When the court banishes morality

The 1993 Kihota judgment had upheld the anti-defection law in the Tenth Schedule of the Constitution by directing the Speaker to a judicial tribunal and making his decisions under the Schedule subject to the final say of courts. There the issue of the nature of the same Article 1052 had come up. It was contended that Para 2 of the Tenth Schedule violated Article 1052 which stated: quot;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,quot; The corresponding provision for state assemblies and councils was Article 194. Para 2 of the Tenth Schedule disqualified MPs and MLAs who voluntarily gave up the membership of the political party on whose ticket they had been elected and also those who voted or abstained from voting contrary to any direction of the political party to which they belonged. No disqualification would be incurred in the case of a split having one-third MPs or MLAs of that political party, a merger and resignation from a political party on being elected as a Speaker, Deputy Speaker, Chairman or Deputy Chairman.

The contention in the Kihoto case that these provisions of the anti-defection law violated the freedom of speech and vote conferred on MPs and MLAs by the Constitution in Articles 105 and 194 was repelled by recognising the freedom to speak and vote inlegislatures within the framework of a democracy based on political parties wherein the underlying premise is that the lure of office or money cannot be allowed to prevail.

Unfortunately, the April 17 judgment of the Supreme Court not only completely ignores this portion of the Kihoto judgment but three of the five judges do not make any reference at all to the majority judgment in Kihoto delivered by the then Justice M.N. Venkatachaliah. Justices S.C. Agarwal and A.S. Anand in their joint judgment make a passing reference to it only in the context of the question of sanction to be accorded for prosecution of bribe-takers under certain sections of the Prevention of Corruption Act.

Accordingly, the most painful and sad aspect of the April 17 Narasimha Rao judgment is the complete absence of the moral tone in the interpretation of the Constitution. The Kihoto judgment had used the guide of quot;political propriety and moralityquot; to hold that the liberty of MPs and MLAs to speak and vote under Article 1052could not be elevated into a fundamental right. But in a complete reversal of all known canons of parliamentary democracy, declared by the court to be a basic feature of the Constitution that MPs and MLAs cannot change by amending the Constitution, the Supreme Court on April 17 gave MPs and MLAs fundamental right against the people of India for bribed speech and bribed voting. At one stroke the constitutional principles of only citizens having a fundamental right against the state which under Article 12 includes Parliament, the apex court erected defence of quot;basic structurequot; against political villainy and the Constitution as a document limiting power, stands demolished without even a reference to or a consideration of these issues in the judgment. It is this amoral, objective approach of not allowing quot;our sense of indignation to construe the Constitution narrowlyquot; concerning free speech and vote of MPs, that explained why the apex court did not refer to and examine the vital words quot;subject to the provisionsof this Constitutionquot; given in Article 1051 and 1941.

A judicial sense of indignation would have led to making a moral choice between a legal interpretation of subjecting or not subjecting free speech and vote of MPs and MLAs to the other provisions of the Constitution and the judgments of the apex court spelling out the Constitution. That moral choice has simply been wished away.