Equivalent Citation

[1992 SCR (1) 686, 1992 SCC Supl. (2) 651]


By Hon’ble Justice Sharma, L.M.,
By Hon’ble Justice Venkatachalliah, M.N.,
By Hon’ble Justice Verma, Jagdish Saran,
By Hon’ble Justice Reddy, K. Jayachandra and
By Hon’ble Justice Agrawal, S.C

Date of Judgment

February 18, 1992

Provisions Involved

Articles 102(2), Article 122(1), Article212(1), Article 368 of Constitution of India


A constitution is a written document that contains rules, laws, and regulations for the government of a country. The Indian Constitution is regarded as the country’s supreme or “grundnorm” law. Its preamble speaks of people’s sovereignty, democratic polity, justice, liberty, equality, and brotherhood, all of which ensure the individual’s dignity as well as the nation’s unity and integrity. The Preamble is based on Nehru’s beliefs, which constituted the foundation for the constitution’s construction After the constitution was created, it didn’t take long for political insiders to convince Indian framers. Following Nehru’s death, India experienced a decline in political morals and an unpleasant increase in political corruption. The disorderly floor-crossing was a blow to the electoral system and weakened the government’s three organs. Parliament passed the Constitution (Fifty-Second Amendment) Act in early 1985, making defections illegal.

Factual Observations

The constitutional legitimacy of the Tenth Schedule established by the Constitution (Fifty-Second Amendment) Act, 1985, was challenged in the case of Kihota Hollohon v. Zachilhu and Ors. Writ Petitions, Transfer Petitions, Civil Appeals, Special Leave Petitions, and other proceedings presenting common questions were all heard jointly, bringing the petitioners together. The Constitution (Fifty-second Amendment) Act substituted the tenth schedule for four articles of the Constitution, namely 101(3)(a), 102(2), 190(3)(a), and 191(2). In a 3:2 judgment in the case, the Hon’ble Supreme Court upheld the constitutional legitimacy of the Anti-Defection Law. Justices M.N. Venkatachaliah, K.J. Reddy, and S.C. Agrawal made up the majority, while Justices L.M. Sharma and J.S. Verma made up the minority. Simultaneously, the Supreme Court ruled that the speaker’s directives under the law barring an MLA from serving because of defection are subject to judicial review.

Issues Raised

  1. Whether the changes made by the 52nd amendment are legally acceptable?
  2. Whether the additions made by the 52nd amendment have constitutional validity?

Applicability of Doctrine of Severability

As stated in the definition itself, the doctrine of severability can be applied to a composite amendment that contains amendments that do not require ratification by States as well as amendments that do require such ratification, and the amendment can be upheld in respect of the amendments that do not require ratification and are within the competence of Parliament alone by applying the doctrine of severability. Only the revisions to the proviso’s provisions that require approval must be struck down or declared illegal. The severability test asks the Court to determine whether the legislature would have adopted the legislation at all if the severed element was not a part of it, and if what remains after severance can stand alone and is functional.

The doctrine of severability applies when a piece of otherwise lawful legislation contains a provision that is invalid due to a lack of legislative competence, and the invalid section is severable, leaving the remaining valid provisions intact. This theory does not apply where legislation is invalidly enacted because of non-compliance with a mandatory legislative procedure, such as the mandatory special procedure for exercising constituent power. The theory does not apply to legislation that has not yet been enacted. Even if it may be feasible to keep a stillborn alive by surgical skillfully removing a congenitally faulty portion, it is not possible to infuse life into a stillborn referred in The Bribery Commissioner v. Pedrick Ranasinghe1.

Laws/Provisions Involved

Schedule 10
The first paragraph begins with definitions, the second with disqualifications, the third with divisions within the party (now deleted by the 2003 amendment to the constitution), the fourth with a few disqualifications that do not apply just in mergers, and the fifth with some exemptions. The sixth and seventh paragraphs state who will resolve disputes and restrict courts from hearing concerns about a member’s disqualification, and finally, the last paragraph allows a speaker to make rules for a House to give effect to the provisions of the Schedule.

Most of these provisions are subject to adjudication and interpretation by the courts of the land. Paragraph 2, which outlines a member’s disqualifications, is perhaps the one provision that has been scrutinized by the courts.

Ratio Decidendi

People’s lifestyles shape the law’s profile, not the other way around. A finality clause is not a magical legislative incantation that prevents Judicial Review from proceeding. A decision’s statutory finality assumes and is dependent on its adherence to the law. The scope of judicial review under Articles 136, 226, and 227 of the Constitution in relation to an order made by the Speaker/Chairman under would be limited to jurisdictional errors, such as infirmities based on constitutional mandate violations, mala fides, non-compliance with natural justice rules, and perversity. The courts follow the notion that, notwithstanding a finality provision, it is open to the court to determine whether the action of the challenged authority is ultra vires the powers conferred on it. An action can be ultra vires if it is carried out in violation of a mandatory provision of the law granting the authority the ability to do so. If the authority’s powers are vitiated by mala fides or a colorable use of power based on extraneous and irrelevant considerations, it will be supra vires.

Case Law Referred

Eight sections of the Bombay Prohibition Act, 1949 were found illegal by the court in State of Bombay v. F.N. Balsara2 on the grounds that they were in violation of certain constitutional provisions and essential freedoms. The Supreme Court ruled that the sections of the law that were declared unconstitutional were valid because they were not inextricably linked with the remainder of the Act, they were severable from the rest of it. It was one thing to say that the Legislature would not have enacted the Act, but it was another to say that the Legislature would not have enacted it. It would be impossible to pass the Act without adding the elements that were judged to be illegal.

Likewise, the Supreme Court stated in A.K. Gopalan v. the State of Madras3 that if a law is unconstitutional, just the part that is unconstitutional will be declared void, not the entire law, and every effort should be made to save as much of it as possible. If the invalid part’s omission has no effect on the character or structure of the document, it will be considered a severable legislative object.


The minority judges held that the Constitution was violated because the Constitutional scheme for deciding on questions of disqualification of members after being duly elected contemplates adjudication of such disputes by an independent authority outside the House, namely the President or Governor, in accordance with the opinion of the committee, all of whom are high Constitutional functionaries.

The Election Commission came to the same conclusion as the minority judges in this instance. It issued suggestions in 1977, recommending that disqualification for defection be referred to the Election Commission for an opinion to be given to the President or Governor, because the matter might potentially be, and as with other disqualifications alluded to in Articles 102 and 191 of the constitution, the President or the Governor will act on the Election Commission’s recommendation.

As a result, it was determined that paragraph 6 of the Tenth Schedule did not create a non-justiciable territory. The Speaker/power Chairman’s to resolve disagreements could be considered judicial. The ‘finality clause,’ which prepared the way for the majority to prevail in the verdict, is an important construction.

Own Analysis/Opinion

The Anti-Defection Law was enacted to counteract the “evil of political defections.” However, the phrase “voluntarily giving up membership in a political party” must be defined more clearly. The President/Governor should make agreements under the Tenth Schedule based on the Election Commission’s binding advice. Disqualification should be limited to situations in which a member voluntarily resigns from his political party, abstains from voting, or votes against the party whip in a confidence/non-confidence vote.

The law that has prevented individual defections must now be used to prevent mass defections. It’s also necessary to challenge the speaker’s function. For his tenure, the speaker is reliant on the support of the legislature’s majority. As a result, he does not meet the criteria for an ‘individual adjudicatory body.’ It is not practical to repeal the Anti-defection law completely, but the long-term solution is to keep a check on political culture, and legislators who act in contempt or with mala fide intent should be voted out in subsequent elections, as the ultimate agency in the world’s largest democracy rests with the Indian people. That’s why the doctrine of severability has made it easy to combat with kind of issues and help in avoiding any kind of misuse of arbitrary powers.

The president of the parliament, and the governor of the state legislature, may report the subject to the Election Commission under Articles 102 and 192, respectively. This appears to be the only way to avoid the speakers’ political biases in their judgments. If the government wishes to keep the current arrangement, the Supreme Court will have to exercise far more judicial review power over the Speaker’s decision under the Anti-defection law than the Supreme Court is willing to do now under the Kihota Hollohon case.

Concluding Observations

After analyzing the situation in the instant case, it can be concluded that the concerns of construction and severability are distinct because, where more than one reasonable interpretation is available, one upholding the legitimacy of the legislation and the other invalidating it, the former would be accepted, and in the situation that both are possible, the former would be accepted.

If this isn’t practicable, the court has no choice but to decide whether the entire statute should be repealed, stricken down, or the excellent and bad elements can be separated. Also, the Separation of valid and invalid provisions of a statute is not determined by whether the law is enacted in the same section or in distinct parts; what matters is the substance of the matter, which must be determined through a thorough examination of the Act as a whole, as well as the enactment of the applicable provisions. Despite its relative obscurity, the philosophy has far-reaching implications. On the one hand, rejecting entire legislation for one erroneous provision is the most invasive remedy; on the other hand, the Supreme Court is hesitant about amending statutes by removing portions of them. Prior to the passage of the Tenth Schedule, there was no such thing as a “political party” under the Constitution, but their existence is now acknowledged under the Anti-defection Act.


  1. [1965] AC 172
  2. AIR 1951 SC 318.
  3. AIR 1950 SC 27.

Analysis by Hemant Bohra student at School of Law, Lovely Professional University, Punjab.

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