JAYASHANKARA GOWDA Vs. CHIEF SECRETARY

JUDGEMENT

(1.) In this batch of Writ Petitions the constitutional validity of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (hereinafter referred to as the Act) is challenged by the petitioners on various grounds. Principally their challenge is premised on the ground of violation of Articles 14, 19(1)(a) and 19(1)(c) of the Constitution of India, Additionally they have submitted that the Act offends the basic structure of the Constitution and therefore should be declared as void. Briefly stated, their arguments are that in the absence of any party system in the Constitution, the Act is violative of the constitutional rights guaranteed under the Constitution of India; that the defection of an individual is sought to be penalised whereas the defection of a group of individuals is legalised and thereby there has been discrimination which violates their rights, protected under Article 14 of the Constitution; that Sections 3 and 4 of the Act should be read as a whole and thus construed the provisions of the Act take away the right of adult franchise which is the basic structure of the Constitution and the only remedy to redress the evils of defection is the right of recall and not the right to disqualify the members for their acts of defection; that the power of judicial review is also taken away as is clear from Section 4 read with Section 8 of the defection Act; that the right to free and fair elections is one aspect of the fundamental right to the freedom of speech protected under Article 19(1)(a) of the Constitution of India; that in the absence of proper definition of the word 'defection' in the Act, the provisions of Sections 3 and 4 impair the fundamental rights guaranteed under Articles 19(1)(a) and 19(1)(c) of the Constitution of India. It is also contended that there is no Legislative competence to pass the Act; that the provisions of Section 4(2) of the Act should be read with the provisions of Section 138 of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as the Zilla Parishad Act') and Section 6 of the said Act with Entry 5 in List II of Schedule 7 and Entry 13 in the same list; that there is discrimination between a political party and an independent party and such discrimination is bad in law; that there is a distinction between defection and dissent in that the right of dissent in a political party should be protected since the right of dissent is one aspect of the right to the freedom of speech; therefore, eventhough Section 3(1)(b) of the Act could be treated as valid, since it relates to voluntary resignation from the membership of the party, the validity of Section 3(1)(b) of the Act cannot be sustained since Section 3(1)(b) of the Act relates to voting and restraining from voting in any meeting of the Zilla Parishad or Mandal Panchayat contrary to the direction issued by a political party to which a person belongs and such restriction affects the right to dissent which is guaranteed under the Constitution and that right cannot be whittled down by the provisions of Section 3(1)(b) of the Act; Section 3(1)(b) of the Act, in a sense amounts to political serfdom and though the right to vote is a statutory right guaranteed under the Zilla Parishad Act, the exercise of that right is a fundamental right since the right to free and fair elections is one aspect of the basic structure of the Constitution and therefore, unless defection is made for personal gain, defection which was induced or motivated by a right to dissent cannot be prohibited under the provisions of Section 3(1)(b) of the Act; that the word 'election' means voting by ballot, that is, secret ballot and that 'Vote' means a voluntary expression of the will of the individual who votes and that formal expression of the will is protected by the provisions of Article 19(1)(a) of the Constitution; that the consequences of exercising the right to dissent which is called defection under the Act are also very drastic and are opposed to the provisions of the Representation of People Act in that under the Anti-defection Act a person is disqualified for life if he commits any act in violation of Section 3(1)(b) of the Act and such disqualification is unreasonable, arbitrary and is opposed to Articles 14 and 19(1)(a) and (c) of the Constitution; that when the petitioners have pleaded the necessary facts to bring their case under Article 14 of the Constitution, the burden is shifted on to the State to prove that there is no discrimination attracting the vice protected under Article 14 of the Constitution and the State having not discharged the burden, this Court should take the view that the provisions of Section 3(1)(b) of the Act are hit by the provisions of Article 14 of the Constitution; likewise, the provisions of Article 19 of the Constitution are also attracted, the State having not discharged its burden to prove the contrary; that the rights of the petitioners are also as much part of the fundamental rights as constitutional rights and that the restrictions imposed under Section 3(1)(b) of the Act should be tested by the positive rights guaranteed under Article 19(1) of the Constitution and the negative rights also must be judged by the same standard as this Court judges the positive rights conferred by the Constitution; that different authorities have been appointed under the Act for the adjudication of defections and that is also one more ground attracting the vice protected under Article 14 of the Constitution and the power of judicial review is also taken away which offends the basic structure of the Constitution; that in the absence of innerparty democracy in the present political set up which this Court could take judicial notice of, there could not be any party whip which could be binding on the alleged defector and therefore, Section 3(1)(b) of the Act must be declared as bad in law; that there is no accountability of any political party to any independent authority in the light of the observations of the Full Bench of Jammu & Kashmir High Court in MIAN BASHIR AHMAD v. STATE OF J & K AND OTHERS, AIR 1982 Jammu & Kashmir 26; that two learned Judges of the Jammu & Kashmir High Court had invalidated the provisions of the Jammu & Kashmir Anti-defection Act and this Court should take the same view and declare that the impugned Act as bad in law. The petitioners have drawn much support from the provisions of the Constitution as also the provisions of the Representation of People Act in support of their contentions.

(2.) Learned Government Pleader appearing for the State Government has sustained the validity of the Anti-defection Act on the following grounds: That the Act does not affect the basic structure of the Constitution on the ground that the jurisdiction of the High Court under Article 226 of the Constitution is taken away. He has submitted that Section 8 of the Act does not take away the jurisdiction of the High Court under Article 226 of the Constitution in the light of the ruling of the Supreme Court in THE STATE OF HARYANA v. THE HARYANA CO-OPERATIVE TRANSPORT LTD. AND OTHERS, AIR1977 SC 237 , 1977 LablC32 , (1977 )1 SCC271 , [1977 ]2 SCR306 , 1977 (9 )UJ25 (SC ). Secondly, the decision of the Full Bench of the Jammu & Kashmir High Court on which the petitioners have relied is wholly inapplicable to the facts of these petitions as the provisions of Section 24(G) of the Jammu & Kashmir Act are not in pari materia with the provisions of Section 3 of the impugned Act; that there is no provision for condonation of defection under the Jammu & Kashmir Act and there is also no provision for disqualifying the members belonging to an independent party in the said Act; that the analogy of the right of a Member of Legislative Assembly to exercise his constitutional right is wholly inapplicable to the right of a Zilla Parishad or a Mandal Panchayat member to vote under the Zilla Parishad Act; that the Members of Legislative Assembly have certain constitutional rights by virtue of the provisions of the Constitution whereas the Zilla Parishad or Mandal Panchayat members only have certain statutory rights conferred by the Zilla Parishads Act; that the election of these members to Zilla Parishad and Mandal Panchayat, as the case may be, is controlled by the Karnataka Zilla Parishads, Taluka Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats (Conduct of Election) Rules, 1985, framed under the Zilla Parishads Act; that the provisions of Article 19(1)(a) and 19(1)(c) are not applicable to the facts of these petitions since the members of the Zilla Parishad and Mandal Panchayat have only a statutory right to vote under the Zilla Parishads Act and not a constitutional right and that statutory right could be made subject to reasonable restrictions and those restrictions are found in Section 4 of the Act. The learned Government Pleader relying on the decision of the Patna High Court in RAM NARESH RAI AND ANOTHER v. STATE OF BIHAR AND OTHERS, AIR1977 SC 237 , 1977 LablC32 , (1977 )1 SCC271 , [1977 ]2 SCR306 , 1977 (9 )UJ25 (SC ), submitted that the disqualification prescribed under the Act also extends to local bodies and the machinery prescribed for deciding whether a person has been disqualified himself is adequate for the purpose of adjudicating such disqualification; that the Act prescribes a summary enquiry and that is sufficient for the adjudication of disqualification since the proceedings of election would disclose who had voted for whom and that would provide enough material to come to the conclusion whether a person has incurred the disqualification under Section 3 of the Act. He has also relied on the following decisions of this Court and the Supreme Court in support of his contentions: 1. JAMUNA PRASAD MUKHARIYA AND OTHERS v. LACHI RAM AND OTHERS, AIR1954 SC 686 , [1955 ]1 SCR608 ; 2. SAKHAWANT ALI v. STATE OF ORISSA, AIR1955 SC 166 , [1955 ]1 SCR1004 ;

(3.) SMT. INDIRA NEHRU GANDHI v. SHRI RAJ NARAIN, AIR1975 SC 2299 , 1975 (Supp)SCC1 , [1976 ]2 SCR347 ;