to be invalid and severed because the special procedure for the constituent power was required only for that provision and not the rest. In the instant case the entire Tenth Schedule is enacted in exercise of the constituent power under Article 368, not merely para 7 therein, and this has been done without following the mandatory special procedure prescribed. It is, therefore, not a case of severing the invalid constituent part from the remaining ordinary legislation. Ranasinghe could have application if in an ordinary legislation outside the ambit of Article 368, a provision which could be made only in exercise of the constituent power according to Article 368 had been inserted without following the special procedure, and severance of the invalid constituent part alone was the question. Ranasinghe is, therefore, distinguishable.

102. Apart from inapplicability of the Doctrine of Severability to a Bill to which the proviso to clause (2) of Article 368 applies, for the reasons given, it does not apply in the present case to strike down para 7 alone retaining the remaining part of the Tenth Schedule. In the first place, the discipline for exercise of the constituent power was consciously and deliberately adopted instead of resorting to the mode of ordinary legislation in accordance with sub-clause (e) of clause (1) of Articles 102 and 191, which would render the decision on the question of disqualification on the ground of defection also amenable to judicial review as in the case of decision on questions relating to other disqualifications. Moreover, even the test applicable for applying the Doctrine of Severability to ordinary legislation as summarised in R. M. D. Chamarbaughwalla v. Union of India, (1957) SCR 930 , indicates that para 7 alone is not severable to permit retention of the remaining part of the Tenth Schedule as valid legislation. The settled test whether the enactment would have been made without para 7 indicates that the legislative intent was to make the enactment only with para 7 therein and not without it. This intention is manifest throughout and evident from the fact that but for para 7 the enactment did not require the discipline of Article 368 and exercise of the constituent power. Para 7 follows para 6 the contents of which indicate the importance given to para 7 while enacting the Tenth Schedule. The entire exercise, as reiterated time and again in the debates, particularly the Speech of the Law Minister while piloting the Bill in the Lok Sabha and that of the Prime Minister in the Rajya Sabha, was to emphasise that total exclusion of judicial review of the Speaker’s decision by all courts including the Supreme Court, was the prime object of enacting the, Tenth Schedule. The entire legislative history shows this. How can the Doctrine of Severability be applied in such a situation to retain the Tenth Schedule striking down para 7 alone? This is a further reason for in applicability of this doctrine.

103. Point ‘F’ – Violation of basic features

The provisions in the Tenth Schedule minus para 7, assuming para 7 to be severable a as held in the majority opinion, can be sustained only if they do not violate the basic structure of the Constitution or damage any of its basic features. This is settled by Kesavananda Bharati, (1973) Supp SCR 1 . The question, therefore, is whether there is violation of any of the basic features of the Constitution by the remaining part of the Tenth Schedule, even assuming the absence of ratification in accordance with the proviso to clause (2) of Article 368 results in invalidation of para 7 alone.

104. Democracy is a part of the basic structure of our Constitution; and rule of law, and free and fair elections are basic features of democracy. One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority. It is only by a fair adjudication of such disputes relating to validity of elections and subsequent disqualifications of members that true reflection of the electoral mandate and governance by rule of law essential for democracy can be ensured. In the democratic pattern adopted in our Constitution, not only the resolution of election dispute is entrusted to A judicial tribunal, but even the decision on question as to disqualification of members under Arts. 103 and 192 is by the President/ Governor in accordance with the opinion of the Election Commission. The constitutional scheme, therefore, for decision on questions as to disqualification of members after being duly elected, contemplates adjudication of such disputes by an independent authority outside the House, namely, President/Governor in accordance with the opinion of the Election Commission, all of whom are high constitutional functionaries with security of tenure independent of the will of the House. Sub-clause (e) of clause (1) in Articles 102 and 191 which provide for enactment of any law by the Parliament to prescribe any disqualification other than those prescribed in the earlier sub-clauses of clause (1), clearly indicates that all disqualifications of members were contemplated within the scope of Articles 102 and 191. Accordingly, all disqualifications including disqualification on the ground of defection, in our constitutional scheme, are different species of the same genus, namely, disqualification, and the constitutional scheme does not contemplate any difference in their basic traits and treatment. It is undisputed that the disqualification on the ground of defection could as well have been prescribed by an ordinary law made by the Parliament under Articles 102(1)(e), 191(1)(e) instead of by resort to the constituent power of enacting the Tenth Schedule. This itself indicates that all disqualifications of members according to the constitutional scheme were meant to be decided by an independent authority outside the House such as the President/ Governor, in accordance with the opinion of another similar independent constitutional functionary, the Election Commission of India, who enjoys the security of tenure of a Supreme Court Judge with the same terms and conditions of office. Thus, for the purpose of entrusting the decision on the question of disqualification of a member, the constitutional scheme envisages an independent, authority outside the House and not within it,. which may be dependent on the pleasure of the majority in the House for its tenure.

105. The Speaker’s office is undoubtedly high and has considerable aura with the attribute of impartiality. This aura of the office was even greater when the Constitution was framed and yet the framers of the Constitution did not choose to vest the authority of adjudicating disputes as to disqualification of members to the Speaker; and provision was made in Arts. 103 and 192 for decision of such disputes by the President/ Governor in accordance with the opinion of the Election Commission. The reason is not far to seek.

106. The Speaker being an authority within the House and his tenure being dependent on the will of the majority therein, likelihood of suspicion of bias could not be ruled out. The question as to disqualification of a member has adjudicatory disposition and, therefore, requires the decision to be rendered in consonance with the scheme for adjudication of disputes. Rule of law has in it firmly entrenched, natural justice, of which, Rule against Bias is a necessary concomitant; and basic postulates of Rule against Bias are; Nemo Judex In Causa Sua – ‘A Judge is disqualified from determining any case in which he may be, or may fairly be suspected to be, biased’; and ‘it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’, This appears to be the underlying principle adopted by the framers of the Constitution in not designating the Speaker as the authority to decide election disputes and questions as to disqualification of members under Arts. 103, 192 and 329 and opting for an. independent authority outside the House. The framers of the Constitution had in this manner kept the office of the Speaker away from this controversy. There is nothing unusual in this scheme if we bear in mind that the final authority for removal of a Judge of the Supreme Court and High Court is outside the judiciary in the Parliament under Article 124(4). On the same principle the authority to decide the question of disqualification of a member of Legislature is outside the House as envisaged by Articles 103 and 192.

107. In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such dispute with no provision for any appeal or revision against the Speaker’s decision to any independent outside authority. This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution since the Speaker cannot be treated as an authority contemplated for being entrusted with this function by the basic postulates of the Constitution, notwithstanding the great dignity attaching to that office with the attribute of impartiality.

108. It is the Vice-President of India who is ex-officio Chairman of the Rajya Sabha and his position, being akin to that of the President of India, is different from that of the Speaker. Nothing said herein relating to the office of the Speaker applies to the Chairman of the Rajya Sabha, that is, the Vice-President of India. However, the only authority named for the Lok Sabha and the Legislative Assemblies is the Speaker of the House and entrustment of this adjudicatory function fouls with the constitutional scheme and, therefore, violates a basic feature of the Constitution. Remaining part of the Tenth Schedule also is rendered invalid notwithstanding the fact that this defect would not apply to the Rajya Sabha alone whose Chairman is the Vice-President of India, since the Tenth Schedule becomes unworkable for the Lok Sabha and the State Legislatures. The statutory exception of Doctrine of Necessity has no application since designation of authority in the Tenth Schedule is made by choice while enacting the legislation instead of adopting the other available options.

109. Since the conferment of authority is on the Speaker and the provision cannot be sustained for the reason given, even without para 7, the entire Tenth Schedule is rendered invalid in the absence of any valid authority for decision of the dispute.

110. Thus, even if the entire Tenth Schedule cannot be held unconstitutional merely on the ground of absence of ratification of the Bill, assuming it is permissible to strike down para 7 alone, the remaining part of the Tenth Schedule is rendered unconstitutional also on account of violation of the aforesaid basic feature. Irrespective of the view on the question of effect of absence of ratification, the entire Tenth Schedule must be struck down as unconstitutional.

111. Point ‘G’- Other contentions

We have reached the conclusion that para 7 of the Tenth Schedule is unconstitutional; that the entire Tenth Schedule is constitutionally invalid in the absence of prior ratification in accordance with the proviso to clause (2) of Article 368; that the Doctrine of Severability does not apply in the present case of a constitutional amendment which suffers from the defect of absence of ratification as required by the proviso to clause (2) of Article 368; that the remaining part of the Tenth Schedule minus para 7 is also unconstitutional for violation of a basic feature of the Constitution; and that the entire Tenth Schedule is, therefore, constitutionally invalid. rendering the Constitution (Fifty-Second Amendment) Act, 1985 still-born and an abortive attempt to amend the Constitution. In view of this conclusion, it is not necessary for us to express our concluded opinion on the other grounds of challenge to the constitutional validity of the entire Tenth Schedule urged at the hearing on the basis of alleged violation of certain other basic features of the Constitution including the right of members based on Article 105 of the Constitution.

112. These are our detailed reasons for the operative conclusions pronounced by us earlier on November 12, 1991.

Supreme Court Advocates-on-Record Association and another Vs Union of India[ALL SC 1993 OCTOBER]

KEYWORDS:-ROLE OF CHIEF JUSTICE OF INDIA-

c

DATE:-06-10-1993.

AIR 1994 SC 268 : (1993) 2 Suppl. SCR 659 : (1993) 4 SCC 441 : JT 1993 (5) SC 479 : (1993) Suppl. SCALE 67

(SUPREME COURT OF INDIA)

Supreme Court Advocates-on-Record Association and another Appellant
Versus
Union of India Respondent

AND

S. P. Gupta Appellant
Versus
Union of India Respondent

(Before: S. Ratnavel Pandian, A. M. Ahmadi, Kuldip Singh, J. S. Verma, M. M. Punchhi, Yogeshwar Dayal, G. N. Ray, Dr. A. S. Anand And S. P. Bharucha, JJ.)

Words and phrases—”Opinion of Chief Justice of India” and “Chief Justice of High Court”—Meaning of—Primacy of the opinion of the Chief Justice of India formed collectively, that is to say, after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of his opinion. As certainment of opinion of other judges by Chief Justice of India and Chief Justice of High Court must be in writing and form part of final recommendation.

Writ Petns. (Civil) Nos. 1303 of 1987 with 156 of 1993, Decided on: 06-10-1993.

Judgment

S. Ratnavel Pandian, J—”Solomon’s throne was supported by lions on both sides; let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty,”

2. In terms of the above Biblical apologue in the old Testament as coined by Francis Bacon in his ‘Eassay of Judicature’, the vital questions which are of great constitutional significance affecting the Indian judicial system that are posed for deep consideration can be figuratively formulated thus:

(1) Whether the present day ‘Solomon’s throne (symbolizing the majesty of our justice system) is fully supported by the ‘Lions’ (symbolizing the legislature and executive) on both sides?

(2) Whether the ‘Lions’ are still under the ‘throne’?

(3) Whether the ‘Lions’ are circumspected from checking or opposing any of the points of sovereignty of the Judiciary’ i.e. judicial sovereignty)?

(4) Whether it is for the ‘Lions’ to pronounce the name of ‘Solomon’ and his successor to occupy the throne?

(5) Whether ‘Solomon’ has any right of proposing any celeberated structural reform to his ‘House’ (symbolizing the judicial structure) or is it for the ‘Lions’ to make such proposal to ‘Solomon’s House’ without reference to Solomon?

(6) Is it for the ‘Lions’ to make any alteration to the structure of the Imperial State of ‘Solomon’s House’ and propose sweeping reforms whether constitution and composition of a ‘Kingdom of Solomon’ – even without reference to Solomon or even inexcusably ignoring any suggestion of Solomon?

(7) Whether under the present scheme and procedure prescribed and followed, ‘Solomon’ is made to sit on the chair of handicapped sub-silentio instead of his own ‘throne’?

3. The questions that are symbolically referred to above are raised in these two writ petitions and they are related to the function of the superior Judiciary, the primary objects of which being to facilitate the judiciary (a) to get rid of its suffocation caused by the excessive dominance of the executive in the matter of appointment of Judges to the superior judiciary as well as in the formation of its structural composition, (b) to give primacy if not supremacy to the opinion of the Chief Justice of India (hereinafter referred to as ‘CJI’) in all the matters thereof and (c) to enjoy normal breathing of the unpolluted air of judicial independence, so that the indispensable independence and integrity of the Judiciary are kept up, consistent with the letter and spirit of the Constitution and in tune with the oath or affirmation made and subscribed, bearing ‘allegiance to the Constitution of India’ and also are saved ‘from the hardening of the executive arteries’.

4. The reliefs sought for are to issue a mandamus to the Union of India (hereinafter referred to as the ‘UOI’) to fill the vacancies of Judges in the Supreme Court and the several High Courts of the country and for some ancillary orders/ directions in regard to the main prayer.

5. Pursuant to the direction of a three Judges Bench comprising Ranganath Misra, C.J., M. N. Venkatachaliah, J. (as the learned Chief Justice then was) and M. M. Punchhi, J. dated 26th October, 1990 made in a public interest litigation under the caption Subhesh Sharma v. Union of India, (1990) 2 Suppl. SCR 433 , the present cases are placed on the docket of this nine-Judges Bench to explore the following two important topical questions formulated therein which are swirling around the basic issues as it has been felt by that Bench that the correctness of the ratio in S. P. Gupta v. Union of India(1982) 2 SCR 365 on the status of the Chief Justice of India in the matter of appointment of Judges to the higher echelons of judiciary for the efficient functioning of the superior judicial system required reconsideration by a larger Bench.

6. The relevant passage of the above order reads thus:

“Returning to the views of the majority, we may set out the views of these learned Judges in the judgment as to ‘consultation’ and primacy of the position of the Chief Justice of India which would in our opinion require reconsideration.”

7. The questions on the basis of the above Order that arise for consideration are:

(1) Whether the opinion of the Chief Justice of India in regard to the appointment of Judges to the Supreme Court and High Courts as well as in regard to the transfer of High Court Judges, is entitled to primacy? and

(2) Whether the matters including the matter for fixation of the Judge-strength in the High Courts are justiciable?

8. I had the advantage of perusing the judgment of my learned brother, J. S. Verma, J.. Though I am in respectful agreement with most of the conclusions arrived at by him, yet having regard to the important constitutional issues involved in this case, I would like to give my own reasons for those conclusions and also add some of my views on a few other points.

9. Even at this prefatory stage, we with greatest respect to the opinion of the eminent Judges in Gupta’s case (supra) and also mindful to the historical importance of that decision venture to say that we do not proceed to reconsider the basic issue in, Gupta’s case (supra) with any pre-conceived notion of back-pedaling those views already expressed but for meeting certain challenges.

10. It will be grotesque if any such criticism is ever levelled against the proposed reconsideration of the decision in question or any bad motive attributed thereto.

The Concept of reconsideration of legal proposition and judicial review

11. The immediate but inevitable substantial questions that follow for serious consideration are as to what are the essential conditions and circumstances under which the Courts will be justified in undertaking the task of reconsidering its earlier view, expressed on the interpretation of the Constitution or law, as the case may be and what are the guidelines for such a drastic course and what will be the legal effect that may flow from it.

12. Since this Court is the highest Court of this land and its vitality is a national imperative, the primary institutional task of this Court is, first to clearly understand the true message that the Constitution intends to convey, secondly to ascertain the ‘original meaning’ of that message in the light of the constitutional provisions and thirdly to pronounce what the law is in harmony with meaningful purpose, original intent and true spirit of the Constitution; because only those pronouncements have to reflect the enduring principles of constitutional law and policy. In the discharge or performance of these national duties, some controversies on the general philosophy of the Constitution, many novel issues and difficult problems are likely to come up for deep consideration and also for reconsideration when new challenges emerge.

13. Besides, in the series of litigations involving constitutional questions, the inevitable result of an avalanche of various judicial pronouncements necessarily involves consideration of the constitutional provisions.

14. To combat and deal with all these controversies, issues and problems which are always open for judicial interpretation, the Courts have to undertake an onerous mission in exploring the ‘real intention’ and ‘original meaning’ of the Constitution beyond all obscurities and to expound the principles underlying the philosophy of the Constitution and declare what the Constitution speaks about and mandates.

15. The exploration of the new principles are essential in those areas not before explored; more so when the old principles are found to be not responding to the unresolved and unforeseen modern challenges or to have become inapplicable to the new situations or found to be unsound. At the same time, it is not to be lost sight that in the above institutional task, the Court does not create any new right not known to the constitutional text or history but merely discovers and announces only the existing right so far hidden under the surface on a better understanding of the values of the underlining intent and spirit of the Constitution in the light of a new set of conditions. The resultant corollary would be that the old legal concept and such principles may be swept away by a new concept and under a new set of conditions or a fresh outlook.

16. The proposition that the provisions of the Constitution must be confined only to the interpretation which the framers, with the conditions and outlook of their time would have placed upon them is not acceptable and is liable to be rejected for more than one reason – firstly, some of the current issues could not have been foreseen; secondly, others would not have been discussed and thirdly, still others may be left over as controversial issues, i.e. termed as deferred issues with conflicting intentions. Beyond these reasons, it is not easy or possible to decipher as to what were the factors that influenced the mind of the framers at the time of framing the Constitution when it is juxtaposed to the present time. The inevitable truth is that law is not static and immutable but ever increasingly dynamic and grows with the ongoing passage of time.

17. So it falls upon the superior courts in large measure the responsibility of exploring the ability and potential capacity of the Constitution on a proper diagnostic insight of a new legal concept and making this flexible instrument serve the needs of the people of this great nation without sacrificing its essential features and basic principles which lie at the root of Indian democracy. However, in this process, our main objective should be to make the Constitution quite understandable by stripping away the mystique and enigma, that permeate and surround it and by clearly; focussing on the reality of the working of the constitutional system and scheme so as to make the justice delivery system more effective and resilient. Although frequent overruling of decisions will make the law uncertain and later decisions unpredictable and this Court would not normally like to reopen the issues which are concluded, it is by now well settled by a line of judicial pronouncements that it is emphatically the province and essential duty of the superior Courts to review or reconsider its earlier decisions, if so warranted under compelling circumstances and even to overrule any questionable decision, either fully or partly, if it had been erroneously held and that no decision enjoys absolute immunity from judicial review or reconsideration on a fresh outlook of the constitutional or legal interpretation and in the light of the development of innovative ideas, principles and perception grown along with the passage of time. This power squarely and directly falls within the rubric of judicial review or reconsideration.

18. In a recent judgment in S. Nagaraj v. State of Karnataka, JT 1993 (5) SC 27 to which one of us (S. Ratnavel. Pandian, J.) was a party, the following observation has been made while emphasising the power of this Court either recalling or reviewing its own order:

“Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Art. 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Art. 137 of the Constitution. And C1. (c) of Art. 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review and order in civil proceedings on grounds analogous to Order XLVII, Rule 1 of the Civil Procedure Code. The expression, ‘for any other sufficient reason’ in the clause has been given an expanded Meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL, Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice.”

19. In the same case, B. P. Jeevan Reddy, J. in his separate judgment has stated thus:

“It is the duty of the Court to rectify, revise and recall its orders as and when it is brought to its notice that certain of its orders were passed on a wrong or mistaken assumption of facts and that implementation of those orders would have serious consequences. An act of Court should prejudice none. “Of all these things respecting which learned men dispute”, said Cicero, “there is none more -important than clearly to understand that we are born for justice and that right is founded not in opinion but in nature.” This very idea was echoed by James Madison ‘The Federalist No. 51 Page 352). He said:”Justice is the end of Government, It is the end of the Civil Society. It ever has been and ever will be pursued, until it be obtained or until liberty be lost in the pursuit.”

20. “I speak but once” in the sense that we declare the law once but never for many’ moons to come, can never serve as a good policy at all times in the field of construction of law, because a Judge’s opinion as to what the law speaks about, does not always and under all circumstances elicit the approval of his brethren as it may sometimes happen that the e artier Judge might have been mistaken in law or has got lost in the maze of interpretation. Therefore, in exceptional and extraordinary compelling circumstances or under new set of conditions, the Court is on a fresh outlook and in the light of the development of innovative ideas, principles and perception grown along with the passage of time, obliged by legal and moral force to reconsider its earlier ruling or decision and if necessitated even to overrule or reverse the mistaken decision by the application of the ‘principle of retroactive invalidity’. Otherwise even the wrong judicial interpretation that the Constitution or law has received over decades will be holding the field for ages to come without that wrong being corrected. Indeed, no historic precedent and long term practice can supply a rule of unalterable decision.

21. Case laws, including many leading decisions of the Constitution Benches wherein the earlier views expressed and the principles enunciated have been reconsidered and overruled are not wanting. In this connection, it would be germane to refer to an illuminating decision of the Supreme Court of Canada in Queen v, Beauregard, 1987 LRC (Constitution 180) wherein Chief Justice Dickson rejected the “Strict Construction Argument’ in interpretation of constitutional provisions (the Canadian Constitution Act, 1867, S. 100) and observed thus:

“With respect to the first of these arguments, I do not think S. 100 imposes on Parliament the duty to continue to provide Judges with precisely the same type of pension they received in 1867. The Canadian Constitution is not locked forever in a 119- old casket. It lives and breathes and is capable of growing to keep pace with the growth of the country and its people. Accordingly, if the Constitution can accommodate, as it has, many subjects unknown in 1867 airplanes, nuclear energy, hydroelectric power – it is surely not straining S. 100 much to say that the word ‘pension’ admittedly understood in one sense in 1867, can today support federal legislation based on a different understanding of ‘pensions’.”

22. There is a remarkable development in .this area in recent times due to the dynamic judicial activism. Reference may be made to (1) Bengal Immunity Company Limited v. State of Bihar, (1955) 2 SCR 603; (2) Shamsher Singh v. State of Punjab (1975) 1 SCR 814 ; (3)Union of India v. Sankal Chand Himatlal Sheth (1978) 1 SCR 423 at 483; (4) Delhi Transport Corporation v. D.T.C. Mazdoor Congress, (1991) 1 Suppl. SCC 600; (5) Subhesh Sharma v. Union of India, (1990) 2 Suppl. SCR 433; (6) Kihoto Hollohan v. Zachillhu, (1992) 2 Supp SCC 651 ; (7) Indra Sawhney v. Union of India, (1992) 3 Suppl. SCC 210 and (8) Union of India v. Tulsi Ram Patel, (1985) 2 Suppl. SCR 131 at pages 273 and 274.

23. In addition to the above, there are some outstanding Decisions of this Court which found certain constitutional amendments being violative of the basic structure of the Constitution and consequently declared those amendments void. Vide His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala, 1473 (Supp) SCR I decided by a Bench of 13 Judges which overruled the proposition of law propounded in I. C. Golak Nath v. State of Punjab (1967) 2 SCR 762.

See also (1) Waman Rao v. Union of India (1981) 2 SCR 1; (2) Minerva Mills Ltd. v. union of India (1981) 1 SCR 206; (3) Synthetics and Chemicals Ltd. v. State of U.P., (1989) 1 Suppl. SCR 623; (4) Secretary, Irrigation Department, Government of Orissa v. G. C. Roy (1992) 1 SCC 508. ( 5) Raghunathrao Ganpatrao v. Union of India, JT 1993 (1) SC 374; and (6) R. C. Poudyal v. Union of India, 1993 (1) Scale 489 (sic) .

24. In Poudyal’s case (supra) the majority view of thus.

“In the interpretation of a constitutional document, “words are but the framework of concepts and concepts may change more than words themselves”. The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of the words without an acceptance of the line of their growth.”

25. It is on account of our earnest inquisitiveness for healthy judiciary and love for justice, we shall probe the physiology of the judicial system and strive to answer these two structural questions, posed for examination purely on an objective test with utmost detachment and fairness, and free from every form of interest, loyalty, obligation or prior commitment since the decision to be pronounced on the interpretation of the relevant constitutional provisions is intended to ensure a fortress to protect the independence of judiciary.

26. We shall presently narrate the chronology of events and the mass of enthralling historical material including the opinion of some learned outstanding Judges here and elsewhere, eminent jurists and the Law Commissions that necessitated the reconsideration of the decision in Gupta’s case (supra).

(1) In the order of reference dated 26-10-1990 made in Writ Petition No. 1303 of 1987 (along with Writ Petitions Nos. 1303 of 1985 and 302 of 1987) vide Subhesh Sharma’s case (supra), it has been pellucidly observed that the correctness of the majority view in Gupta’s case (supra) requires reconsideration by a larger nine-Judges Bench.

(2) Be it noted that even the majority in Gupta’s case (supra) appears to have been not satisfied with what they perceived to be the constitutional scheme of appointment of Judges, viz. that the ultimate power of selection and appointment of Judges in the Supreme Court and High Courts rest with the Central Government.

In fact, Bhagwati, J. (as the learned Chief Justice then was) who delivered the main judgment, while responding to the strident criticism that the process of selection and methodology of appointment of Judges to the superior judiciary by the Central Government has eroded the independence of judiciary, has himself made some suggestions in the following words:

“We would rather suggest that there must be a collegium to make recommendation to the President in regard to appointment of a Supreme Court or High Court Judge. The recommending authority should be more broad-based and there should be consultation with wider interests. If the collegium is composed of persons who are expected to have knowledge of the persons who may be fit for appointment on the Bench and of qualities required for appointment and this last requirement is absolutely essential — it would go a long way towards securing the right kind of Judges, who would be truly independent in the sense we have indicated above and who would invest the judicial process with significance and meaning for the deprived and exploited sections of humanity. We may point out that even countries like Australia and New Zealand have veered round to the view that there should be a Judicial Commission for appointment of the higher judiciary.”

The exposition of the above reform suggested and recommended in Gupta’s case (supra) indicates that the learned Judges in that case were not happy to hand over the authority exclusively to the executive – namely “the right of choice” in the selection of candidates to the superior judiciary.

(3) Y. V. Chandrachud, J. who presided over the Indian judiciary for nearly 8 years as Chief Justice of India while inaugurating a seminar at Patna on February 26, 1983 i.e. long after the decision in Gupta’s case (supra) was handed down on December 30, 1981 admitted that the present procedure for selection and appointment of Judges to the superior judiciary is “outmoded “ and should be “given a decent burial”. In his view, the recommendation by the suggested collegium would be far more credible and acceptable than of a single individual in the narrow confines and secrecy of his chamber. Vide R. K. Hegde, The Judiciary Today:A Plea for Collegium 38.

(4) The Law Commission, chaired by Justice D. A. Desai in its 121 st Report on “A new forum for judicial appointments” while recommending the establishment of a National Judicial Commission to serve as a consultative body in the matter of appointment of Judges to the Supreme Court and High Courts, has made its conclusion in Chapter IX under the caption “Corollary” as follows:

“If the structure recommended herein is acceptable, it would necessitate amendment to the Constitution. The power to appoint a Judge of the Supreme Court and a Judge of the High Court, which today vests in the President of India would continue to vest in the President of India. The power has to be exercised under the new dispensation in consultation with the National Judicial Service Commission. To that extent, Article 124, and Art. 217 will have to be amended. Similarly, Arts. 233 and 234 will have to be amended. “

(5) It is quite appropriate, in this context, to recall what Dr. B. R. Ambedkar said during the discussion about the problems, relating to superior judiciary in the draft Constitution. It reads thus:

“It seems to me, in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent which we find in the United States, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day. Similarly, it seems to me that to make every appointment which executive wishes to make subject to the concurrence of Legislature is also not a very suitable provision.”

A number of alternative modes that are in existence in different parts of the globe were also suggested in this regard during the discussion of the draft Constitution by various members for selecting the candidates to man the superior judiciary.

(6) Even in several countries where the power of appointing Judges exclusively and unquestionably vests with the executive, the introduction of some drastic reforms are felt necessary. (i) In United Kingdom, recently opinions were expressed that there must be an advisory body to assist the Lord Chancellor in the matter of selection of personnel for appointment to higher judiciary.

(ii) In 1972, the Justice Sub-Committee on the judiciary recommended that while the Lord Chancellor should retain control of the appointment machinery, he should be helped in his task by a small Advisory Appointment Committee.

(iii) The President of United States of America has established ‘a circuit Judges Nominating Commission’ to recommend names of the best qualified persons for appointment to the United States Court of Appeal.

(iv) The nominee of the President of USA for appointment of a Judge of the Federal Court of USA has to appear before the Senate Judiciary Committee for ‘confirmation hearing’ which usually takes place for a few days and during which the nominee’s legal philosophy and his/her merit is exposed to the public. Then the Senate Judiciary Committee makes its recommendations for or against to Senate which in turn approves or disapproves the candidates.

(v) The Chief Justice of Australia on being dissatisfied with the Australian system for selection and appointment of Judges which provides an opportunity for political influence, advocated in July, 1977 that the time is now ripe for a Judicial Appointments Committee to be set up in Australia composed of Judges, lawyers and, indeed laymen likely to be knowledgeable in the achievements of possible appointees. (Vide Garfield Barwick, “The State of Australian Judicature” 51 Aus, LJ 480.)

(vi) The Royal Commission (of Australia) on Courts, chaired by Justice Beattle, recommended that a Judicial Commission should consider all judicial appointments including appointment of High Court Judges. Vide Harry Gibbs, “The Appointment of Judges”, 61 Aus LJ 7, 8.

Thus, there is a host of proposals and recommendations here in India and elsewhere for bringing vital changes in the existing procedure and methodology in the matter of selection and appointment of Judges to the superior judiciary and for restructuring the entire judicial system.

(7) The Constitution (Sixty-seventh Amendment) Bill, 1990 (Bill No. 93 of 1990) was introduced in Lok Sabha (Parliament) on 18-5-1990, empowering the President to constitute a high level Judicial Commission known as the National Judicial Commission for making recommendation as to the appointment of a Judge of the Supreme Court (other than the Chief Justice of India), a Chief Justice of the High Court and as to the transfer of a Judge from one High Court to any other High Court and the said Commission was to consist of the Chief Justice of India who was to be the chairperson of the Commission and two other Judges of the Supreme Court next to the Chief Justice in seniority and for making recommendation as to the appointment of a Judge of any High Court, the Commission was to consist of the CJI, as chairperson of the Commission, the Chief Minister of the concerned State or if a proclamation under Art. 356 is in operation in that State, the Governor of that State, one more senior most Judge of the Supreme Court, the Chief Justice of the High Court and one other senior most Judge of that High Court.

The ‘Statement of Objects and Reasons’ declared that the Commission to be set up was “to obviate the criticisms of arbitrariness on the part of the Executive. In such appointments and transfers and also to make such appointments without any delay.” The proposed amendment to the Constitution by inserting a new Part XIII A evidently was in view of the recommendations made by the Law Commission of India in its 121 st Report, emphasising the need for a change in the system. By the Amendment Bill, certain amendments were to be brought to Articles 124(2), 217(l), 222(l) and 231(2)(a) to implement the recommendations of the National judicial Commission.

The texture and tone of the amendment and the Statement of Objects and Reasons are in tune with the recommendations of the eminent Judges of this Court, jurists, Bar Associations, outstanding lawyers, Law and various Committees’ for improving the situation in the matter of the appointment of Judges on the diagnosis made by them.

When the referral order was passed on 26-10-1990 by this Court, hoping that the proposed amendment to the Constitution will relieve the grievance long felt by the judiciary in the matter of selection of proper and fit personnel and their appointment to the superior judiciary, the Constitution Amendment Bill was pending before the Parliament. It was only having regard to the said Bill, this Court stated in para 50 of its judgment in Subhesh Sharma’s case (supra) thus:

“In the event of the Amendment being carried and a National Judicial Commission being set up, the correctness of the ratio in S. P. Gupta’s case (supra) of the status of the Chief Justice of India may not be necessary to be examined in the view of the fact that by the Amendment the Chief Justice of India would become the Chairman of the Commission. In case the commission is not constituted, the two questions indicated above which are of vital importance to the efficient functioning of the judicial system in the country require consideration and there is an element of immediacy in the matter. We, therefore, suggest that the writ petition on the two issues indicated above may be taken up for hearing at an early date and preferably before the end of this year.”

(Emphasis supplied)

Though the passing of the amendment and its implementation had been watched with bated breath and awaited with a great deal of anxiety, nothing tangible in this regard had come out but on the other hand, the Bill unfortunately lapsed consequent upon the dissolution of the 9th Lok Sabha and there does not seem to be any ray of hope for the revival of the Bill.

27. It was only in the above brief historical recapitulation including the opinion of the experienced Judges and jurists etc. etc. and the compelling necessity, we now in the eleventh hour, boldly set ourselves with renewed energy to the task of reconsidering the decision in Gupta’s case (supra) on a proper and just interpretation of the relevant constitutional provisions and definitely not on an imaginative reinterpretation and to explore the situation as to whether the needed changes could be made by ourselves rather than by legislative process by entering into the realm of the original intention. of the Constitution thereby undoubtedly ensuring a palladium to protect the independence of judiciary from being violated or impaired or damaged. Otherwise we apprehend that strikingly disastrous and calamitous results would follow in the proper functioning of the judiciary and that the system itself would become dysfunctional.

28. A battery of eminent senior counsel, M / s. F. S. Nariman, Ram Jethmalani, Kapil Sibal P. P. Rao and Shanti Bhushan consistently articulated demanding reconsideration of the decision in Gupta’s case (supra) and expanded their argument by enlightening the various constitutional provisions with their extensive scholarly knowledge. According to them, beneath the surface of the ruling in Gupta, lie more fundamental questions concerning the role of the CJ1 in the area of selection and appointment of Judges to the superior judiciary as well as transfer of Judges from one High Court to another and fixation of Judges strength, After making an extensive analysis of the present procedure followed, it has been seriously contended that the absolute ‘right of primacy’ and ‘freedom of choice’ in the field of selection and appointment of Judges now exclusively vested with one of the major constitutional functionaries, namely, the Executive that too with the judicial stamp of approval of this Court in Gupta, normally ends up with the excessive politicalization of the constitutional process which resultantly causes great harm to the institution and erodes the very foundation of constitutionalism and the ‘Rule of Law’. In continuation of their submission, it has been contended that on account of the methodology in vogue, the very precious constitutional rights are at stake and need ‘breathing space to survive’ and that a prophylactic prohibition on all intrusions of this sort is, therefore, essential.

29. All the counsel eloquently raise a debatable question as to how any coarctation be imposed on the authority of judiciary and the independence of judiciary being kept in pensileness, when the Constitution itself recognises a clear demarcation separating the judiciary from the executive under Art. 50 which injects the enduring principle of constitutional policy and which is the underlying strength for a sound judicial system.

30. Notwithstanding the above chorus of protest in general against the decision of the majority in Gupta, there was a small cleavage of opinion, in that while some learned Judges held the view that the opinion of the CJI in all matters of judicial administration should receive ‘primacy’, others were of the view that in exceptional circumstances the executive may veto the proposal of the CJI. for sufficient and strong reasons to be recorded and communicated to the CJI. Likewise, there was some difference of opinion with regard to the extent of justiciability in the matter of fixation of Judge strength.

31. Mr. Parasaran, the learned senior counsel appearing for the Union of India and the learned Attorney-General offering his valuable assistance to the Court on notice, with their sound knowledge of constitutional law and intellectual capabilities denounced the submissions made on behalf of the petitioners, stating that in utter disregard to the intent of the framers of the Constitution, all the counsel seeking reconsideration of Gupta’s case (supra) are making a futile attempt to undo and unsettle the well reasoned principles enunciated in Gupta’s case (supra) by imposing their personal values and reading their personal philosophy into the Constitution under the guise of ‘original intent’ of the Constitution and that the tenor of their argument was tainted with visible hostility indicating their predetermination to ricochet the views in Gupta by assigning an invented legalistic nod by wrongly construing the constitutional provisions and drawing strained inferences.

32. Illuminating every aspect of the vital issues involved, Mr. Parasaran furthers his argument saying that the plea of primacy to the opinion of the CJI had been discussed threadbare and ultimately discarded by the Constituent Assembly and despite this, the Court in Gupta indeed tended to emphasise the primacy of CJI, even if not in express language and that, therefore, the principles laid down in Gupta which are holding the field till date and successfully and satisfactorily working in the area of making appointment of Judges in no way call for any interference or radical change. According to him, the present constitutional scheme which was evolved by the framers of the Constitution after taking into consideration the legislative history, Constituent Assembly debates and various modes of appointments in different countries particularly U.K. and U.S.A. wherein the executive alone enjoys the authority in making appointments is basically sound.

33. Drawing our attention to various relevant constitutional provisions, it has been contended that the independence of judiciary is well protected. According to him, the submission made by the other side on the basis of Art. 50 is not well founded and that the Constitution does not even remotely suggest the exclusion of the role of executive in the matter of appointment of Judges to the superior Courts.

34. The learned Attorney-General in addition to his general submission urged that the opinion of the CJI had received the utmost acceptance in the actual working of the system except on one occasion during the last decade, and undue delay, if any, in making the appointment of Judges can be rectified and remedied by issue of mandamus to the appointing constitutional functionary and ultimately requested acceptance of the view of Pathak, J. (as the learned Chief Justice then was) in Gupta’s case (supra).

35. Among the various States which their appearance on notice represented by their respective learned, Advocates-General, the State of Karnataka has urged for reconsideration of the majority opinion in Gupta’s case (supra) whereas the other States namely Gujarat, Assam, Sikkim and Orissa have fully supported the decision in Gupta. The State of Meghalaya does not express any positive opinion either way. The plea of the State of Nagaland is for the primacy to the opinion of CJI and also appointment of a National Judicial Commission.

36. The learned Advocate-General of Sikkim by his oral submission affirmed the stand taken by his State and added that according primacy exclusively to the executive in the decision in question does not suffer from any infirmity.

37. Mr. R. K. Garg, the learned senior counsel forcefully advanced his submission with his usual eloquence using his formidable legal knowledge in constitutional law and his vast and rich practical experience and analysing various provisions under separate heads in the light of the well recognised concept of jurisprudence that the appointment must not be a manifestation of an absolute power in the executive but of the power to appoint with due consideration of the expert opinions, sought through effective consultation with CJI and CJ of the concerned High Court, that the opinion of the CJI must have primacy in the event of any unfortunate, piquant and undesirable situation leading to difference of opinion among three constitutional functionaries and that the decision in Gupta is bad law so far as it gives the appointing power to the executive ignoring the recommendation of CJI and Chief Justice of High Courts. The learned counsel also supports the view of Pathak, J. in Gupta as being a balanced view and more acceptable.

38. Apart from the above arguments, some more written submissions were filed, i.e. by the Sub-Committee of Judicial Accountability, by Mr. Prashant Bhushan, and the Delhi High Court Bar Association.

39. At the outset, we make it clear that we are not called upon to deal with any specific case, but to broadly lay down only the important principles and the general controversial problems involved.

40. We shall now unbiasedly proceed to judiciously examine the above highly sensitive issues involving constitutional importance without being influenced either by emotional and sentimental aspects or hostility or by the dazzling eloquence of the counsel putting forth their rival arguments in support of their conflicting views and without any passion or prejudice.

41. Since the entire arguments were advanced mainly on the principle of independence of judiciary, we shall dispose that question at the foremost.

42. Mr. Parasaran, elaborated his argument; submitting that the President, being the constitutional head of the three major constitutional functionaries makes the appointment of Judges to the Supreme Court and the High Court on the aid and advice of the Council of Ministers with the Prime Minister at the head as contemplated under Arts. 124(2) read with 74(l) and 217(l) read with 74(l) of the Constitution of India as the case may be; that in that process it is only ,the executive which plays an important role but the CJI is only a consultee and that the independence of judiciary is in no way impaired by executive action but on the other hand it is firmly secured by various specific provisions, expressly articulated in the Constitution along with the extraordinary power of judicial review. They are:

(a) Every person appointed to be a Judge of the Supreme Court or of a High Court before he enters upon his office, makes and subscribes an oath of affirmation according to Forms Nos. IV and VIII as the case may be, as set out in the Third Schedule to the Constitution; before the authority prescribed under Arts. 124(6) and 129 respectively whereby the Judge concerned bears true faith and allegiance only to the Constitution of India and not to the appointing authority (vide Special Reference No. 1 of 1964 (1965) 1 SCR 413 at 447 F-H 448 A-B:(AIR 1965 SC 745 at pp. 763 and 764)) (b) The tenure of office that the appointee holds is fixed by the Constitution itself stating that the Judge appointed shall hold office until he attains the age of sixty five years in the case of the Supreme Court as per Art. 124(2) and of sixty two in the case of a High Court as per Art. 219, but not at the pleasure of the appointing authority.

(c) Every Judge of the Supreme Court or a High Court is entitled to such privileges, allowances, and to such rights in respect of leave of absence and pension as determined by and under law, made by the Parliament and they shall not be varied to his disadvantage after his appointment as guaranteed by Arts. 125(2) and 221(2).

(d) The salaries, allowances and pensions payable to the Judges of the Supreme Court are charged on the Consolidated Fund of India as mandated by Art. 112(3)(d)(i). In the case of a High Court Judge the expenditure in respect of the salaries and allowances are charged on the Consolidated Fund of each State as mandated by Article 202(3)(d) but the pensions payable to the High Court Judges are charged on the Consolidated Fund of India according to Art. 112(3)(d)(iii) of the Constitution.

The expenditure so charged on the Consolidated Fund of India shall not be submitted to the vote of Parliament though nothing prevents the discussion in either House of Parliament of any those estimates (vide Art. 113(1)). Similarly the expenditure charged on the Consolidated Fund of a State shall not be submitted to the vote of Legislative Assembly, but nothing prevents the discussion in the Legislature of any of those estimates (vide Art. 203(l)).

(e) A Judge of the Supreme Court or a High Court cannot be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

The above procedure for removal of a Judge is embodied in Art. 124(4) as regards the Supreme Court Judges and in proviso (b) to Art. 217(l) read with Art. 124(4) as regards the High Court Judges. In other words, the same procedure mutatis mutandis applies to the High Court Judges.

(f) No discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or a High Court in the discharge of his duties except upon a motion before the Parliament but not in the legislature of a State for presenting an address to the President praying for the removal of the Judge as provided in the Constitution (vide Arts. 121 and 211).

(g) Both the Supreme Court and every High Court are Courts of record, having all powers of such a Court including the inherent power to punish for contempt of themselves as empowered by Arts. 129 and 215 respectively. (See Pritam Pal v. High Court of Madhya Pradesh, Jabalpur, (1993) 1 Suppl. SCC 529.

(h) The entire judicial proceedings are in open Court, unless the Courts in rare and exceptional circumstances decide otherwise. The Judges are ensured total freedom, of course, after entering the office, from any overt or covert pressure or interference in the process of adjudicating causes brought before them. In this connection Mr. Parasaran drew our attention to a sentence from the book on “Constitutional Laws” (8th Edn. page 32) by E.C.S. Wade and A. W. Bradly, which reads thus:

“………judicial independence is secured by law and public opinion and the standard of conduct maintained by both Bench and Bar.”

(i) Both Supreme Court and High Courts have jurisdiction of judicial review of all actions of “the State” as defined in Art. 12 and all other statutory authorities. Recently it has been ruled in Sub-Committee on Judicial Accountability v. Union of India (1991) 4 SCC 699 that even in relation to proceedings for impeachment of a Judge, there is an area of judicial review.

43. After listing out the constitutional rights and privileges of the Judges vis-a-vis the other constitutional appointees – namely the Comptroller and Auditor General of India and the Chief Election Commissioner (vide Art. 148 and proviso to Art. 324(5)) as regards the security of tenure of office, irremovability from the office and ensuring of the conditions of service, Mr. Parasaran reaffirms his earlier submissions that the elimination of executive action in the process of appointment is not at all necessary to secure judicial independence. Relying on the ruling in Re The Special Courts Bill (1979) 2 SCR 476 he has urged that the ‘pleasure doctrine’ which is subversive of judicial independence is neither attracted nor applicable in the matter of removal of Judges of Supreme Court except as provided for under Art. 124(4) and High Court Judges except as provided for under Proviso (b) to Art. 217(2) read with Article 124(4) and added that this safeguard vouchsafes the judicial independence.

44. By way of supplementing the argument of Mr. Parasaran, it has been urged on behalf of some State Governments on a few tautological reasonings that when the pronouncement of this Court is to be accepted as the final verdict binding all including the other primary constitutional functionaries, unless it is so plainly erroneous in the light of subsequent consideration, the decision in Gupta’s case (supra) in which the principle of independence of judiciary is exhaustively considered and correctly decided, does not require to be taken to the legal smithy for either mending or tinkering with the view, already declared, According to them, the existing constitutional protective conditions attached to the judicial office are more than sufficient to preserve the independence of the judiciary.

45. During the supplementary submission, much reliance was placed on the views of Desai, J. in his separate judgment in Gupta’s case (supra) holding:

“Independence of judiciary under the Constitution has to be interpreted within the framework and the parameters of the Constitution. There are various provisions in the Constitution which indicate that the Constitution has not provided something like a ‘hands off attitude’ to the judiciary.”

46. Quoting the various procedures in vogue in different parts of the globe – particularly in U.S.A. and U. K. – wherein the executive is exclusively vested with the power of making, judicial appointments to higher judiciary, it has been said that when the judicial independence has never been injured in those countries by the existing process, the contention that the mode of appointment of Judges from the starting point goes a long way in securing the independence of judiciary cannot be countenanced. They were passionate in quoting some supporting passages of their views from various text books on the formation of judicial system in those countries.

47. The above arguments, that the independence of judiciary is satisfactorily secured by the Constitutional safeguard of the office that a Judge holds and guarantees of the service Conditions alone and not beyond that, are in our considered opinion untenable. In fact we are unable even to conceive such an argument for the reason to be presently stated.

48. When it is well recognised that the Courts are an impenetrable bulwark against every assumption of power in the legislative or executive and that the understanding of the Courts and respect for their authority by the people are greatly influenced by adjudicative, dispensation of justice by the presiding impartial Judges “without fear or favour, affection or ill-will”, can it be rightly said that the assurance of the immutable rights and privileges in respect of service conditions alone are sufficient to achieve the independence of judiciary and to protect it from being impaired and no other condition is required? Our answer to this nagging question would be in the negative.

49. No doubt true, that the Constitutional assurances, relating to the basic service conditions are absolutely necessary to protect the independence of the judiciary but in our view they are not the be all and end all. More than the above, one other basic and inseparable vital condition is absolutely necessary for timely securing the independence of judiciary; that concerns the methodology, followed in the matter of sponsoring, selecting and appointing a proper and fit candidate to the (Supreme Court or High Court) higher judiciary. The holistic condition is a major component that goes along with other constitutionally guaranteed service conditions in securing a complete independence of judiciary. To say differently, a healthy independent judiciary can be said to have been firstly secured by accomplishment of the increasingly important condition in regard to the method of appointment of Judges and, secondly, protected by the fulfillment of the rights, privileges and other service conditions. The resultant inescapable conclusion is that only the consummation or totality of all the requisite conditions beginning with the method and strategy of selection and appointment of Judges will secure and protect the independence of the judiciary. Otherwise, not only will the credibility of the judiciary stagger and decline but also the entire judicial system will explode which in turn may cripple the proper functioning of democracy and the philosophy of this cherished concept will be only a myth rather than a reality.

50. The essence of the above deliberation and discussion is that the independence of judiciary is the livewire of our judicial system and if that wire is snapped, the ‘dooms day’ of judiciary will not be far off.

Concept of Independence of the Judiciary

51. Faced with the unpleasant reality of the present system in vogue, we shall examine what the concept of independence of judiciary means in the background of the breathtaking and cascading argument, advanced by both the parties, of course with the motive of invigorating the judicial system and emphasizing the importance of its various aspects which is absolutely indispensable for ensuring the ‘Rule of law’, as adumberated by the Constitution.

52. Our Constitution is a radiant and vibrant organism and under the banner of Sovereign, Socialist, Secular, Democratic Republic, steadily grows spreading the fragrance of its glorious objectives of securing to all citizens:Justice, Social Economic and Political.

53. For securing the above cherished objectives equally to all citizens irrespective of their religion, race, caste, sex, place of birth and the socio-economic chronic inequalities and disadvantages, the Constitution having very high expectations from the judiciary, has placed great and tremendous responsibility, assigned a very important role and conferred jurisdiction of the widest important role and conferred jurisdiction of the widest amplitude on the Supreme Court and High Courts, and for ensuring the principle of the ‘Rule of Law’ which in the words of Bhagwati, J. (as the learned Chief Justice then was) “runs through the entire fabric of the Constitution.” To say differently, it is the cardinal principle of the Constitution that an independent judiciary is the most essential characteristic of a free society like ours.

54. Having regard to the importance of this concept the framers of our Constitution having before them the views of the federal Court and of the High Court have said in a memorandum:

“We have assumed that it is recognised on all hands that the independence and integrity of the judiciary in a democratic system of government is of the highest importance and. interest not only to the judges but to the citizens at large who may have to seek redress in the last resort in courts of law against any illegal acts or the high-handed exercise of power by the executive………..in making the following proposals and suggestions, the paramount importance of securing the fear less functioning of an independent and efficient judiciary has been steadily kept in view. Vide The Framing of India’s Constitution Volume IB Page 196 by B. Shiva Rao.

55. In this context, we may make it clear by borrowing the inimitable words of Justice Krishna Iyer, “Independence of the Judiciary. is not genuflexion, nor is it opposition of Government”. Vide Mainstrem – November 22, 1980 and at one point of time Justice Krishna lyer characterised this concept as a “Constitutional Religion”.

56. Indisputably, this concept of independence of judiciary which is inextricably linked and connected with the constitutional process related to the functioning of judiciary is a “fixed-star” in our constitutional consultation and its voice centres round the philosophy of the Constitution. The basic postulate of this concept is to have a more effective judicial system with its full vigour and vitality so as to secure and strengthen the imperative confidence of the people in the administration of justice. It is only with the object of successfully achieving this principle and salvaging much of the problems concerning the present judicial system, it is, inter alia, contended that in the matter of appointment of Judges to the High Courts and Supreme Court ‘primacy’ to the opinion of the CJI which is only a facet of this concept, should be accorded so that the independence of judiciary is firmly secured and protected and the hyperbolic executive intrusion to impose its own selectee on the superior judiciary is effectively controlled and curbed.

57. Regarding the significance of this principle, Chandrachud, J. (as the learned Chief Justice then was) in Union of India v. Sankal Chand Himatlal Sheth (1978) 1 SCR 423 said that the independence of judiciary is the ‘cardinal feature’ and observed that the judiciary which is to act as a bastion of the rights and freedom of the people is given certain constitutional guarantees to safeguard the independence of judiciary.

58. Bhagwati, J. (as the learned Chief Justice then was) who led on behalf of the minority observed in the same judgment i.e. Union of India v. Sankal Chand Himatlal Sheth (supra) observed:

“……………….. the independence of judiciary is a fighting faith of our Constitution. Fearless justice is a cardinal creed of our founding document …………

Justice, as pointed out by this Court in Shamsher Singh v. State of Punjab (1975) 1 SCR 814 can become “fearless and free only if institutional immunity and autonomy are guaranteed.”

59. Again Bhagwati, J. in Gupta case has said in paras 223-224 as follows:

“The concept of independence of judiciary is a noble concept with inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective.

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But it is necessary to remind ourselves that the concept of independence of the judiciary is not limited only to independence from executive pressure or influence that it is a much wider concept which takes within its weep, independence from many other pressures and prejudices.

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Judges should be of stern stuff and tough fibre, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says, “Be you ever so high, the law is above you”. This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community. It is this principle of independence of the judiciary which we must keep in mind while interpreting the relevant provisions of the Constitution.”

60. Fazal Ali, J. in his judgment in Gupta’s case (supra) in para 320 has held (supra): “…………….that independence of judiciary is doubtless a basic structure of the Constitution but the said concept of independence has to be confined within the four corners of the Constitution and cannot go beyond the Constitution.”

61. Tulzapurkar, J. in para 634 of his judgment in Gupta’s case (supra) has pointed out:

“Such a literal construction is difficult to accept because no provision of the Constitution can be interpreted in a manner which will be in conflict with any of the basic features of the Constitution and the cardinal principle of independence of judiciary is one such basic feature; therefore, the construction to be put on the phrase in the article must be consistent with the said principle.”

62. Venkataramiah, J. (as the learned Chief Justice then was) in the same case did not go so far but observed that it is “one of the central values on which our Constitution is based”. Vide para 1051.

See also (1) Union of India v. J. P. Mitter (1971) 3 SCR 483 ; (2) Sub-Committee on Judicial Accountability v. Union of India (supra); and (3) Kumar Padmaprasad v. Union of India (1992) 2 SCC 428.

63. There is a plethora of judicial pronouncement on this concept, but we think that it is not necessary to recapitulate all those decisions and swell this judgment, except saying that to have an independent judiciary to meet all challenges, unbending before all authorities and to uphold the imperatives of the Constitution at all times, thereby preserving the judicial integrity, the person to be elevated to the judiciary must be possessed with the highest reputation for independence, uncommitted to any prior interest, loyalty and obligation and prepared under all circumstances or eventuality to pay any price, bear any burden and to meet any hardship and always wedded only to the principles of the Constitution and ‘Rule of Law’. If the selectee bears a particular stamp for the purpose of changing the cause of decisions bowing to the diktat of his appointing authority, then the independence of judiciary cannot be secured notwithstanding the guaranteed tenure of office, rights and privileges, safeguards, conditions of service and immunity. Though it is illogical to spin out a new principle that the key note is not the Judge but the judiciary especially when it is accepted in the same breath that an erroneous appointment of an unsuitable person is bound to produce irreparable damage to the faith of the community in the administration of justice and to inflict serious injury to the public interest and that the necessity for maintaining independence of judiciary is to ensure a fair and effective administration of justice. Further, if this prized concept is injured or maimed even from inside by self-infliction, the invaluable judicial independence will be devalued and debased.

64. The above fallacious principle receives a fitting reply from the 14th Report of the Law Commission 73 in which the following opinion of a High Court Judge is quoted:

“If the State Ministry (Minister in the State Government) continues to have a powerful voice in the matter, in my opinion, in ten years’ time, or so, when the last of the Judges appointed under the old system will have disappeared, the independence of the judiciary will have disappeared and the High Courts will be filled with Judges who owe their appointments to politicians.”

65. Shri M. C. Setalvad, who was a most distinguished jurist and Attorney General and known for his impeccable integrity and sturdy independence and who presided over the 14th Law Commission had painfully stated in his Report that the Commission, during its visits to all the High Court Centres, heard ‘bitter and revealing criticisms about the appointment of Judges’ and that ‘the almost universal chorus of comment is that the selections are unsatisfactory and that they have been inducted by executive influence.

66. Mr. Ram Jethamalani, senior counsel after pointing out certain infirmities in Gupta’s case (supra) to demonstrate the baneful effects on public welfare of a practice of appointment, sanctified by it forcibly stated that the creed of judicial independence in our constitutional religion and the executive continue to imperil this basic tenet and quoted the word of Krishna Iyer, J. from the judgment in Sankal Chand (supra) reading “This Court must ‘do or die’ “.

In Bradley v. Fisher (1871) 😯 US 335 it was said:

“Our judicial system is guided by the principle that a judicial officer, in exercising the authority vested in him must be free to act upon his own connections without apprehension of personal consequences to himself.”

67. As Dr. Robert Mac Gregor Dawson has pointed out that “the Judge must be made independent of most of the restraints, checks and punishments which are usually called into play against other public officers…..” and he should be “devoted to the conscientious performance of his duties”.

68. In Subhesh Sharma (supra), It has been rightly observed “for Rule of Law to prevail, judicial independence is of prime necessity.”

69. As we are going to deal with this aspect in detail, while examining the most important question, concerning the primacy of the opinion of CJI under a separate heading, this aspect need not detain us any more in disposing of the rival contentions of the parties with regard to the principle of independence of judiciary.

Separation of Judiciary from executive

70. By way of meeting the arguments advanced on behalf of petitioners with reference to Art. 50, it has been submitted by Mr. Parasaran that Art. 50 cannot be availed of with regard to the appointment of Judges to the Supreme Court and High Courts especially in the context of independence of judiciary. We shall now consider the independence of judiciary vis-a-vis separation of power.

71. According to Mr. Jethamalani Gupta’s case (supra) paid no attention or certainly not adequate attention to the mandate of Art..50 and its implications and effect on the interpretation of Arts. 124 and 217 and also over-looked the impact of Art. 51 (A) and that Art. 50 is the culmination of a long drawn out movement and struggle for judicial independence. In support of this contention, our attention was drawn to the report of a Commission appointed in 1946 in Bombay consisting of eleven members, headed by a Judge of the Bombay High Court in which the unanimous conclusion, recorded was that the separation of judicial and executive functions was a feasible and practical proposition.

72. By way of meeting the above contention, Mr. Parasaran has stated that the reference to Art. 50 in the context of the independence of the judiciary relating to appointment of Judges to Supreme Court and High Courts is not appropriate; but it is only in the context of District and Subordinate Magistrates exercising both executive and judicial functions; to say in other words, the principle is that the same person should not be a member of both executive and judiciary. In support of his contention, he draws inspiration from (1) a passage found in ‘Constitutional Law’, Eighth Edition by E.C.S. Wade and A. W. Bradley, under the heading “Meaning of Separation of Powers” reading that “one organ of Government should not control or interfere with the exercise of its function by another organ”; (2) the Constituent Assembly Debates relating to Draft Art. 39-A; (3) “The Framing of Indian Constitution – A Study” by B. Shiva Rao (Page 507) and; (4) a passage in “Encyclopedia of American Constitution, 1986 Edition Vol. IV- Union of India Compilation Page 195 (B) under the heading “Separation of Powers” reading thus:

“The doctrine of the separation of powers consists of a number of elements; the idea of three separate branches of government, the legislature, the executive and the judiciary; the belief that there are unique functions appropriate to each branch of the government should be kept distinct, no one Person being able to be a member of more than one branch of government at the same time.”

73. For properly appreciating the above rival contentions and understanding the implication of Art. 50, we shall first of all go to its historical background.

74. Article 50 appears in para IV dealing with “Directive Principles of State, Policy” under the heading ‘Separation of Judiciary from Executive’ and it reads as follows:,

“Article 50 – The State shall, take steps to separate the judiciary from the executive in the public services of the State.”

75. In the draft Constitution, there was no reference to this Directive Principle, but on being reminded of the important plank of the freedom movement, Article 39A was introduced which reads thus:

“39A. The State shall take steps to secure that, within a period of three years from the commencement of this Constitution, there is separation of the judiciary from the executive in the public services of the State.”

76. The Drafting Committee in the amendment purposefully had used the expression ‘complete separation of the judiciary etc.’; the Special Committee, however, considered. that the word ‘complete’ was unnecessary, and this word has accordingly been omitted.

77. Thereafter, the time limit of three years within which this directive was to be implemented was omitted at the final stage and Art. 39-A became Art. 50 in the present form.

78. During the Constituent Assembly Debates on Art. 39-A, one of the members, Shri R. K. Sidwa on 25th November 1948 made the following pertinent observation:

“As Dr. Ambedkar stated yesterday, ever since its inception the Congress has been stating that these two functions must be separated if you really want impartial justice to be done to the accused persons.

The arguments advanced yesterday were that in Free India the conditions have changed and that therefore, it is not desirable that these two functions should be separated. The real secret, so far as I know, of those who advocate retaining the same position is that they want to retian their power. If the Honourable Ministers of the provincial Governments feel that these two should not be separated, it is because they feel the power of appointments which is in their patronage, would go away from them to the High Court Judges.”

79. The above speech of Shri Sidwa makes it clear that implementation of Art. 50 involves as a necessary consequence the power of appointment being taken away from the Executive and its transference to the Judiciary. Article 50 being one of the fundamental principles of governance of the country and constitutionally binding on the government, the latter is obviously obliged voluntarily to refrain from any interference in judicial appointments and reduce its role to one which is purely formal or ceremonial, ensuring that the decisive factor is the wish and will of the judicial family.

80. Prime Minister Jawaharlal Nehru reacted to this on behalf of the Government and declared:

“I may say straight off that so far as the Government is concerned, it is entirely in favour of the separation of the judicial and executive functions. I may further say that the sooner it is brought about the better.”

81. Realising the significance of the independence of judiciary and in order to give a full life to that concept, the founding fathers of our Constitution, felt the need of separation of judiciary from executive and designedly inserted Art. 50 in the Constitution after a heated debate; because the judiciary under our constitutional scheme has to take up a positive and creative function in securing socio-economic justice to the people.

82. Bhagwati, J. (as the learned Chief Justice then was) in Sankal Chand (supra) after quoting various constitutional provisions, speaking about the privileges, rights and tenure of office of Judges of the higher judiciary while dealing with the concept of independence of Judiciary described the role of .Art. 50 as follows: “And hovering over all these provisions like a brooding omnipresence is Art. 50 which lays down, as a Directive Principle of State Policy, that the State shall take steps to separate the judiciary from the executive in the public services of the State. This provision, occurring in a chapter which has been described by Granvile Austin as “the conscience of the Constitution” and which embodies the social philosophy of the Constitution and its basic underpinnings and values, plainly reveals, without any scope for doubt or debate, the intent of the constitution-makers to immunise the judiciary from any form of executive control or interference.

83. Chandrachud, J. (as the learned Chief Justice then was) speaking for the majority did not by any means dissent from or dilute this basic tenet and he while making reference to various provisions of the Constitution to secure and safeguard the independence of the judiciary, referred to Art. 50 stating, “Article 50 of the Constitution which contains a Directive Principle of State Policy, provides that the State shall take steps to separate the judiciary from the executive in the public services of the State.

84. In M. M. Gupta v. State of Jammu and Kashmir (1982) 3 SCC 412, A. N. Sen, J. in his separate judgment speaking for himself and on behalf of Bhagwati, J. observed thus:

“Various Articles in our Constitution contain the relevant provisions for sefeguarding the independence of the judiciary. Article 50 of the Constitution which lays down that “the State shall take steps to separate the judiciary from the executive in the public services of the State”, postulates separation of the judiciary from the executive.”

85. In Gupta’s case (supra), Bhagwati, J. who spoke for the majority has not made reference to Art. 50 though he did refer to that Article in Sankal Chand (supra).

86. From the above deliberation, it is clear that Art. 50 was referred to in various decisions by the eminent Judges of this Court while discussing the principle of independence of the judiciary. We may cite Art. 36 which falls under Chapter IV (Directive Principles of State Policy) and which reads thus:

“Article 36 – In this Part, unless the context otherwise requires, “the State” has the same meaning as in Part III.”

87. According to this Article, the definition of the expression “the State” in Article 12 shall apply throughout Part IV, wherever that word is used. Therefore, it follows that the expression “the State” used in Art. 50 has to be construed in the distributive sense as including the Government and Parliament of India and the Government and the Legislature of each State and all local or other authorities within the territory of India or under the control of the Government of India. When the concept of separation of the judiciary from the executive is assayed and assessed that concept cannot be confined only to the subordinate judiciary, totally discarding the higher judiciary. If such a narrow and pedantic or syllogistic approach is made and a constricted construction is given, it would lead to an anomalous position that the Constitution does not emphasise the separation of higher judiciary from the executive. Indeed, the distinguished Judges of this Court, as pointed out earlier, in various decisions have referred to Art. 50 while discussing the concept of independence of higher or superior judiciary and thereby highlighted and laid stress on the basic principle and values underlying Art. 50 in safeguarding the independence of the judiciary.

The Power of appointment of Judges and the primacy to the opinion of the CJI thereof

88. The key and substantial questions that spring up for deep consideration among the various topical issues and that were hotly debated before us are, firstly, as to where the power of appointment of Judges of the Supreme Court and the High Courts is located; secondly, who is the final authority to make the appointments of those Judges; thirdly, whether there are any canalised guidelines in making the appointments; fourthly. whether the power of appointment of Judges vested in the constitutional functionaries is unfettered and uncircumscribed; and fifthly, whether the opinion expressed by the CJI who is one of the three principal constitutional functionaries during the mandatory consultation required by the Constitution has primacy over the opinion of the other constitutional functionaries?

89. In a democratic polity, the supreme power of the State is shared among the three principal organs – constitutional functionaries – namely, the legislature, the executive and the judiciary. Each of the functionaries is independent and supreme within its allotted sphere and none is superior to the other. As pointed out in Subhesh Sharma (supra), justice has to be administered through the Courts and such administration would relate to social, economic and political aspects of justice as stipulated in the preamble of the Constitution and the judiciary, therefore, becomes the most prominent and outstanding wing of the constitutional system of fulfilling the mandate of the Constitution.

90. The constitutional task assigned to the judiciary is in no way less than that of other functionaries – legislative and executive. Indeed, it is the role of the judiciary in carrying out the constitutional message, and it is its responsibility to keep a vigilant watch over the functioning of democracy in accordance with the dictates, directives, and imperative commands of the Constitution by checking excessive authority of other constitutional functionaries beyond the ken of the Constitution. In that sense, the judiciary has to act as a sentinel on the qui vive.

91. Regrettably, there are some intractable problems concerned with judicial administration starting from the initial stage of selection of candidates to man the Supreme Court and the High Courts leading to the present malaise. Therefore, it has become inevitable that effective steps have to be taken to improve or retrieve the situation. After taking note of these problems and realising the devastating consequences that may flow, one cannot be a silent spectator or an old inveterate optimist, looking upon the other constitutional functionaries, particularly the executive, in the fond hope of getting invigorative solutions to make the justice delivery system more effective and resilient to meet the contemporary needs of the society, which hopes, as experience shows, has never been successful. Therefore, faced with such a piquant situation. It has become imperative for us to solve these problems within the constitutional fabric by interpreting the various provisions of the Constitution relating to the functioning of the judiciary in the light of the letter and spirit of the Constitution.

92. We, before starting with these onerous task, would like to make it clear that it is not an attempt to get the judiciary locked up in a power struggle either for social aristocracy or judicial imperialism of its own or for any vainglory of establishing judicial supremacy over and above all other constitutional functionaries but only to enjoy its legitimate right of demanding recognition of primacy to the opinion of CJI in the matter of appointment of Judges to the justice delivery system. Incontrovertibly, the CJI being at the helm of the judicial system is the principal protector of judiciary showing his keen insight into the practical problems of the judicial system, from beginning to end. In fact, the CJI has a pride of place in the Constitution.

93. In the backdrop of the above important role given to the judiciary and the obligation of the CJI as required under Arts. 124(2) and 217(l) of the Constitution, we shall examine the various questions which are posed for deep consideration.

94. The Indian judicial system being pyramidic in character is an integrated one in contradistinction to the dual system of USA and Australia. Our judicial system is vertically structured with this Court (Supreme Court) at the apex with the intervening layers consisting of subordinate judiciary at the grassroots level, district Judge at the middle level and the High Court at the State level.

95. We shall presently give a brief note of the appointment of Judges in the pre and post Constitution era with reference to the concerned provisions of the then existing Act and the present Constitution which throw considerable light on the discussion that we propose to undertake.

Appointment of Judges under the Government of India Act, 1919

96. There is a long evolution of the method of appointment of Judges of the superior judiciary in India. The process of Indianisation of judiciary was in the offing and ground norms were laid for the same in the Government of India Act of 1919. S. 101 of that Act conferred the authority to appoint a Judge of a High Court on His Majesty. Sub-sec. (3) of S. 10 1 set out the qualifications of a person for being appointed as a Judge of the High Court. Some of the qualification clauses of that Section opened up a possibility of Indians being appointed as High Court Judges with a concept of quota reservation.

Appointment of Judges under the Government of India Act, 1935

97. Under the Government of India Act, 1935, sub-sec. (2) of S. 200 which dealt with appointment of Federal Court Judges provided that “every Judge of the Federal Court shall be appointed by His Majesty by warrant under the Royal Sign Manual and shall hold office until he attains the age of sixty-five years”. The High Court Judges were also appointed in the same manner under sub-sec. (2) of S. 220 of the Act of 1935 but the tenure of office was up to the age of sixty years.

98. It was only after considerable discussion and debate in the Constituent Assembly and in the various Committees which were appointed in connection with the appointment of Judges and other allied matters, the present provisions viz. Arts. 124 (regarding appointment of Judges to Supreme Court) and 217 (regarding appointment of Judges to the High Courts) were incorporated in the Constitution. (It may be pointed out in this context that one of the suggestions made in the course of discussion in the Constituent Assembly was that the appointment of Judges of the Supreme Court should be with the concurrence of the Chief Justice of India, but this suggestion was not accepted.)

Appointment of Judges of the Supreme Court and High Courts under the Constitution of India

99. The fasciculous of Articles 124 to 147 in Chapter IV of Part V under the caption “The Union Judiciary” deals with the establishment and constitution of Supreme Court, the appointment of Judges and their powers, rights, jurisdiction and service conditions etc. etc., whilst Articles 214 to 231 in Chapter V of Part VI under the caption “The High Courts in the State” deal with the constitution of High Courts, the appointment and conditions of the office of a Judge of a High Court, their powers, rights, jurisdiction, service conditions including the transfer from one High Court to another etc. etc. The power to appoint a Judge to the Supreme Court or to a High Court vests in the President under Articles 124(2) and 217(l) respectively. It is obligatory upon the President before making an appointment of a Judge to the Supreme Court other than the Chief Justice of India to consult the CJI. If the President, in his discretion, deems it necessary for that purpose to have “consultation with such of the Judges of the Supreme Court and of the High Courts in the States” he can do so as contemplated under Article 124(2). For appointment of CJI, there is no specific provision. Similarly, it is obligatory upon the President before making an appointment of a Judge to a High Court to consult the CJI, the Government of the State and the Chief Justice of the High Court (in the case of appointment of Judge other than the Chief Justice) to which the selectee is to be appointed as required under Article 217(l).

100. The Constitution except stating that “there shall be a Supreme Court of India consisting of a Chief Justice…….”(vide Article 124(l)) and that “there shall be a High Court for each State (Vide Article 124) and that “every High Court shall consist of a Chief Justice does not prescribe a separate and distinct procedure for appointment of Chief Justice. As the word ‘Judge’ includes the Chief Justice also, the procedure prescribed for appointment of a Judge to the Supreme Court or to a High Court has to be followed in compliance with Articles 124(2) and 217(l) as the case may be,

101. Till date, the proposal and procedure followed in the appointment of Chief Justices and Judges to the Supreme Court and High Courts during the pre-S.P. Gupta’ period is more or less the same. No Ostensible material change is brought to our notice in the present existing procedure. Two memoranda dated nil have been furnished along with the written submissions made on behalf of Union of India, showing the procedure prior to the decision in Gupta’s case (supra). We shall now reproduce those two memoranda as well as the present procedure as found in the 121st Report of the Law Commission so as to have a clear idea of the procedure hitherto followed in the selection as well as appointment of Judges to the superior judiciary. Those two memoranda are said to have been issued earlier to the decision in Gupta’s case (supra).

102. This first memorandum dealing with the appointment of a permanent Chief Justice of India and Judges of the Supreme Court under Article 124(12) prescribes the following procedure:

“Whenever a permanent vacancy is expected to arise in the office of the Chief Justice, the necessary action will be taken by the Minister of Law and Justice through the private and personal channel. Whenever a permanent vacancy is expected to arise in the office of a Judge of the Supreme Court, the Chief Justice of India will intimate the fact to the Minister of Law and Justice and at the same time forward his recommendations as to the manner in which the vacancy should be filled. Unless the Minister of Law and Justice considers that the recommendation of the Chief Justice of India should be accepted straightway, he may consult such Judges of the Supreme Court and High Courts as he may deem necessary and, if after such consultation, the Minister of Law and Justice considers it desirable to bring any point to the notice of the Chief Justice of India or to suggest the consideration of the claims of any other person not recommended by the Chief Justice of India, he may by personal correspondence convey his suggestions to the Chief Justice of India. On obtaining the views of the Chief Justice of India finally, the Minister of Law and Justice will, with the concurrence of the Prime Minister, advise the President of the selection,”

103. In the case of appointment of Chief Justice and Judges of High Court under Article 217(l), the following procedure is made mention of in the second memorandum:

“When a permanent vacancy is expected to arise in the office of a Judge, the Chief Justice will as early as possible communicate to the Chief Minister of the State his views as to the person to be selected for permanent appointment. The Chief Minister will, in consultation with the Governor, forward his recommendation to the Minister of Law and Justice in the Central Government. Full details of the persons recommended particularly those mentioned in the Annexure I, should invariably be sent. When the Chief Minister or the Governor proposes to recommend the name of a person different to the one put forward by the Chief Justice, the Chief Justice should be informed accordingly and his comments invited. These comments should invariably be forwarded along with the communication from the Chief Minister to the Minister of Law and Justice in the Central Government. The Minister of Law and Justice in consultation with the Chief Justice of India and the Prime Minister, will then advise the President as to the selection. The same procedure will be observed with regard to the appointment of Chief Justices, except that the recommendation for appointment of Chief Justice will originate from the Chief Minister.”

104. We would like to extract the present existing procedure adopted as found in the One Hundred and Twenty First Report of the Law Commission of India (July 1987) page 10:

“The present situation is that ordinarily a formal proposal for filling up of a vacancy in the Supreme Court. is initiated by the Chief Justice of India by recommending the name of the person considered suitable by him to the Minister of Law and Justice. If the Minister accepts the recommendation, the proposal is forwarded to the Prime Minister of India who, if he approves, advises the President to Issue a formal warrant of appointment under his own signature. Similarly, in the case of a Judge of the High Court, the formal proposal emanates from the Chief Justice of the High Court and if that is accepted by the Chief Minister of the State, the Governor of the State, the Chief Justice of India and the Minister of Law and Justice, Government of India, the same is processed and submitted to the Prime Minister of India, who, if he approves, the recommendation, advises the President to issue a formal warrant of appointment.”

105. Ever since the advent of our Constitution, the President in appointing a Judge “by warrant under his hand and seal” acts on the aid and advice of the Council of Ministers under Article 74 in the case of Supreme Court and High Courts. In the matter of appointment of a High Court Judge, the opinion of the Council of Ministers of the State on whose aid and advice the Governor expresses his opinion is also taken into consideration in addition to the aid and advice of the Council of Ministers of the Central Government under Article 74.

106. A mounting dissatisfaction has been and is voiced against this existing method and strategy of selection through the process of which selectees have to man the superior judiciary. It is stated in the One Hundred Twenty-first Report of the Law Commission of India that “This dissatisfaction stems from what is the idolised view of the members of the superior judiciary and what is available. In order to appreciate the fairness and reasonableness of this strident criticism, it is first necessary to determine what is expected of the superior judiciary individually and institutionally.”

107. While the procedure for appointment of Chief Justices and Judges stood thus, a number of writ petitions were filed before this Court, one of which was by S. P. Gupta, a Senior Advocate practicsing in the Allahabad High Court. ‘All the writ petitions had the constitutional validity of a, circular/letter dated March 18, 1981, addressed, by the then Law Minister of Government of India to the Governor of Punjab and Chief, Minister of States. In addition to the above prayer, in a writ petition filed by Mr. V.M. Tarkunde, a senior advocate, practicing in this Court. the procedure and practice followed by the Central government in appointing Judges of various High Courts were assailed. A seven Judges Bench presided over by P. N. Bhagwati, J. (as the learned Chief Justice then was) heard, all the writ. petitions together. All the seven Judges delivered separate judgments. Bhagwati, J. who gave the leading judgment has Spelt out his opinion as under;

“It would, therefore be open to the Central Government to Override the opinion given by the constitutional functionaries required to be consulted and to arrive at its own decision in regard to the appointment of a Judge in the High Court or the Supreme Court, so long as such decision is based on relevant consideration and is not otherwise mala fide. Even if the opinion given by all the constitutional functionaries consulted by it is identical, the Central Government is not bound to act in accordance with such opinion, though being a unanimous opinion of all the three constitutional functionaries, it would have great weight and if an appointment is made by the Central Government in defiance of such unanimous opinion, it may prima facie be vulnerable to attack on the ground that it is mala fide or based on irrelevant grounds. The same position would obtain if an appointment is made by the Central Government contrary to the unanimous opinion of Chief Justice of the High Court and the CJI …….”

108. The above views expressed in Gupta’s case (supra) which affixed the judicial stamp of approval on the present existing mode of selection and appointment of Judges to the superior judiciary at the exclusive discretion of the Central Government, even disregarding the opinions of the constitutional functionaries including the CJI and the long felt need for a change in the present mode and method of appointments appear to be the immediate provocation for filing these present writ petitions.

109. The grievance articulated by the petitioners ‘is that under the present scheme the executive which is given the ‘right of primacy’ ‘and the ‘freedom of choice’ in the matter of selection and appointment of Judges to the superior judiciary, assumes the role of “Lord of Lords” and indeed acts as an “Overlord” with the result that the right of making appointments even in definance of the unanimous opinion of all the three constitutional functionaries including the CJI; that during the entire process, wholly concerning the judicial system, the CJI is reduced to a passive by – stander and mute spectator instead of being an active participant in the process except being a consultee at an early initial stage and that the superior judiciary headed by the CJI who is the final arbiter of all constitutional questions is regretably placed in that process under the ‘despotism of an oligarchy’. According to them, the cherished principle of independence of the judiciary is being strangulated by this kind of recognition of the executive’s superiority by keeping it on a high pedestal in preference to the judiciary and reducing the judiciary to an ignoble position. This ignominy, it is said, makes the judicial system suffer convulsions and struggle for its normal breathing in its own field, in the matter of appointment of Judges to man the judiciary itself.

110. Justifying the initiation of these proceedings, it has been said that as the Judges particularly the Chief Justice who are/ is sidelined in this jurisdictional struggle could not even temporarily put aside their judicial robes and enter into political debate on this burning and sensitive problem, the petitioners who are more interested in and wedded to the principle of independence of judiciary have approached this Court entertaining a genuine apprehension that if the primacy is not accorded to the opinion of the CJI in the matter of appointment of Judges, the majesty of the entire judicial system would be completely devalued and eroded.

111. Mr. Parasaran appearing on behalf of UOI countervails the above arguments Contending that the emotional submissions and verbal gymnastics are nothing more than mere verbiage. According to him, there is no grey area in the present existing procedure of appointment of Judges to be annulled or altered. It is further contended that the arguments, advanced on behalf of the petitioners are barren of force, muchless expose hollowness because the present existing procedure which has stood and is standing the, test of the day, is the only acceptable procedure which is strictly in conformity with the constitutional mandate. He states that there is absolutely no riddle wrapped in a mystery inside an enigma in the present mode and strategy of selection and appointment of Judges as magnified and projected by the learned counsel for the petitioners regarding any change or modification. He further continues to state that any change or modification in the system will offend the Constitution. But at the same time, he has said that he is second to none in upholding the dignity and independence of the judiciary.

112. Before undertaking a painstaking voyage on an obsessive mission to find out as to whether there are any defects in the present mode and strategy to the selection and appointment of Judges for the higher judiciary contrary to the constitutional scheme; if so what those defects are and what would be the remedy that would cure that disease, we would even at the threshold make it clear that it is not for us to enter and investigate or to make a research, ‘what the law was, what the law is and what the law ought to be’, but only to interpret the relevant constitutional provisions as they stand in their real spirit and true objectives without subjecting them to any hard construction or drawing any strained inferences.

113. To put it differently, we are constrained to undertake this process of disposing these hotly debatable issues with an avowed object of re-designing and re-juvenating the structure and the system of judiciary, if so warranted, so that the stability of the system for ages to come may have firm footrest and lumbar support because if the system is weak-kneed or crippled or becomes impotent or sterile, it will lose its strength and authority. Resultantly, the other constitutional functionaries will try to prevail upon the justice delivery system as the saying goes, “When the eagle of empire falls, each sparrow takes a feather”, The Judiciary is neither sub-servient to nor a ‘cheer-leader’ of the executive or any other authority, however, powerful it may be.

114. It is worthwhile to recall the speech of Elimira in 1907 as a prelude for the discussion to be made in the ensuing part of this judgment. He stated, “We are under the Constitution, but the Constitution is what the Judges say it is, and the judiciary is the safe- of our liberty and of our property under the Constitution.”

115. Marshal, CJ with reference to judicial activism in interpreting has observed thus:

“We must never forget that it is a constitution which we are expounding, a constitution intended to endure for ages, and consequently to be adapted to the various crises of human affairs. Nor did they image that it was to be so strictly interpreted that amendments and radical revisions would be constantly required to keep Government functioning smoothly.”

116. Keeping the above view, let us examine the relevant constitutional provisions in their true spirit and without stretching them too far.

117. Clauses (1) and (2) with its first proviso of Article 124 reads thus:

“124. Establishment and constitution of Supreme Court- (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven[1] other Judges.

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the State as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:

Provided that in the case of appointment of’ A Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”

118. Article 217(l) ‘With regard to the appointment of Judges to the High Courts reads thus:

“Appointment and conditions of the office of a Judge of a High Court-(I) Every Judge of a High Court shall be appointed by the President by warrant under his hand and sea] after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and Judge other than the Chief Justice, the Chief Justice of the High Court, and ………..”

119. Under the above provisions, it is the President who is vested with the authority of appointment by warrant and under his hand and seal “after consultation” with specified constitutional functionaries. The consultees whom the President may in his discretion consult in case of appointment of a Judge of the Supreme Court are.,

(1) Such of the Judges of the Supreme Court and

(2) Such of the Judges of the High Courts in the States

as the President may deem necessary for this purpose. But the proviso to clause (2) of Article 124 makes it obligatory on the part of the President to consult the Chief Justice of India in case of an appointment of a Judge other than the Chief Justice. Thus, Article 124(2) envisages two kinds of consultation, one being discretionary on the part of the President and the other being mandatory, In case of appointment of a Judge of the High court other than the Chief Justice of the constitutional functionaries are, (1) Chief Justice of India

(2) The Governor of the State

(3) Chief Justice of the High Court concerned.

120. It is clear that under Article 217(l), the process of ‘consultation’ by the President is mandatory and this clause does not speak of any discretionary ‘consultation’ with any other authority as in the case of appointment of a Judge of the Supreme Court as envisaged in clause (2) of Article 124. The word ,consultation’ is powerful and eloquent with meaning, loaded with undefined intonation and it answers all the questions and all the various tests including the test of primacy to the opinion of the CJI. This test poses many, tough questions, one of them being, what is the meaning of the expression consultation’ in the context in which it is used under the Constitution. As in the case of appointment of a Judge of the Supreme Court and the High Court, there are some more constitutional provisions in which the expression ‘consultation’ is used. Those provisions are:

121. Clause (5) of Article 148 states that subject to the provisions of this Constitution and of any law made by Parliament, the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor-General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor General.

122. In clause (1) of Article 222, it is stated that the President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.

123. Clause (3) of Article 320 states that the Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted on matters enumerated under sub-clauses (a) to (e) of that clause.

124. Clause (9) of Article 338 reads, “The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Castes and Scheduled Tribes”.

125. The consultation in all the above Articles is mandatory in character. Vide Manbodhan Lal Srivastava v. State of U. P.. (1958) SCR 533.

126. However, the question of consultation by the President as in the case of appointment of a Judge is not constitutionally warranted in respect of the appointments of some other constitutional appointees by the President, namely, (1) the Chairman and Members of Finance Commission under Art. 280(l); (2) the Chairman and Members of Public Service Commission in the case of Union Commission or a Joint Commission under Article 316(l); (3) the Chief Election Commissioner and other Election Commissioners under Article 324(2); and (4) the Chairman and other members of the Commission representing the different languages specified in the Eighth Schedule under Article 344(l); (5) the Special Officer for linguistic minorities under Article 350-B.

127. The word ‘consultation’ is a noun whilst the word ‘consult’ is a verb and ‘consultative’ is ‘an adjective. The meaning of the expression ‘consultation’ is given in Shorter Oxford English Dictionary as:

“Consultation:1. The action of consulting or taking counsel together; deliberation, conference; 2. a conference in which the parties, e.g. lawyers or medical practitioners consult and deliberate. 3. The action of consulting ……..

128. In Webster’s Encyclopaedic Unabridged Dictionary of the English Language, the meaning of consultation is given thus:

“Consultation:1. The act of consulting; conference. 2. a meeting for deliberation, discussion, or decision ……”

129. Black’s Law Dictionary defines the expression as under:

“Consultation:Act of consulting or conferring; e.g. patient with doctor; client with lawyer. Deliberation of persons on some subject. A conference between the counsel engaged in a case, to discuss its questions or arrange the method of conduct in it.”

130. Stroud’s Law Lexicon gives the following definition:

“Consultation:(New Towns Act, 196 (9 and 1) Geo. 6, c. 68), S. l(l), ‘consultation with any local authorities.’ ‘Consultation means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and on the other hand, a sufficient opportunity must be given to the local authority to tender advice” per Blucknil, L.J. in Rollo v. Minister of Town and Country Planning, (1948) 1 All ER 13 (CA); see also Fletcher v. Minister of Town and Country Planning, (1947) 2 All ER 496.

131. Word and Phrases Permanent Edition gives the meaning of ‘consult’ thus:

“Consult means to seek opinion or advice of another, to take counsel to deliberate together; to confer; to deliberate on; to discuss; to take counsel to bring about; devise; contrive; to ask advice of, to seek the information of; to apply to for information or instruction; to refer to. Teplisky v. City of New York 133 NYS 2d 260, 261.

132. In common parlance, whenever the expression ‘consultation’ is used in connection with lawyers, or with the physician or with the engineer etc., it would mean as seeking opinion or advice or aid or information or instruction. In Corpus Juris Secundum Vol. 16A at page 1243, the meaning of the word ‘consultation’ is given thus:

“Consultation:The word ‘consultation’ is defined generally as meaning the act of consulting; deliberation with a view to decision; and judicially as meaning the deliberation of two or more persons on some matter; also a council or conference to consider a special case. In particular connections the word has been defined as meaning a conference between the counsel engaged in a case, to discuss its question or to arrange the method of conducting it, the accepting of the services of a physician, advising him of one’s symptoms, and receiving aid from him.”

133. In Law Lexicon by P. Ramanatha Aiyar, it is stated as follows:

“Consultations always require two persons at least; deliberations may be carried on either with a man’s self or with numbers; an individual may consult with one or many; assemblies commonly deliberate; advice and information are given and received in consultations; doubts, difficulties, and objections are stated and removed in deliberations. Those who have to co-operate must frequently consult together ; those who have serious measures to decide upon must coolly deliberate.”

134. The expression used in clause (2) of Article 124 is ‘after consultation’ whereas in the proviso to that clause the expression ‘shall always be consulted’ is used. In Article 217(l), the expression used is ‘after consultation’.

135. This word ‘consultation’ when used in legal sense has come up for judicial scrutiny, before this Court as well as High Courts and foreign Courts on many occasions. We shall now recall a few of the decisions, interpreting that word.

136. The word ‘consult’ was subject of judicial scrutiny in Fletcher v. Minister of Town Planning (1947) 2 All ER,496,in which the learned Judge observed thus:

“The word ‘consultation’ is one that ‘is in general use and that is well understood. No useful purpose would, in my view, be served by formulating words of definition. Nor would it be appropriate to seek to lay down the manner in which the consultation must take place. The Act does not prescribe any particular form of consultation. If a complaint is made of failure to consult, it will be for the Court to examine the facts and circumstances of the particular case and to decide whether consultation was, in fact, held. Consultations may often be a somewhat continuous process and the happenings at one meeting may form the background of a later one.”

In Madras District Municipalities Act, 1920, Section 3 read that “for the purpose of election of Councillors to a Municipal Council, the Local Government ‘after consulting the Municipal Council’ may by notification decide divide the Municipality into wards. K. Subha Rao, J. (as the learned Chief Justice of this court then was) who then adorned the Bench of the Madras Nigh Court interpreted the word ‘consult’ in R. Pushpam v. State of Madras, AIR 1953 Madras 392 as under:

“The word ‘consult’ implied a Conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution. Such a consultation may take place at a conference table or through correspondence. The form is not material but the substance is important. It is necessary that the consultation shall ‘be directed to the essential points and to the core of the subject involved in the discussions. The consultation must enable the consultor to consider the pros and cons of the question before coming to a decision. A person consults another to be elucicated on the subject-matter of the consultation. A consultation may be between an uninformed person and an expert or between two experts. A patient consults a doctor; a client consults his lawyer; two lawyers or two doctors may hold consultations between themselves. In either case the final decision is with the consultor, but he will not generally ignore the advice except for good reasons. So too in the case of a public authority. Many instances may be found in statutes when an authority entrusted with a duty is directed to perform the same in consultation with another authority which is qualified to give advice in respect of that duty. It is true that the final order is made and the ultimate responsibility rests with the former authority. But it will not, and cannot be, a performance of duty if no consultation is made, and even if made, is only in formal compliance with the provisions. In either case the order is not made in compliance with the provisions of the Act.

137. A five-Judges Bench of this Court in Chandramouleshwar Prasad v. Patna High Court, (1970) 2 SCR 666,, while interpreting the word ‘consultation’ as appearing in Article 233 of the Constitution has observed as follows:

“Consultation with the High Court under Art. 233 is not an empty formality. So far as promotion of officers to the cadre of district Judges is concerned the High Court is best fitted to adjudge the claims and merits of persons to be considered for promotion. The Governor cannot discharge his function under Art. 233 if he makes an appointment of a person without ascertaining the High Court’s views in regard thereto. It was strenuously contended on behalf of the State of Bihar that the materials before the Court amply demonstrate that there had been consultation with the High Court before the issue of the notification of October 17, 1968. It was said that the High Court had given the Government its views in the matter; the Government was posted with all the facts and there was consultation sufficient for the purpose of Art. 233. We cannot accept this. Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposer the direction to give effect to the counter proposal without anything more, cannot be said to have been issued after consultation.”

138. In Shamsher Singh v. State of Punjab (1975) 1 SCR 814 , Krishna Iyer, J. speaking for himself and on behalf of Bhagwati, J. has articulated the evaluation of the opinion of the Chief Justice of India in the matter concerning judiciary and expressed his views thus:

“In all conceivable cases consultation with that highest dignitary of Indian justice will and should be accepted by the Government of India and the Court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice, the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. In this view, it is immaterial whether the President or the Prime Minister or the Minister for Justice formally decides the issue.”

139. Thereafter in Sankal Chand (supra), Krishna Iyer J. speaking for himself and Fazal Ali, J. in his concurring but separate judgment has ruled thus:

“It must also be borne in mind that if the Government departs from the opinion of the Chief Justice of India it has to justify its action by giving cogent and convincing reasons for the same and, if challenged, to prove to the satisfaction of the Court that a case was made out for not accepting the advice of the Chief Justice of India. It seems to us that the word ‘consultation’ has been used in Article 222 as a matter of constitutional courtesy in view of the fact that two very high dignitaries are concerned in the matter, namely, the President and the Chief Justice of India. Of Course, the Chief Justice has no power of veto, as Dr. Ambedkar explained in the Constituent Assembly.”

140. In the same case, Krishna Iyer, J. after giving lexicon meaning of ‘consultation’ has stated:

“We consult a physician or a lawyer, an engineer or an architect, and thereby we mean not casual but serious, deliberate seeking of informed advice, competent guidance and considered opinion. Necessarily, all the materials in the possession of one who consults must be unreservedly placed before the consultee. Further, a reasonable opportunity for getting information, taking other steps and getting prepared for tendering effective and meaningful advice must be ‘given to him. The consultant, in turn, must take the matter seriously since the subject is of grave importance. The parties affected are high-level functionaries and the impact of erroneous Judgment can be calamitous. Therefore, it follows that the President must communicate to the Chief Justice all the materials he has and the course he proposes. The Chief Justice, in turn, must collect necessary information through responsible channels or directly, acquaint himself with the requisite data, deliberate on the information he possesses and proceed in the interests of the administration of justice to give the President such counsel of action as he thinks will further the public interest, especially the cause of the justice system. However, consultation is different from consentaneity. They may discuss but may disagree; they may confer but may not concur. And in case, the consent of the Judge involved is not a factor specifically within the range of Article 222.”.

141. Chandrachud, J. (as the learned Chief Justice then was) in his separate judgment gave a homely analogy and stated that “it may not be a happy analogy, but it is commonsense that he who wants to ‘consult’ a doctor cannot keep facts up his sleeve. He does so at his peril for he can receive no true advice unless he discloses facts necessary for diagnosis of his malady.” Thereafter, making reference to Pushpam’s case (supra), the learned Judge stated, “In order that the two minds may be able to confer and produce a mutual impact it is essential that each must have for its consideration full and identical facts, which can at once constitute both the source and foundation of the final decision.

142. Bhagwati, J. in Sankal Chand (supra) has wholly endorsed what Krishna Iyer J. has Observed about the nature and intent of the expression, ‘consultation with the Chief Justice of India’ occurring in clause (1) of Article 222.

143. Bhagwati, J. (as the learned Chief Justice then was) in Gupta’s case (supra) has articulated that Articles 124 (2) and 217 (1) speak of only constitutional functionaries having a consultative role and held thus:

“……..It is not an unfettered power in the sense that the Central Government cannot act arbitrarily without consulting the constitutional functionaries specified in the two Articles but it can act only after consulting’ them and the consultation must be full and effective consultation.

The question immediately arises what constitutes ‘consultation’ within the meaning of clause (2) of Article 12 and clause (1) of Article 217. ‘Fortunately, this question is no longer res integra and it stands concluded by the decision of this Court in Sankalchand Seth’s case (supra) related to the Scope and meaning of ‘consultation’ in clause (1) of Article 222 ……………………………………….. Each of the constitutional functionaries required to be consulted under these two articles must have for his consideration full and identical facts bearing upon appointment or non-appointment of the person concerned as a Judge and the opinion of each of them taken on identical material must be considered by the Central Government before it takes a decision whether or not to appoint the person concerned as a Judge. But while giving the fullest meaning and effect to ‘consultation’, it must be borne in mind that it is only consultation which is provided by Government and consultation cannot be equated with concurrence ……………………………………………………………………………

It is, therefore, clear that where there is difference of opinion amongst the constitutional functionaries in regard to appointment of a Judge in a High Court, the opinion of none of the constitutional functionaries is entitled to primacy but after considering the opinion of each of the constitutional functionaries and giving it due weight, the Central Government is entitled to come to its own decision as to which opinion it should accept in deciding whether or not to appoint the particular person as a Judge. So also where a Judge of the Supreme Court is to be appointed, the Chief Justice of India is required to be consulted, but again it is not concurrence but only consultation and the Central Government is not bound to act in accordance with the opinion of the Chief Justice of India though it is entitled to great weight as the opinion of the head of the Indian Judiciary ……………………………….

**********

It is clear from the language of clause (1) of Article 217 that the appointment of a Judge of a High Court can be made by the President only after consultation with the Chief Justice of the High Court, the Governor of the State and the Chief Justice of India and, according to the interpretation placed by us, consultation within the meaning of this Article means full and effective consultations with each of the three constitutional functionaries after placing all relevant material before them.

144. Fazal Ali, J. in Gupta’s case (supra) has agreed with the view expressed by Bhagwati, Desai and Venkataramiah, JJ. as regards the exposition of the concomitants of consultative process.

145. Desai, J. has accepted the view expressed in Chandramouleshwar Prasad v. Patna High Court (supra) as being a good law even for Article 217(l).

146. Pathak, J. (as the learned Chief Justice then was) has expressed his view stating:

“At the same time I am unable to accept the contention that as the Constitution stands today, the President is obliged in all cases to agree with a recommendation in which the Chief Justice of the High Court and the Chief Justice of India have concurred. During the Constituent Assembly Debates a proposal was made by a member that the appointment of Judges should require the concurrence of the Chief Justice of India (although that suggestion was made in connection with the appointment of Judges of the Supreme Court), but that proposal was not accepted. The Law Commission of India in its Fourteenth Report, Vol. 1 p. 7 surveyed the machinery for appointing a Judge of a High Court and considered it desirable that the provision in clause (1) of Article 217 should be altered to provide for ‘not merely consultation with the Chief Justice of India but his concurrence in the proposed appointment.’ That recommendation has not borne fruit and we are concerned with the position which prevailed then and continues today.”

147. In Subhash Sharma (supra), Ranganath Mishra, CJ speaking for the three-Judges Bench explained the significance of the word ‘consultation with the Chief Justice of India’ as appearing in Articles 124(21) and 217 (1) as follows:

“The word ‘consultation’ is used in the constitutional provision in recognition of the status of the high constitutional dignitary who formally expresses the result of the institutional process leading to the appointment of judges. To limit that expression to its literal limitations, shorn of its constitutional background and purpose, is to borrow Justice Frankfurter’s phrase, “to stick in the bark of words …………………………………………………………………..

Consultation’ should have sinews to achieve the constitutional purpose and should not be rendered sterile by a literal interpretation.”

148. Mr. F. S. Nariman, the learned senior counsel has submitted that the meaning of the expression ‘after consultation with’ must be determined in the constitutional context and conditions only by the true nature and object of such consultation. In support of this submission, he places reliance on Port Louis Corporation v. Attorney General (1965) AC 1111 at 1112 PC wherein Lord Morris had pointed out that the nature and object of consultation must be related to circumstances which call for it.

149. He continues to state that when no consultation is provided for with regard to any other constitutional office i.e. other than the judicial office, the consultation which is required in the Constitution with reference only to judicial office (as contrasted with other high ranking constitutional offices) shows that it does not bear the ordinary literal meaning but it means something more than merely seeking an advice.

150. According to him, the word ‘consultation’ especially in the context of the authorities constitutionally required to be, consulted cannot be dissociated from the advice sought, and given, as a result of such consultation and that the requirement of prior consultation in respect of judicial offices in the Constitution was truly intended to be a reservation or limitation on the power to appoint and that it is not merely a condition precedent to the exercise of the power to appoint. It is further submitted that the link between the advice given as a result of the consultation and the ultimate appointment of the person about whom there is consultation for judicial office is inextricable making’ the entire process of appointment of Judges under the Constitution as one ‘integrated process’. In this connection, our attention was drawn to the illustrative observation of Subba Rao, CJ speaking for the Constitution Bench in Chandra Mohan v. State of Uttar Pradesh (1967) 1 SCR 77 at 83 wherein he has said:

“To state it differently, if A is empowered to appoint B in consultation with C, he will not be exercising the power in the manner prescribed if he appoints B in consultation with C and D.”

151. This passage, according to Mr. Nariman indicates that the advice tendered by the constitutional authority required to be consulted, is of a binding character, though it does not specifically decide so.

152. He cites a decision of the Supreme Court of Tennessee in Colyar v. Wheeler et. al. mentioned in Words and Pharases Permanent Edition Volume 9, in which the following principles are laid down:

“1. Where by a post-nuptial settlement, a husband and wife conveyed to a trustee all of the wife’s property, reciting that the purpose of the deed was that the trustee might hold the legal title for the wife’s sole and separate use, with the absolute right of disposition as she might choose on consultation with said trustee, such conveyance created an active trust, and imposed on the trustee the duty of preserving the property for the wife’s separate use during coverture.

2. where a married woman’s property was conveyed to a trustee to hold the legal title for her sole and separate use, with the absolute right of disposition as she might choose, on consultation with said trustee, the provision requiring consultation was equivalent to a requirement of the consent of the trustee, to be evidenced by his signature to the conveyance and hence mortgages executed by the wife and her husband without trustee’s consent, and in which he did not join were void.

153. Mr. Ram Jethmalani, learned senior counsel expressed his grievance that the principles laid down in Chandra Mohan’s case (supra) were not appreciated by the learned Judges while dealing with Shamsher Singh’s case (supra) who, in his submission, have ignored the principle of harmonious construction which was articulated in K. M. Nanavati v. State of Bombay (1961) 1 SCR 497. According to him, the judgment in Gupta’s case (supra) may be regarded as per incuriam. He articulates that the expression ‘consultation’ is itself flexible and in a certain context capable of bearing the meaning of ‘consent’ or ‘concurrence’.

154. According to Mr. Kapil Sibal, the learned senior counsel, there is no mention of Government in Art. 124(2) but this Article refers only to the President which means the President acting with the aid and advice of the Government, namely, the Council of Ministers. He brought to our notice certain observations of Bhagwati, J. in Gupta’s case (supra), firstly, “It is obvious on a plain reading of clause (2) of Article 124 that it is the President which in effect and substance means the Central Government which is empowered by the Constitution to appoint Judges of the Supreme Court”; secondly the power of appointment resides solely and exclusively in the Central Government” and thirdly, “the opinion of the Governor of the State which means State Government ……….”.

155. By the above observation in Gupta’s case (supra), according to him, this Court has erred in reading, into’ the words, ‘The President’ and the Governor of the State’ as meaning ‘the Central Government’ and ‘the State Government’ respectively” which is neither the true intent of the Constitution nor warranted in the field of appointment of Judges. He regrets that where there are guides to nuts and bolts it is highly distressing and deplorable that there are no canalised guidelines as regards the method of selection and appointment of Judges to the higher judiciary.

156. Mr. K. Parasaran, the learned senior counsel appearing on behalf of the respondents strenuously and fervently refutes the above arguments stating that when the Constitution points out three functionaries including the CJI who have to be consulted by the President, there is no question of giving primacy to the opinion of the Chief Justice of India over and above the opinion of the other consultees with regard to the same subject matter under the same context. He states that there could be no reason to give primacy to the opinion of the CJI expressed during the consultation except on the principle of so called hierarchy. He adds that the very scheme of the Constitution not providing for administrative control of the High Courts by the Supreme Court, itself militates against giving primacy to the opinion of the CJI in the process of ‘consultation’ over the Chief Justice of the High Court who is also one of the constitutional functionaries to be consulted by the President as adumbrated under Article 217 (1). Similarly, the Executive also has an important role to play in the process of consultation since the Executive may have knowledge as to the qualities and affiliations and personal integrity of the selectee other than his/her legal ability and professional attainments. In support of his submission, he referred to the debates of the Constituent Assembly and to certain proposed amendments to the draft Articles which, according to him, would show that ‘consultation’ does not mean ‘consent’ or ‘concurrence’. For understanding and appreciating his arguments, we would like to reproduce the proposed amendments.

157. Shri B. Pocker Sahib moved the following amendment to Article 103:

“(2) Every Judge of the Supreme Court other than the Chief Justice of India shall be appointed by the President by warrant under his hand and seal after consultation with the concurrence of the Chief Justice of India; and the Chief Justice of India shall be appointed by the President by a warrant under his hand and seal after consultation with the Judges of the Supreme Court and the Chief Justices of the High Courts in the States and every Judge of the Supreme Court shall hold office until he attains the age of sixty-eight years.”

158. Similarly, Mr. Mahboob All Baig Sahib proposed the following amendment:

“That In the first proviso to clause (2) of Article 103, for the words ‘the Chief Justice of India shall always be consulted’, the words ‘it shall be made with the concurrence of the Chief Justice of India be substituted.”

159. To the draft Article 193 with respect to the appointment of High Court Judges, Mr. B. Pocker Sahib suggested the following amendments:

“(1) Every Judge of the High Court shall be appointed by the President by a warrant under his hand and seal on the recommendation of the Chief Justice of the High Court concerned after consultation with the Governor of the State concerned and with the concurrence of the Chief Justice of India and shall hold office until he attains the age of sixty-three years.”

160. All the above amendments were rejected after a long deliberation in the Constituent Assembly. Mr. Parasaran urges that when those amendments expressly providing for the concurrence of the CJI were rejected and the present Articles 124 and 217 have been enacted placing all the constitutional functionaries including the CJI as only consultees, no interpretation can be justifiably given that consultation with the CJ1 must be given primacy. According to him, if such a construction is given to the word ‘consultation’, we Would be re-writing the Articles. Then he cites an observation from the Special Courts Bill (1979) 2 SCR 476 wherein the word ‘consultation’ was not construed as ‘concurrence’ but only as ‘consultation’ as ruled in Sankal Chand (supra). That observation reads thus:

“……………the process of consultation has its own limitation and they are quite well known. The obligation to consult may not necessarily act as a check on the executive …………………”

161. Referring to the new clause (4) to Article 22 which is a proposed substitution by the Constitution (Forty-fourth) Amendment Act, 1978 (for which date of enforcement is yet to be notified) in relation to the composition of the Advisory Board, reading “Advisory Board constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court”, it has been asserted by Mr. Parasaran that this newly proposed clause is introduced bearing in mind the inter pretation made by this Court in Sankal Chand and Special Courts Bill that consultation does not mean concurrence. He states that this is, therefore, a case of legislative ratification by the constituent power of the interpretation made by this Court as to the meaning of the word ‘consultation’. For principle of legislative ratification, he cites the following decisions, (1) Commr. of In come-tax v. Bansi Dhar and Sons (1985) 3 Suppl. SCR 850 at 868 ; (2) State of Tamil Nadu v. Nallai Cotton Mills (1990) 2 SCR 33 at 38-39; (3) F. S. Gandhi v. Commr. of Wealth Tax (1990) 2 SCR 886 at 897; and (4) Keshavji Ravji v. Commr. Of Income-tax (1990) 1 SCR 243 at 257.

162. After having made reference to the proposed amendments to Arts. 103 and 193 of the draft Constitution, Mr. Parasaran has recalled the reply of Dr. B. R. Ambedkar while winding up the debate on this topic concerning judiciary which reads thus:

“With regard to the question of concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to reply implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have and I think to allow the Chief Justice practically a veto upon the appointment of Judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I, therefore, think that is also a dangerous proposition.”

163. According to Mr. Parasaran, the entire debate on this topic in the Constituent Assembly, the rejection of the proposed amendments and the texture of the reply given by Dr. B. R. Ambedkar, in this context, are indicative of the fact that the framers of the Constitution designedly used the expression’ consultation’ instead of ‘concurrence’ or ‘consent’ which in turn shows that the opinion expressed by all the constitutional functionaries during the consultation by the President have equal weightage and none of them can, be placed superior to the other.

164. Mr. Parasaran finally makes a blistering attack against and fends off the petitioners’ counsel’s arguments stating that it is rather difficult to accept the construction of the word ‘consultation’ as asseverated on behalf of the petitioners and that if such a construction that the primacy should be given to the opinion of the Chief Justice expressed during the consultation is accepted, then Art. 124(2) Main Part will become redundant and otiose. He continues to state that had the intention of the framers of the Constitution been that the consultation with the CJI alone is sufficient, Article 124 would have been drafted without a proviso reading that every Judge of the Supreme Court shall be appointed by the President always in consultation with the Chief Justice of India and in his discretion may in consultation with such of the Judges of the Supreme Court and the High Courts in the States, if the President so deems necessary for the purpose. Reliance was placed on an observation of this Court in State of Uttar Pradesh v. Radhey Shyam Nigam (1989) 1 SCR 92 wherein Sibyasachi Mukharji, J. (as the learned Chief Justice then was) speaking for the Bench had said that it is a settled rule of the interpretation of statutes that pro-visions of an Act should be interpreted in such manner as not to render any of its provisions otiose unless there are compelling reasons for the Court to resort to that extreme contingency. He also cites Shri Balaganesan Metals v. M. N. Shanmugham Chetty (1987) 2 SCC 707 which decision has been relied upon in Radhey Shyam Nigam (supra). According to him, the purpose of enacting Art. 124(2) with a separate proviso is that in the process of consultation, the Chief Justice of India is always a consultant, who should be consulted and the other Judges whom the President may choose to consult are variable in that the President may consult different Judges on different occasions as the facts and circumstances of the case may suggest to him.

165. The learned Attorney General projects the view expressed by Pathak, J. (as the learned Chief Justice then was) in his minority judgment. According to him, the circulars as well as the actual practice of the working of the system clearly establishes that the Chief Justice’s views in the evaluation by the President should not be treated as one of parity but should be given greater weight. Finally, he emphasises that the views expressed in Gupta’s case (supra) are neither basically wrong nor intrinsically defective so as to bring about any radical changes and devise a new method.

166. The controversy that arises for scrutiny from the arguments addressed boils down with regard to the construction of the word ‘ consultation’.

167. Incontrovertibly, our Constitution is structured with a wealth of influential and choice words, measured phrases and expressions the real meaning and message of which are sometimes missed and on many occasions are hidden or unforeseen. However, the implication, relevance, signification, spirit and core of that word. as used in the Constitution are beyond the range of the interest of a layman. 168. In Chapter 4 of the Treaties titled, “The Loom of Language”, it is stated:

“Words are not passive agents meaning the same thing and carrying the same value at all times and in all contexts. They do not come in standard shapes and sizes like coins from the mint, nor do they go forth with a degree to all the world that they shall mean only so much, no more and no less. Through its own particular personality each word has a penumbra of meaning which no draftsman can entirely cut away. It refuses to be used as a mathematical symbol.”

169. In Town v. Eisner (1917) 245 US 418, Mr. Justice Holmes said that “a word is not a, crystal, transparent and unchanged; it is the skein of a living thought and may vary greatly in colour and content according to ten circumstances and the time in which it is used”.

170. Bhagwati, J. in Sankal Chand (supra) has pointed out that “The words used in a statute cannot be read in isolation; their colour and content are derived from their context and, therefore, every word in a statute must be examined in its context …….. The context is of the great importance in the interpretation of the words used in a statute.”

171. The Privy Council in Minister of Home Affairs v. Fisher(1979) 3 All ER 21 has held that a constitutional instrument is a document sui generis, to be interpreted according to principles suitable to its particular character and not necessarily according to the privileges, rules and presumption of /statutory interpretation.

172. The essence of the various decisions of this Court, High Courts as well as foreign Courts is that when we give a liberal construction to a word used in a statute particularly in the Constitution, we must first of all take note of the relevant and significant context in which that word is used and then interpret that word in that context with meaningful purpose. If the construction of the word is made only in a literal or lexical meaning, then there is every possibility of missing the real intent of the provisions.

173. When it is commonly said that words are the daily currency of the law, the value of which will never become obsolete the exchanged value of those currencies would depend upon the context of their usage. In fact, the word ‘consultation’ coined in the Constitution in one sense is well suited to the age though the said word has given room for different connotations, We are not deliberately contributing any hyperbolic and exaggerated meaning but only the Manifested meaning hat the currency of the word intends to convey.

174. In the above background of the constitutional scheme, we shall now examine the relevance and significance of consultation with the CJ1,in the context of appointment of Judges to the Supreme Court and High ‘Courts’ In that context, the derivative meaning of the word would depend not merely on. its ordinary lexical definition but greatly upon its contents according to the circumstances and the time in which the word or expression is used. Therefore, in order to ascertain its colour and content, one must examine the context in which that word is used.

175. The word ‘ consultation’ is used in the context of appointment of Judges to the Supreme Court under Art. 124(2) and to the High Courts under Art. 217(l). Though such a consultation is not constitutionally required in the case of appointment of other constitutional appointees, which we have indicated and itemised in the preceding part of this judgment. In Gupta’s case (supra), there is a consensus of opinion that consultation does not mean concurrence. In that case, Bhagwati, J. in his leading judgment has gone to the extent of holding the words ‘President’ and the ‘Governor’ meaning ‘the Central Government’ and ‘the State Government’ respectively and that “it would, therefore, be open to the Central Government to override the opinion given by the constitutional functionaries required to be consulted and to arrive at its own decision in regard to the appointment of a Judge of the High Court or the Supreme Court, so long as such decision is based on relevant considerations and is not otherwise mala fide.

176. This dictum laid down in Gupta’s case (supra) is that the power of appointment of Judges rests with the President who will act on the advice given by Council of Ministers after making consultation and upon due consideration of the opinions of the persons consulted. As to the nature of the consultation required, the Constitution does not lay down any specific mode, and in fact there is no guideline as pointed out by Mr. Kapil Sibal. But the view has been taken that since the consultation is a mandatory condition precedent, it should be effective which means that (1) the President must disclose all the facts which are necessary for due deliberation by the CJI; (2) the CJI must express his opinion with nothing less than the full consideration of the matter on which he is consulted upon the relevant facts; and (3) the quintessence of consultation being that the two parties must exchange their views and examine the merits of the proposal and counter proposal upon the identical materials. Vide Sankal Chand (supra).

177. In this context, a baffling question is as to what would be the effect of non-consultation. In State of U. P. v. Manbodhan Lal Srivastava, (1958) SCR 533 while construing the expression ‘shall be consulted’ occurring in Art. 320(3) held that “A” article 320(3)(c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation should not afford him a cause of action in a Court of law, or entitle him to relief under the special powers of a High Court under Art. 226 of the Constitution. See also Ram Gopal v. State of Madhya Pradesh (1970) 1 SCR 472 and ,A. N. D.’ Silva v. Union of India, (1962) 1 Suppl. SCR 968.

178. The question that follows is whether the same view may be taken if the President appoints a puisne Judge of the Supreme Court without consulting the CJI at all. If the view taken in Srivastava’s case (supra) as regards the non-observance of Art. 323, is imported in the first proviso to Art. 124(2) or in Art. 217(l), the answer would be that such appointment is nevertheless valid notwithstanding the violation of the first proviso. A different conclusion has, however, been taken in Sankal Chand (supra) presumably being prompted by the need for judicial independence under the parallel provisions under Art. 222(l) as regards the transfer of a High Court Judge. The view taken in that case by Chandrachud, J. is:

“………..if he proposes to transfer a Judge, he must consult the Chief Justice of India before transferring the Judge. That is the nature of a condition precedent to the actual transfer of the Judge. In other words, the transfer of a High Court Judge to another High Court cannot become effective unless the Chief Justice of India is consulted by the President in behalf of the proposed transfer. Indeed, it is euphemistic to talk in terms of effectiveness, because the transfer of a High Court Judge to another High Court is unconstitutional unless, before transferring the Judge, the President consults the Chief Justice of India.”

179. Krishna Iyer, J. in the same judgment speaking for himself and Fazal Ali, J. has expressed his view that “a proper construction of Art. 222(l), having realistic regard to the setting and scheme of the Constitution, leads necessarily to the conclusion that ‘consultation’ with the Chief Justice of India has, as its inescapable component, the securing of the transferee Judge’s consent to the transfer.”

180. Bhagwati, J. found himself entirely in agreement with what Krishna Iyer J. has expressed.

181. Untwalia, J. while generally agreeing with the view expressed in this regard by Chandrachud, J. added that “no order of transfer can be made by the President without the consultation with the Chief Justice of India.”

182. Thus, it is seen that the consensus of opinion is that consultation with the CJI is a mandatory condition precedent to the order of transfer made by the President so that non-consultation with the CJI shall render the order unconstitutional i.e. void.

183. The above view of the mandatory character of the requirement of consultation taken in Sankal Chand (supra) has been followed and reiterated by some of Judges in Gupta’s case (supra).

Fazal Ali, J. has held in Gupta’s case (supra):

“(3) If the consultation with the CJI has not been done before transferring a Judge, the transfer becomes unconstitutional.”

Venkataramiah, J. in Gupta’s case (supra) has also expressed the same view.

184. In the light of the above view expressed in Sankal Chand and some of the Judges in Gupta’s case (supra), it can be simply held that consultation with the CJI under the first proviso to Art. 124(2) as well under Art. 217 is a mandatory condition, the violation of which would be contrary to the constitutional mandate.

185. Before we come to the next phase of the aspect of this matter as to whether the President (which in the opinion of Bhagwati, J. meant the Central Government), can ignore completely the opinion of the CJI and act contrary to his opinion after due consultation, we shall examine the ostensible purport of consultation with the CJI.

186. The vital role to be played by the CJI in the process of selection of candidates for Judgeship for the superior judiciary is to sponsor and recommend properly fit and competent persons by evaluating their merit and efficiency. It will not be out of place to mention that Shri M. C. Setalvad, the eminent jurist and former Attorney General of India has expressed his deep resentment in the Fourteenth Report of the Law Commission chaired by him, over the existing mode and method of selection of Judges, the motivation for their selection, the external forces and influences working on the method and selection of candidates having a bearing on judicial administration. In fact, the Fourteenth Law Commission Report emphasising the importance of the opinion of the Chief Justice of India recommended the use of the expression ‘concurrence’ instead of ‘consultation’ though it agreed with the use of the expression ‘consultation’ so far as Governor of the State is concerned. The relevant portion of Art. 217 in the light of the amendments suggested read as follows:

“217. (1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Governor of the State and with the concurrence of the Chief Justice of India, and in the case of appointment of a Judge other than the Chief Justice on the recomendation of Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in Art. 224 and in any other case, until he attains the age of sixty years.”

See Law Commission Fourteenth Report Page 70 para 9.

187. It is beyond controversy that merit selection is the dominant method for judicial selection and the candidates to be selected must possess high integrity, honestly, skill, high order of emotional stability, firmness, serenity, legal soundness, ability and endurance. Besides the above, the hallmarks of the most important personal qualifications required are moral vigour, ethical firmness and imperviousness to corrupting or venal influences, humility and lack of affiliations, judicial temperament, zeal, capacity to work. In Texas Law Review (Volume 44) 1966 at page 1068 and 1071, the following passages are found emphasising the desirable qualities of the Judges:

“It is easy to understand why the active judges deem noble inner qualities highly desirable. It is also natural that they should give the highest ratings to good repute. “Good name in man or woman…….is the immediate jewel” of their souls, Shakespeare said, and judges share with you and me a taste for such treasures. As for good health, is there anyone who does not prize it? Nobility and virtue, good name and well-being – these are never out of place. In a man who wields the power and enjoys the standing of a judge, they are more than welcome. No one seeking judicial office would boast that he lacked any of them, and no appointing authority would look for men without them ………..While qualities of the mind were not named as frequent, as qualities of the heart and spirit, intellectual power was not entirely neglected. In the judges’ own words “a capacity for abstract thought”, “imagination”, “learning”, “a retentive memory,” “quick thinking”, “intellectual curiosity”, and “ability to analyze and articulate” deserve attention.

188. It would be most appropriate to recall the speech of Sir Winston Churchill while moving a Bill for raising the salary of Judges. It reads thus:

“The service rendered by judges demands the highest qualities of learning, training and character. These qualities are not to be measured in terms of pounds, shillings and pence according to the quantity of work done. A form of life and conduct far more severe and restricted than that of ordinary people is required from judges and, though unwritten, has been most strictly observed. They are at once privileged and restricted. They have to present a continuous aspect of dignity and conduct.” Vide Parliamentary Debates (Hansard) House of Commons Debates dated 23-3-54 Vol. 525 Cols. 1061-62.

189. In The Role of the Trial Judge in the Anglo-American Legal System 50 ABAJ 125, 127 (1964), Chandler has observed that the Judges “should not only know the laws of procedure and evidence …………. he must be either to use them functionally in making adroit and incessive rulings.”

190. It is befitting, in this context, to describe in short, an outstanding and distinguished Judge, in the words of Shakespeare in ‘The Merchant of Venice’ reading, ‘A Daniel come to judgment! yea, a Daniel!”

191. The crucial question that follows for deliberation is who is to honestly and realistically evaluate the required qualities under the appointive system and select “Daniel to sit in the Solomon’s chair”. Is it the CJI or the executive who has to undertake this process of evaluation and selection?

192. Unfortunately, we have no systematic set of criteria to evaluate or rate the desirable qualities of the selectees to the judicial office. There are global reactions that there are some patent obstacles and defects in the existing process of selection of Judges and that the present impressionistic evaluation is not a satisfactory tool to use in selecting Judges on merit. It cannot be gainsaid that only those who know what criteria they should adopt in assessing merit, can alone evaluate meaningfully a candidate’s merit and select the prospective candidate. While weighing and evaluating the qualifications of the prospective candidate, whose names come to attention, the sponsoring authority has to assess their merit by whatever useful non-bromidic guidelines it could devise based on its long standing experience both on the Bar and the Bench. That authority could be only the Chief Justice of India and the Chief Justice of the High Court concerned who and who alone can speak of a candidate’s professional attainments, his learning ability and his legal experience though the executive can speak of the other qualities such as affiliation, personal integrity, antecedents and background of the candidate. In this connection, it will be worthwhile to mention the observation of Sir Winston Churchill in the House of Commons that “Perhaps only those who have led the life of a Judge can know the lonely responsibility which rests upon him.” Vide Parliamentary Debates (Hansard) House of Commons Debates dated 23-3-54 Vol. 525, Col. 1061. The recipe regarding the professional qualifications could be evaluated only by the Chief Justice. The views advanced that the Government can inexcusably ignore the opinion of the CJI expressed during the process of consultation as well as of the Chief Justice of the High Court and appoint its selectees on its own evaluation of the merit of the candidate, in our considered opinion, cannot be a conceivable logical conclusion.

193. It cannot be gainsaid that the CJI being the head of the Indian Judiciary and pater familias of the judicial fraternity has to keep a vigilant watch in protecting the integrity and guarding the independence of the judiciary and he in that capacity evaluates the merit of the candidate with regard to his/ her professional attainments, legal ability etc. and offer his opinion. Therefore, there cannot be any justification in scanning that opinion of the CJI by applying a superimposition test under the guise of over-guarding the judiciary.

194. In this context, it will be relevant to quote the verse of Decimus Junius Juvenalis, a Roman satirist who while denouncing the vices of imperial Rome stated thus:

“Sed quis custodiet ipsos Custodes? (But who is to guard the guards themselves?)”

195. One should not lose sight of the important fact that appointment to the judicial office cannot be equated with the appointment to the executive or other services. in a recent judgment in All India Judges’ Association v. Union of India JT 1993 (4) SC 618 renderd by a three Judges Bench presided over by M. N. Venkatachaliah, C. J. and consisting of A. M. Ahmadi and P. B. Sawant, JJ. the following observations are made:

“………..The judicial service is not service in the sense of ‘employment’. The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, that is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State-power are the ministers, the legislators and the judges, and not the members of their staff who implement or assist in implementing their decisions. The council of ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, the legislators are different from the legislative staff. So also the judges from the judicial staff. The parity is between the political executive, the legislators and the Judges and not between the Judges and the adminstrative executive. In some democracies like the U.S.A., members of some State judiciaries are elected as much as the members of the legislature and the heads of the State. The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of other services. The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either constitutionally or functionally ……………………………………………….It is high time that all concerned appreciated that for the reasons pointed out above there cannot be any link between the service conditions of the judges and those of the members of the other services………………………………………………………………………….As pointed out earlier, the parity in status is no longer between the judiciary and the administrative executive but between the judiciary and the political executive. Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on par with the administrative executive has to be discouraged.”

(Emphasis supplied)

196. With a view to contradicting and overthrowing the above argument that the executive should not have any unfettered ‘say’ and ‘control’ over the selection and appointment of Judges to the highest echelon of the judiciary, various methods followed in different foreign countries have been projected and pressed into service.

197. Firstly, they referred to the methods adopted in the appointment of Judges in the United States of America by nomination or by election as the case may be, in that the Judges to the federal Supreme Court of the United States are nominated by the President of USA and the Judges to some State judiciaries are elected.

198. They also referred to the Constitution of Courts in the United Kingdom, namely, Supreme Court of England and Wales consisting of the Court of Appeal, the High Court of Justice and the Crown Court and to the status accorded to the Lord Chancellor as the President of the Supreme Court as embodied in the Supreme Court Act of 1981. See Halsbury’s Statutes Fourth Edition Volume 11 pages 756 to 865. It is not necessary to swell this judgment by referring to the detailed procedure of appointment of Judges made in some other countries such as Canada, France, West Germany, Japan and Australia etc. where also, of course, the executive is exclusively vested with the power of appointment of Judges.

199. True, the power of appointment of Judges in many democratic countries is vested in the executive. Though it is said that the Judges of the federal judiciary in USA are nominated and appointed by the President, in fact, that process itself is a very difficult and lengthy one. To put in short, the nominee of the President of US A to the Federal Supreme Court has to appear before the Senate Judiciary Committee for ‘confirmation hearing’ which usually extends over for a few days. During the process of hearing, the nominee is subjected to an incisive and searching questioning regarding the constitutional philosophy of the candidate concerned, his/her legal ability, potentiality etc. The views expressed by the candidate is made known to the entire people of America through media such as newspapers, television etc. It is only thereafter, the Committee makes its recommendations for or against to the Senate which in turn approves or disapproves the candidate by a simple majority of the Senate. If the candidate is approved, his appointment is made for life tenure. Present methods of appointment of State level Judges in United States are:(1) Partisan election (16 States); (2) Non-partisan election (16 States); (3) Appointment by executive (Federal System, 9 States and Puerto Rico); (4) Selection by the legislature (4 States); (5) Merit system (13 States).

200. In the process of election to the State judiciary, there is always an elective element which is unknown to our legal system.

201. Mississippi, in 1832 was the first State to adpot a completely elective judiciary. New York, however, by action of its constitutional convention in 1846, led the switch from legislative and gubernatorial appointment to election. All States entering the Union from then until the entrance of Alaska in 1958 came in with an elected judiciary and even the colonial States of Georgia, Maryland, Virginia and Pennsylvania joined in the switch from appointment to election.

202. Dissatisfaction began to develop immediately after election of the judiciary came into vogue in the mid-1800’s. In the 1860’s, the Tammany Hall organisation in New York City seized control of the elected judiciary and aroused public indignation by ousting able judges and putting in incompetent ones. As a result, the question of a return to the appointment method was submitted to the people by referendum in 1873 but was defeated. Tammany control of the judiciary continued, and similar conditions in other States led to a revulsion against the elective system soon after it was established. Virginia went back to legislative selection after fourteen years of judicial elections. Vermont elected minor court judges for twenty years but abandoned this method in 1870. Even Mississippi went back to appointment in 1868 and retained it until 1910. Furthermore, States which retained the elective system became increasingly concerned about the adverse effect of political selection on the quality of judicial personnel and developed the non-partisan ballot as a means of “taking the judges out of politics.”

203. After long experience with judicial selection by merit in Mississippi, the plan by name Missouri Plan was adopted in 1940. Under that Plan, the nominating Commissioners become important for they set the pattern of the judicial appointments. According to that plan, when a vacancy occurs, the names of all applicants are submitted to the proper judicial commission, generally by letter from the applicant or some friend who wishes to present the application for consideration. The Commission encourages the filing of applications since there is no restriction on the number of applicants. The Commissioners carefully screen the applications determine their qualifications and eligibility and select and submit to the Governor a panel of three names, all of whom are recommended as being competent and well qualified for judicial office. Thereafter, the Governor appoints one of the nominees to judicial office from the panel. Thus, under the Missouri Plan, the judiciary in Missouri had moved from political dependence to judicial independence.

See Texas Law Review (Volume 44) 1966.

204. Thus, it is seen that even in some of the States in the USA, there was rethinking of the selection process of Judges and going back to the process of ‘nomination’ because it had been felt that the direct election system produces politically oriented opinions and invited apathy to judicial activity.

205. In United Kingdom, the Lord Chancellor who is politically designated as head of the judicial hierarchy advices on all appointments to the judicial office from the rank of Justice of the Peace to the higher offices of the English judiciary. The appointments to the Court of Appeal and the House of Lords and to the offices of Lord Chief Justice, Master of the Rolls and President of the Family Division are made on the advice of the Prime Minister after consultation with the Lord Chancellor. He (Lord Chancellor) presides over the House of Lords besides being Member of the Cabinet and Head of the Judiciary. He combines in his position threefold functions of Executive, Legislature and Judiciary. In short, in United Kingdom, the power to select and appoint Judges unquestionably vests in the Executive. However, opinions were expressed that there must be an advisory body to assist the Lord Chancellor in the matter of selection of personnel for appointments to higher judiciary. Consequent upon that in 1972, the Justice Sub Committee on the Judiciary recommended that while the Lord Chancellor should retain control of the appointment machinery, he should be helped in his task by a small advisory Appointments Committee. Vide Law Commission of India (One Hundred Twenty-first Report page 38 para 6.16.)

206. As we have pointed out in the preceding part of this judgment while dealing with the concept of independence of judiciary, even in foreign countries, there is a demand for a change in the system of selection and appointment of Judges. In fact, similar argument was advanced before the Constituent Assembly and suggestions for appointments of Judges were made on the models in existence in different parts of the globe. But Dr. B. R. Ambedkar repelled and rejected that line of argument and suggestions, stating thus:

“It seems to me, in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent which we find in the United States, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day. Similarly, it seems to me that to make every appointment which executive wishes to make subject to the concurrence of Legislature is also not a very suitable provision.”

207. It is not necessary to expatiate on this topic any more and this aspect need not detain us from proceeding further.

208. Nevertheless, we have, firstly to find out the ails under which our judicial system suffers; secondly to diagnose the root cause of those ailments under legalistic biopsies, thirdly to ascertain the nature of affliction on the system and finally to evolve a new method and strategy to treat and cure those ailments by administering and injecting a ‘new invented medicine’ (meaning thereby a newly developed method and strategy) manufactured in terms of the formula under Indian pharmacopoeia (meaning thereby according to national problems in a mixed culture etc.) but not according to American or British pharmacopoeia which are alien to our Indian system though the system adopted in other countries may throw some light for the development of our system. The outcry of some of the critics when the power of appointment of judges in all democratic countries, far and w