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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.

1. JAMUNA PRASAD MUKHARIYA AND OTHERS v. LACHI RAM AND OTHERS, ;

2. SAKHAWANT ALI v. STATE OF ORISSA, ;

3. SMT. INDIRA NEHRU GANDHI v. SHRI RAJ NARAIN, ;

4. EBRAHIM SULAIMAN SAIT v. M.C. MOHAMMED AND ANOTHER, ;

5. THE RAILWAY BOARD, NEW DELHI AND ANOTHER v. NIRANJAN SINGH, ;

6. MAHARAO SAHEB SHRI BHIM SINGHJI v. UNION OF INDIA AND OTHER, ;

Mr. Veerabhadrappa appearing for some of the contesting respondents has submitted that all that the Act prohibits is voting and not participation in the elections. He submitted that proviso to Section 3 of the Act contains reasonable restrictions to the exercise of the right to participate in the elections and there is no absolute bar to vote or to refrain from voting subject to the restrictions contained in the provisions of Section 3 of the Act; that the 10th Schedule incorporated in the Constitution by the 52nd Amendment to the Constitution imposes certain disqualifications on defectors and the same disqualifications are incorporated under the provisions of the Act; that the disqualifications prescribed under the Constitution are found under Article 102(2) and Article 191 of the Constitution and these disqualifications are essential for a proper working of the democratic form of Government based on the written Constitution; that the right to vote under the Act is only a statutory right and not a constitutional right, so there could be no violation of Article 14 of the Constitution. Section 3 is only a deterrant which ensures the command of the party whip or the discipline in the party. He relied on certain books on Constitutional Law which emphasise the party system in a democratic form of Government and submitted that even though our Constitution does not expressly stipulate elections based on party system, that is also a part of the basic structure of the Constitution which is based on the party system and if this view is accepted as correct, Section 3(1)(b) of the Act cannot be impeached on the ground that a person is prevented from voting against the party whip or the party programme. He relied on the decision of the Punjab & Haryana High Court reported in PRAKASH SINGH BADAL & OTHERS v. UNION OF INDIA AND OTHERS, in support of his contention.

We are now dealing with a State enactment. Whether the theory of basic structure of the Constitution could be pressed into service to test the validity of a State enactment is no longer open to any legal debate in view of the decision of the Supreme Court in Indira Gandhi's case, . The Supreme Court has ruled in that decision thus:

".....The argument regarding the invalidity of the Representation of the People (Amendment) Act, 58 of 1974, and of the Election Laws (Amendment) Act, 1975 has, however, no substance. The Constitutional amendments may, on the ratio of the Fundamental Rights case, be tested on the anvil of basic structure. But apart from the principle that a case is only an authority for what it decides, it does not logically follow from the majority judgment in the Fundamental Rights case that ordinary legislation must also answer the same test as a constitutional amendment. Ordinary laws have to answer two tests for their validity: (1) The law must be within the legislative competence of the legislature as defined and specified in Chapter I, Part XI of the Constitution and (2) of the Constitution. 'Basic Structure,' by the majority judgment, is not a part of the fundamental rights nor indeed a provision of the Constitution. The theory of basic structure is woven out of the conspectus of the Constitution and the amending power is subjected to it because it is a constituent power. 'The power to amend the fundamental instrument cannot carry with it the power to destroy its essential features' - this, in brief, is the arch of the theory of basic structure. It is wholly out of place in matters relating to the validity of ordinary laws made under the Constitution."

19. To sum up, (a) neither the provisions of Section 3(1)(b) nor the provisions of Section 4 of the Act are invalid being violative of Article 14 or Article 19(1)(a)and 19(1)(c) of the Constitution; (b) the provisions of Section 8 of the Act are not bad in law on the ground it takes away the power of judicial review of the actions of the authorities constituted under Section 4 of the Act. The power of judicial review by this Court under Article 226 of the Constitution is not taken away by the provisions of Section 8 of the Act: (c) The Act being a State enactment it is impermissible for the petitioners to challenge the constitutionality of the Act on the ground it is opposed to the basic structure of the Constitution; (d) Right to vote is neither a fundamental right nor a constitutional right, but a statutory right; (e) The Act is a valid piece of legislation and the provisions of Section 3(1)(b), 4 and 8 of the Act do not offend any of the provisions of the Constitution.