State of Punjab Vs. Sat Pal Dang &
Ors  INSC 167 (30 July 1968)
30/07/1968 HIDAYATULLAH, M. (CJ)
HIDAYATULLAH, M. (CJ) SHAH, J.C.
CITATION: 1969 AIR 903 1969 SCR (1) 478
R 1970 SC 765 (10) R 1974 SC1533 (16) R 1977
SC1361 (200) RF 1988 SC 440 (23) R 1992 SC 320 (31)
Constitution of India, 1950, Arts. 174, 189,
199, 208, 209, 212 and 213--Rules of Procedure and Conduct of Business in the
Punjab Legislative Assembly, rr. 7, 105 and 112--Prorogation of Assembly by
Governor, how to be notified--When commences-Governor's power of promulgation
of Ordinance--Scope of--If extends to making law under Art.
209--Punjab Legislative (Regulation of
Procedure in Relation to Financial Business) Ordinance, (1 of 1968), s.
3--Conflict with Art. 189(4) and r. 105 of
Rules of Procedure--If section unconstitutional--Speaker's ruling how far final
and beyond challenge in courts of law--Deputy Speaker, if can certify Money
Bills in place of Speaker.
On the 7th of March, 1968, the proceedings in
the Punjab Legislative Assembly led to rowdy scenes and the Speaker, acting
under r. 105 of the Rules of Procedure and Conduct of Business in the Punjab
Legislative Assembly made under _Art. 208 of the Constitution, adjourned the
Assembly for two months. This led to an impasse. The Assembly was in session
but it was put in a state of inaction by the adjournment. The Budget 'Session
of the Assembly had to reach a conclusion before 31st March, as, after that date,
no money could be drawn from the Consolidated Fund and no expenditure in the
State could be incurred. The Governor, therefore, on 11th March prorogued the
Assembly under Art.
174(2) (a). The order of the Governor was
caused to be printed in the State Gazette the same day by the Chief Secretary
under the Business Rules, and copies of the Gazette were dispatched to the
Secretary of the Assembly, the Speaker and other members on the following day.
On 13th March, the Government promulgated the Punjab Legislature (Regulation of
Procedure in Relation to Financial Business) Ordinance, 1968. Section 3 of the
Ordinance provides that the sitting of either House of Legislature was not to
be adjourned without the consent of the House until completion of financial
Business. On 14th March, the Governor summoned the Legislative Assembly under
Art. 174, fixing 18th March for its sitting, and, under Art. 175(2), directed
the Assembly to consider the Estimates of Expenditure, the Demands for
Supplementary Grants and two Appropriation Bills. On 18th March, after
considering certain other matters, the Speaker ruled that the House was
prorogued not on the 11th March but on the 18th. and that in accordance with
his earlier ruling dated 7th March, the House stood adjourned for two months.
After some commotion the Deputy Speaker occupied the Chair and the Assembly
The proceedings were conducted without demur
even from the opposition. The Bills were passed. The Bills were then
transmitted to the Legislative Council certified by the Deputy Speaker that
they were Money Bills. The Speaker wrote to the Chairman of the Legislative
Council pointing out that there was no certificate by him as required Art.
199(4) and that he had adjourned the Assembly
when the Bills were adopted. The Legislative Council, however, considered and
passed the two Bills and the Governor assented to them.
On the questions whether: (1) the prorogation
took effect on 18th March and therefore the summoning of the Legislature before
prorogation was invalid; (2) the Ordinance could not be passed by the Governor,
because, the prorogation was a fraud on the Constitution and since the 479
prorogation was invalid the House continued to be in session; (3) The
Governor's power to promulgate an Ordinance is confined to Lists II and Iii of
the Seventh Schedule to the Constitution; (4) Section 3 of the Ordinance was
unconstitutional as there was a conflict with, (a) r. 105 of the Rules of
Procedure made under Art. 208 which gives power to Speaker to adjourn the
Assembly or suspend sitting in case of grave disorder, and (b) Art. 189(4)
which gives power to the Speaker to adjourn the Assembly or suspend the meeting
for want of quorum; (5) ruling of the Speaker given on 18th March was not open
to challenge in courts; (6) the further proceedings in the Assembly were
illegal and (7) the two Appropriation Acts were ultra vires because, the Deputy
Speaker and not the Speaker, certified them as Money Bills to the Legislative
Council and the Governor.
HELD: (1) Under r. 7 of the Rules of
Procedure framed under Art. 208. when a session of the Assembly is prorogued
the Secretary of the Assembly shall notify the order in the Gazette and inform
the members. The words indicate that there is already a prorogation and the rest
of the rule is intended for communication of the fact to the public and
conveying the order to the members. It cannot be said from this that only the
Secretary of the Assembly could so notify and that the Governor could not
notify his order of prorogation. [489 E-F; 490 B] Article 174(2), which enables
the Governor to prorogue the Legislature does not indicate the manner in which
he is to make known his orders. The means open to him are 'public notification'
that is, notification in the Official Gazette and 'proclamation'. If he
notifies in the Gazette through his Chief Secretary acting under the Business
Rules, it becomes a public act of which the Court should take judicial notice.
Therefore, in the present case the prorogation to place on the 11th March, '1968,
the date of publication in the Gazette, and the Legislature was resummoned only
thereafter. The resummoning of the Legislature by the Governor was also a step
in the right direction as it set up once again the democratic machinery which
had been disturbed by the Speaker. [490 A-E] (2) Under Art. 174(2) there are no
restrictions on the power of the Governor to prorogue. The power being
untrammeled and an emergency having arisen, there was no abuse of power by him
nor can his motives be described as msla fide. In fact it was the only
reasonable method of getting rid of the adjournment and solving the political
crisis. The House, in fact, transacted other business showing that the
prorogation and resummoning were considered valid. After the prorogation there
was no further curb on the legislative power of the Governor to promulgate the
Ordinance. [448 D, F-G; 490 E-F] Kalyanam v. Veerabhadrayya, A.I.R. 1950 Mad.
243, referred to.
(3) The Governor's power under Art. 213 of
the Constitution, of legislation by Ordinance is as wide as the power of the
Legislature of the State and therefore, includes the power to pass a law under
Art. 209 in relation to financial business. [490 G-H] (4) (a) The inconsistency
between the section and r. 105 has to be resolved in favour of the section
because the latter part of Art. 209 itself provides that in cases of repugnancy
between the rules of procedure framed under Art. 208 and a law made under Art.
209., the tatter shall prevail; (b) As regards the conflict with Art. 189(4)
the rule of statutory interpretation--namely, that, even if the language of a
statute is prima facie wide it should be understood, if possible, as not
attempting something beyond the competence of the legislative body--applies,
because, 480 whether a provision should be struck down or read down depends
upon how far it is intended to go. In the present case, the Ordinance could
never provide for want of quorum which is dealt with in the Article and in
therefore a constitutional requirement. The Article continues to operate in
situations contemplated by it and s. 3 of the Ordinance can only deal with
other situations. Therefore the section could be read down so as to harmonise
with the Article. [492 B-C; F-H; 493 A] Diamond Sugar Mills v.U.P.  3 S.C.R.
242; Romesh Thappar v. State of Madras  S.C.R. 594 and Kameshwar Prasad
v. State of Bihar,  Supp. 3 S.C.R. 369, referred to (5) Whether the
Speaker adjourned the Assembly afresh or declared that the former adjournment
continued to operate made no difference, because:
(a) the former andoursment had come to an end
by a valid prorogation and [493 F-G] (b) on the 18th March the Speaker was
faced with a valid Ordinance, which was binding on the Assembly, including the
Speaker, by virtue of Art. 209. Therefore, the Speaker was powerless and the
fresh adjournment by him of the session without taking the mandete of the
Assembly by majority as required by s. 3 of the Ordinance was null and void.
[493 D- E] It could not be urged that whatever the merits of the Speakers
ruling may be, it should be treated as final and beyond challenge in courts. A
decision of the Speaker on a point of order is final under r. 112 of the Rules
of Procedure, only if it is raised in relation to the interpretation and enforcement
of the rules and the interpretation of the Articles of the Constitution
regulating the business of the House and if the question to be decided was
within/he Speakers cognizance In the present case, the Speaker did not attempt
to interpret Arts. 208, 209 and 213, and instead of a resolution (which was the
proper method of questioning the Ordinance) being passed under Art. 213(2)(a)
disapproving the Ordinance the Speaker asserted himself against a law which was
binding on him.
[494 A-B, G-H] (6) The continuance of the
proceedings under the Deputy Speaker was vaild, complying as it did, with the
law promulgated by the Governor, and therefore. the finaneial business
transacted before the Assembly had legal foundation. [495 C-D] (7) A provision
of law is usually regarded as merely directory, even though a public duty is
imposed by it and the manner of performance is also indicated in imperative
language when general injustice or inconvenience result to others if strict
compliance is deemed mandatory, and they have no control over those exercising
the duty. Judged by this test. Art. 199(4) requiring the Speakers certificate
cannot be viewed as mandatory but only as director in view of the inconvenience
to the State and to the public at large that may be caused by holding the
provision imperative and not directory. If the Constitution s law the necessity
of providing a Deputy Speaker to act as the Speaker during the latter's absence
or to perform the office of the Speaker when the office is vacant, it stands to
reason that the Constitution could never have reposed a power of mere
certification absolutely in the Speaker and Speaker along Further Art. 212(1)
provides that the validities of any proceeding in the Legislature of a State
shall not be called in question on the t, round of any alleged irregularity of
procedure. [496 D-G; 497 B-C, D-E] State of Bombay v R.M. 1). Chamarbauewala,
 S. R.
874, State of U.P. v Manbodhan Lal Srivastava
533, State of 481 U.P. v. Babu Ram Upadhya
 2 S.C.R. 679, M/s. Mangalore Ganesh Bidi Works v. State of Mysore,
1 S.C.R. 275, Patna Zilla Brick Owners
Association v. State of Bihar, A.I.R. 1963 Pat. 16 and May's Parliamentary
Practice p. 842. referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 1427 and 1428 of 1968.
Appeals from the judgment and order dated May
10, 1968 of the Punjab and Haryana High Court in Civil Writs Nos.
12261227 of 1968.
C.K. Daphtary, Attorney-General, Niren De,
Solicitor General, G.R. Majithia, Dy. Advocate-General for the State of Punjab,
R.N. Sachthey and S.P. Nayar, for the appellant (in both the appeals).
R.K. Garg, S.C. Agarwal, Anil Kumar Gupta,
N.M. Ghatate, K.M.K. Nair, Chand Kishore, S.P. Singh, Baldev Singh Khoji and
B.P. Singh, for respondent No. 1 (in C.A. No. 1427 of 1968).
S.K. Dholakia and K.L. Hathi, for respondents
Nos. 2-4 (in C.A. No. 1427 of 1968) and respondents Nos. 2, 12 to 14 and 16 (in
C.A. No. 1428 of 1968).
1. N. Kaushal, and Urmila Kapur, for
respondent No. 6 (in C.A. No. 1427 of 1968),and respondent No. 8 (in C.A. No. 1428
M.C. Chagla, B.S. Dhillon and Hardev Singh,
for respondents Nos. 1 to 6 (in C.A. No. 1428 of 1968).
Rajender Sachar and 1. C. Talwar, for
respondent No. 7 (in C.A. No. 1428 of 1968).
The Judgment of the Court was delivered by
Hidayatullah, C.J. These appeals arise from two petitions under Art. 226 of the
Constitution questioning the validity of Punjab Ordinance I of 1968 promulgated
by the Governor of Punjab on March 13, 1968 and Punjab Appropriation Acts Nos.
9 and 10 of 1968. A Full Bench of the High Court of Punjab & Haryana
consisting of Mehr Singh C.J. and Capoor, Harbans Singh, Mahajan and Bedi, JJ.
held unanimously that the two Acts were unconstitutional and, by majority, that
the Ordinance was also unconstitutional. The High Court certified the cases
under Arts. 132 and 133(1)(c) of the Constitution and the State of Punjab
appeals. The relevant facts were these:
At the Fourth General Elections Congress won
43 seats in the Legislative Assembly which has a membership of 104. The other
parties (none of which had a majority in the House) combined and formed the
United Front Party. A Ministry was formed 482 under Sardar Gurnam Singh. Some
of the respondents here Minister and members supporting the Ministry. Lt. Col.
Joginder Singh Mann and Dr. Baldeo Singh were
elected Speaker and Deputy Speaker respectively.
On November 22, 1967, 18 members of United
Front Party including Sardar Lachman Singh Gill defected and formed a new
party--Punjab Janta Party. With the support of the Congress a new Ministry was
formed under Sardar Lachman Singh Gill on November 25, 1967. The Legislative
Assembly was then summoned to meet on February 22, 1968. As the budget was to
be considered, the Financial Statement was discussed on 4, 5 and6 March. On the
last day, following some disturbance in the House and consequent disciplinary
action, a Resolution was moved expressing non-confidence in the Speaker. The
House granted leave and then adjourned itself to the following day.
When the Session commenced Sardar Gumam Singh
raised a point of order under rule 112(1) of the Rules of Procedure made under
Art. 208 of the Constitution that there was a contravention of Art. 179(c) in
moving the Resolution. It is not necessary to go into the merits of the point
of order. Suffice it to say that the Speaker declared the motion of
non-confidence to be unconstitutional and deemed not to have been moved.
Another Resolution was then moved which led to rowdy scenes. The (1) "112.
Points of order and decisions thereon.
(1) A point of order relate to the
interpretation or enforcement of these rules or such Articles of the
Constitution as regulate the business of the House and shall raise a question
which is within the cognizance of the Speaker.
(2) A point of order may be raised in
relation to the business before the House at the moment:
Provided that the Speaker may permit a member
to raise a point of order during the interval between the termination of one
item of business and the commencement of another if it relates to maintenance
of order in or arrangement of business before the House.
(3) Subject to conditions referred to in
sub-rules (1) and (2) a member may formulate a point of order and the Speaker
shall decide whether the point raised is a point of order and, if so, give his
decision thereon, which shall be final.
(4) No debate shall be allowed on a point of
order, but the Speaker may, if he thinks fit, hear members before giving his
(5) A point of order is not a point of
(6) A member shall not raise a point of order
:-- (a) to ask for information, or (b) to explain his position, or (c) when a
question on any motion is being put to the House or (d) which may be
hypothetical, or (e) that division bells did not ring or were not heard.
(7) A member may raise a point of order
during a division only on a matter arising out of the division and shall do so
sitting." 483 Speaker purporting to act under Rule 105 (1) adjourned the
Assembly for two months.
A political crisis then arose. The budget had
to be adopted before March 31, 1968 but the House stood adjourned to May 6,
1968. No expenditure in the State could, therefore, be made from April 1, 1968.
The Governor then acted under his constitutional powers. On March 11, 1968 the
Governor prorogued the Assembly under Art. 174(2) (a) (2). The order of the
Governor was caused to be printed in the State Gazette the same day by the
Chief Secretary and copies of the Gazette were dispatched to the Secretary of
the Assembly, the Speaker and other members on the following day. On March 13,
1968 the Governor promulgated Ordinance No. I of 1968 (The Punjab Legislature
Regulation of Procedure in Relation to Financial Business Ordinance, 1968). On
March 14, 1968 the Governor summoned the Legislative Assembly under Art. 174(2)
fixing March 18, 1968 for its sitting and under Art. 175(2)(a) directed the
Assembly to consider:
(i) Supplementary Estimates, 1967-68 (Second
(ii) The Punjab Appropriation Bill, 1968,
relating to the Supplementary Estimates, 1967-68 (Second Installment).
(iii) Demands for Grants as included .in the
Budget Estimates for the year 1968-69.
(1) "105. Power of Speaker to adjourn
the Assembly or suspend sit flag.
In the case of grave disorder in the
Assembly. the Speaker may. if he thinks it necessary to do so adjourn/he
Assembly or suspend any sitting for a time to be named by him." (2)
"Art. 174. Sessions of the Legislature.
prorogation and discussion.
(1) The Governor shall from time to time summon
the House or Houses of the Legislature of the State to meet at such time and
place as he thinks fit. but six months shall not intervene between its last
sitting in one session and the date appointed for their first sitting in the
(2) The Governor may from time to time-- (a)
prorogue the Houses or either House:
(b) (3) "Art. 175. Right of Governor to
address and send messages to the House or Houses.
(2) The Governor may send message to the
House or Houses of the Legislature of the State, whether with respect to a Bill
then pending in the Legislature or otherwise. and a House to which any message
is so sent shall with all convenient despatch consider any matter required by
the message to be taken into consideration." 484 (iv) The Punjab
Appropriation Bill (No. 2) 1968, relating to the Budget Estimates for the year
1968-69." When the Legislative Assembly met it began by considering
certain other matters such as privilege motions, arrangement for Watch and
Ward' Staff. The Speaker then read the Message of the Governor referred to
above. Sardar Gumam Singh rose to move a point of order but the Speaker asked
him to wait and the House attended to some other matters. It granted leave of
absence to one member who was ill and the Speaker named the Panel of Chairmen.
The Ordinance was then placed on the Table of the House. The text of the
Ordinance is given in an appendix to this judgment. It consisted of four
sections. Section 3 provided that the sitting of either House of Legislature was
not to be adjourned without the consent of that House until completion of
financial business, and section 4 provided that the annual financial statement
laid before the House under Art. 202 or the statement showing the estimated
amount of any supplementary or additional expenditure had been laid under Art.
205 was not to lapse by reason. of the prorogation of the House and that it
would not be necessary to relay such statements before the House.
Sardar Gurnam Singh again rose to urge his
point of order. He was reminded that a Resolution to the same effect was to be
brought before the Assembly, but he continued with his point. He stated that
the Ordinance was issued when the Assembly was in Session and the House was
summoned by the Governor before it was prorogued. He elaborated his point of
order on the same lines as was done in the arguments before us and we shall
come to these in due course. A debate, punctuated with uproar in the House,
followed. It appears that the Speaker at first was of the opinion that he had
no power to adjourn the House in view of section 3 of the Ordinance but Sardar
Gumam Singh maintained that he had such power under Rule 105. The Speaker
observed: "Yes, I can adjourn the (House) but what about the Ordinance
?" Sardar Gumam Singh opined that there was no Ordinance. The Speaker then
ruled that the House was prorogued not on 11th March but on the 18th and gave
the ruling in the following words:
"The order by the Governor dated 14-3-
1968 summoning the House is also illegal and void and he had no power to
resummon the House once adjourned under Rule 105 of the Vidhan Sabha Rules
referred to above. Therefore in accordance with my earlier ruling dated 7-3-68
the House stands adjourned for two months from that date.
485 (The Sabha then adjourned) 5.05
p.m." The meeting had lasted 3 hours.
What followed may be extracted from the
"(At 5.05 P.M. the Speaker declared that
the House stand adjourned for two months and left the Chair. The Members
continued to sit in the House. There was uproar and furor in the House. One of
the Han. Members occupied the Speaker's Chair and some members rushed to the
Speaker's dais and stood there. The Hon.
Deputy Speaker came and occupied seat No. 15
in the House to conduct the proceedings. As the seats of the Secretary/other
officers of the Punjab Vidhan Sabha Secretariat and Reporters were also
occupied by the Members of the Opposition, they all occupied seats adjoining
seat No. 15).
(Noise and uproar in the House-voices of
'shame' 'shame' from the Members of the Opposition).
Mr. Deputy Speaker:
As the Speaker had adjourned the House.
(sic) When he had no authority to do so
(Interruptions and Uproar) under the Ordinance promulgated by the Government,
any such adjournment ordered by the Speaker, is, therefore, null and void
(Uproar and renewed noise in the House). The House will now resume
Consideration of business before it and I now call upon the Chief Minister to
move the motion.
(Uproar and furore in the House) (At this
stage, the Speaker's dais was clear and the Hon. Deputy Speaker occupied the
Speaker's Chair at the Dais).
The Chief Minister then moved that the
consideration of the Financial Business be completed within half an hour. There
was uproar in the House. The motion was carried. Next the Estimates of
Expenditure, the Demands for Supplementary grants, the two Appropriation Bills
and the other demands were passed. A Resolution that the Speaker be removed
from office was moved and forwarded to the Leader of the House after granting
leave and the Assembly was adjourned to meet at 2 p.m. on April 5, 1968. The
time taken is not stated but there is reason to think that the limit of 1/2
hour was not exceeded.
The Bills were then transmitted to the
Legislative Council certified by the Deputy Speaker that they were Money Bills.
An 486 objection was raised that the certificate under Art.
199(4)(1) must be signed by the Speaker of
the Legislative Assembly. This was overruled by the Chairman and the Bills were
passed. They were then placed before the Governor with another certificate of
the Deputy Speaker. The Governor signified his assent.
Two writ petitions were then filed in the
Civil Writ Petition (1226/68 was filed by
Shri Satya Pal Dang, M.L.A. against the State of Punjab. the Chief Minister,
the Finance Minister, the Secretary to the Governor, the Secretary Legislative
Assembly and the Deputy Speaker. The second petition (1227/ 68) was filed by 6
members and was directed against those named in the other petition and also joined
the Speaker, the Chairman and Deputy Chairman of the Legislative Council, the
Controller of Printing and Stationery and one Sardar Kirpal Singh, M.L.A. The
arguments in the High Court ranged over a wide field. They were summarized into
eight points by Justice S.B. Capoor which, it is common case, represent the
essence of the matter. Stated briefly, the arguments were that the prorogation
took effect on the 18th March. As a consequence the summoning of the
Legislature before prorogation was invalid. These points go together Since both
the prorogation and resummoning of the Legislature were invalid the House
continued to be in session although adjourned. Since the Legislature was in
"Session", the Ordinance could not be passed and it was a fraud upon
the Constitution. Section 3 of the Ordinance was specially attacked as
unconstitutional. The ruling of the Speaker given on March 18, 1968 was not
open to challenge in courts and the further proceedings in the Assembly were
Even if everything was regular it was in
issue whether the Speaker alone was entitled to endorse a Money Bill and
certify it to the Legislative Council and the Governor and since the
certificates were by the Deputy Speaker, the two Acts were said to be ultra
In the High Courts the Full Bench unanimously
held against the petitioners on the question of the prorogation and resummoning
of the Legislature which were held to be regular and legal. The Full Bench also
held unanimously that the ruling given by the Speaker on the 18th March made
the later proceedings illegal. There was a difference 'on the point that the
certification by the Deputy Speaker in place of the Speaker was valid. The
majority holding that it was not. Similarly a majority of Judges held that (1)
"199. Definition of "Money Bills" (1) .
(4) There shall be endorsed on every Money
Bill when it is transmitted to the Legislative' Council under Article 198, and
when it is presented to the Governor for assent under Article 200, the
certificate of the Speaker of the Legislative Assembly signed by him that it is
a Money Bill." 487 section 3 of the Ordinance was unconstitutional and
invalid and the Full Bench unanimously held the Appropriation Acts to be
unconstitutional. ' In dealing with these appeals we shall follow the sequence
of events and examine the legality and constitutionality of each happening.
That would show that the matter lies in a narrower compass than what has been
made to appear. We begin with the prorogation.
The question here is did the Governor possess
the power to prorogue the Legislature and was his action bad merely because he
was making way for the resummoning of the Legislature after passing an
Ordinance under Art. 213(1) exercising the power (1) "213. Power of
Governor to promulgate Ordinances during recess of Legislature. (1) If at any
time, except when the Legislative Assembly of a State is in session, or where
there is a Legislative Council in a State, except when both Houses of the
Legislature are in session the Governor is satisfied that circumstances exist
which render it necessary for him to take immediate action, he may promulgate
such Ordinances as the circumstances appear to him to require:
Provided that the Governor shall not, without
instructions from the President, promulgate any such Ordinance if :-- (a) a
Bill containing the same provisions would under this Constitution have required
the previous sanction of the President for the introduction thereof into the
Legislature; or (b) he would have deemed it necessary to reserve a Bill
containing the same provisions for the consideration of the President; or (c)
an Act of the Legislature of the State containing the same provisions would
under the Constitution have been invalid unless, having been reserved for the
consideration of the President, it had received the assent of the President.
(2) An Ordinance promulgated under this
Article shall have the same force and effect as an Act of the Legislature of
the State assented to by the Governor, but every such Ordinance :- (a) shall be
laid before the Legislative Assembly of the State, or where there is a
Legislative Council in the State, before both the Houses, and shall cease to
operate at the expiration of six weeks from the reassembly of the Legislature,
or if before the expiration of that period a resolution disapproving it is
passed by the Legislative Assembly and agreed to by the legislative Council, if
any, upon the passing of the resolution or, as the case may be, on the
resolution being agreed to by the Council;
and (b) may be withdrawn at any time by the
Explanation--where the Houses of the
Legislature of a State having a Legislative Council are summoned to reassemble
on different dates, the period of six weeks shall be reckoned from the later of
those dates for the purposes of this clause.
(3) If and so far as an Ordinance under this
article makes any provision which would not be valid if enacted in an Act of
the Legislature of the State assented to by the Governor, it shall be void:
Provided that, for the purposes of the
provisions of this Constitution relating to the effect of an Act of the
Legislature of a State which is repugnant to an Act of Parliament of an
existing law with respect to a matter enumerated in the Concurrent List, an
Ordinance promulgated under this article in pursuance of instructions from the
President shall be deemed to be an Act of the Legislature of the State which
has been reserved for the consideration of the President and assented to by
him." 488 under Art. 109(x) ? The power under Art. 213 'is available to
the Governor when the Assembly is not in session, The position after the 7th
March adjournment of the Assembly was this: The Assembly was in session but it
was put in a state of inaction for 2 months by the adjournment which the
Governor had no power to rescind and the Speaker would apparently not be
prepared to recall. Time was running out and the Budget Session of the Assembly
had to reach a conclusion before March 31. After that date no money could be
drawn from the Consolidated Fund [Art. 266(3)]. The Governor thus had to act
and act quickly to put back the Legislative machinery of the State into life.
Only two courses were open. One was for the Ministers to ask the Speaker under
Rule 16 to recall the Assembly which was, perhaps, attempting the impossible.
The other was to prorogue the Assembly to get rid of the adjournment and then
to resummon the Assembly. The second was not only a reasonable solution but the
one most properly adapted to achieve a constitutional result and it was followed.
The action of the Governor may now be considered.
Article 174(2) which enables the Governor to
prorogue the Legislature does not indicate any restrictions on this power.
Whether a Governor will be justified to do this when the Legislature is in
session and in the midst of its legislative work, is a question that does not
fall for consideration here. When that happens the motives of the Governor may
conceivably be questioned on the ground of an alleged want of good faith and
abuse of constitutional powers. We do not go as far as the learned Judges in Re
Kalyanam v. Veerabhadrayya (A.I.R. 1950 Mad. 243). But that is not the case
here. The bona fides of the Speaker's ruling adjourning the Assembly for so
long as 2 months when the Financial Statement and the budget were on the agenda
and time was running out are more in question than the conduct of the Governor.
No mala fides were attributed to the Governor except to say that he acted in
excess of his powers or in colorable exercise of them. The power being untrammeled
by the Constitution and an emergency having arisen, the action was perfectly
understandable. We shall presently show that the Governor acted not only
properly but in the only constitutional way open to him. There was thus no
abuse of power by him, nor can his motives be des- (1) "209. Regulation by
law of procedure in the Legislature of the State in relation to financial
The Legislature of a State may, for the
purpose of the timely completion of financial business, regulate by law the procedure
of, and the conduct of business in, the House or Houses of the Legislature of
the State in relation to any financial matter or to any Bill for the
appropriation of moneys out of the Consolidated Fund of the State and if and so
far as any provision of any law so made is inconsistent with any rule made by
the House or either House of the Legislature of the State under clause (1) of
article 208 or with any rule or standing order having effect in relation to the
Legislature of the State under clause (2) of that article, such provision shall
prevail." 489 cribed as mala fide as has been said by one of the learned
Judges in the judgment under appeal. It is a matter of regret that such a
conclusion was reached without any plea or material.
Much energy was, therefore, spent in tiffs
Court and in the High Court in an attempt to establish that the prorogation
came into effect either on the 18th or the 16th March at the earliest. This was
not accepted by the High Court and in our opinion rightly. The argument is
based upon rule 7(1) of the Rules of Procedure and Conduct of Business in the
Punjab Legislative Assembly and the fact that the notification of the Secretary
of the Assembly must be deemed to have reached members on the 16th March or
This requires examination Article 174(2)
which enables the Governor to prorogue the Legislature does not indicate the
manner in which the Governor is to make known his orders. He could follow the
well-established practice that such orders are ordinarily made known by a
public notification which means no more than that they are notified in the
official Gazette of the State.
There was such a notification on the 11th
March and prorogation must be held to have taken effect from the date of
publication. It was not necessary that the order must reach each and every
member individually, before it would become effective. Rule 7, which is framed
under Article 208 of the Constitution regulates the procedure of the
Legislature but is not intended to add a clause to Art.
174(2) so as to make it incumbent on the
Governor to wait till the Secretary takes his time and issue the notification
(if at all) and informs members. The words of the seventh rule 'when a session
of the Assembly is prorogued' indicate that there is a prorogation and the rest
of it is intended for communication of the fact to the public and conveying the
order to the members. The communications is by notification in the Gazette. The
action of the Secretary in sending copies of the Gazette to the members is merely
ministerial. Rule 7 cannot be read as a condition precedent for the efficacy of
the Governor's order provided it was duly notified. It is significant that
while Mr. Chagla based his entire case on Rule 7, Mr. Garg did not rely on it
but questioned the very power to prorogue in the circumstances of the case. We
can understand Mr. Garg's argument although we do not accept it, but we find it
difficult to appreciate the stand taken by Mr. Chagla.
We are, therefore,, clearly of the opinion
(which the High Court also unanimously entertained) that the prorogation became
(1) "7. When a session of the assembly is prorogued the Secretary shall
issue a notification in respect thereof in the Gazette and inform the Members.
On prorogation all pending notices subject to the provisions of the
Constitution and these Rules shall lapse." 490 effective on the 11th when
the Governor issued a public notification. The means open to the Governor under
the Constitution are 'public notification' and 'proclamation'.
Article 174 does not state what procedure is
to be followed and rule 7 says that the Secretary to the Assembly shall notify
the order. If the Governor followed the same procedure no exception can be
taken. The argument that only the Secretary to the Assembly can notify the
order is to further refine a point already very fine, and ignores the Business
Rules. Under the business Rules, the Chief Secretary deals with all questions
relating to the Assembly and the Council and the Governor in notifying it in
.the Gazette through the Chief Secretary was acting under the Business Rules.
As a matter of fact copies of the notification were dispatched on the 12th and
presumably reached the Secretary of the Assembly and also the Speaker the same
day. We are bound to take judicial notice of the prorogation and presume the
regularity of these actions which must be interpreted as far as possible so
that the thing done may be valid rather than invalid. This is not the extreme
case, propounded by Mr. Chagla, of a Governor passing an order and keeping 'it
locked in his drawer. It is significant that even in England where prorogation
used to be through a writ or writ patent or a commission under the Great Seal
of the United Kingdom read in the House now a proclamation by the Queen suffices
under the Prorogation Act of 1867. Therefore, the Governor's act became a
public act after the notification. This was on the 11th March 1968.
We are also satisfied that there was no other
motive than to set right the constitutional machinery by the invocation of the
powers conferred expressly on the Governor.
After the prorogation there was no further
curb on the legislative power of the Governor. The power of legislation by
Ordinance is as wide as the power of Legislature of the State. Article 213 (2 )
provides that an ordinance promulgated under that Article has the same force
and effect as an Act of the Legislature of the State assented to by the
Governor except that it must be laid, before the Legislative Assembly of the
State and the Legislative Council (where there is one) and expired after the
expiration of 6 weeks or earlier if it is withdrawn by the Governor or
disapproved by the Legislature of the State. Counsel argued that the power of
the Governor is only to pass a law under the second and third of the
Legislative Lists and not under 'Art. 209. We see no force in this submission
which is not supported by any provision of the Constitution or authority Of
this Court. In fact, the powers of the legislature are expressly indicated in
Art. 209 and the Governor must therefore possess an equal power unless there be
an expression of intention to the contrary in the Constitution. There is no
such expression of intention and none can be implied from Arts. 245 and 246 in
the face of the special provisions of 491 Art. 213(2). The Ordinance was
therefore, validly enacted under the power derived from Arts. 209 and 213.
Article 209 is intended to speed financial
business in the legislatures so that attempts to filibuster, adjourn or
otherwise delay such business may be avoided. If ever there was an occasion
,for the regulation of procedure in the legislature of the State in relation to
the financial business by a law under Art. 209, it was this. The Legislature
could not be allowed to hibernate for 2 months while the financial business
languished and the constitutional machinery and democracy itself were wrecked.
To suggest that the President's rule should
have been imposed instead, it is to suggest a line of action which a party not
in majority would have obviously preferred but it would have cut at the root of
parliamentary government to which our country is fortunately committed. If by
adopting the present course parliamentary government could be restored there
was neither an error of judgment nor a mala fide exercise of power. There was
nothing colourable about it. It was intended to achieve a definite purpose by
using the constitutional power of the Governor. We are therefore quite clear
that the action of prorogation cannot be questioned on any of the grounds
suggested by the respondents.
The resummoning of the Legislature
immediately afterwards was also a step in the right direction. It set up once
again the democratic machinery in the State which had been rudely disturbed by
the action of the Speaker.
Knowing that it would ordinarily take much
time to finish the Financial Business, that time was short and attempt would be
made to delay matters, the Ordinance created a law which Art. 209 enables to be
enacted for the speedy disposal of financial business. The matters were,
therefore, left in the hands of the Legislature with the only restriction that
the Legislature would not adjourn except when a House by a majority desired it.
This respected the democratic right of the Legislature but put down the vagaries
of action calculated to delay the business. The measure was eminently healthy
and as it was also legal the Assembly was bound by the law thus enacted.
Therefore, the next attempt was to challenge
s. 3 of the Ordinance (see appendix). The learned Chief Justice upheld the
validity of the section but he was overruled by his four colleagues. We are in
entire agreement with the view expressed by the Chief Justice. What is the
complaint here ? It is argued that s. 3 of the Ordinance conflicts with the
Rules of Procedure particularly 492 Rule 105 and Art. 189(4)(1). Article 189(4)
is a provision of the Constitution and_ can never be abrogated by an Ordinance
or even a law passed by the Legislature and so there is no repugnancy Article
189(4) continued to operate in situations contemplated by it. Rule 105 confer
two powers, when, on grave disorder arising in the Assembly, the work cannot be
carried on. One is a power to suspend for a time the sitting of the House and
the other is to adjourn the House. What the Ordinance did was to put out of
action the power to adjourn the session of the Legislature. The inconsistency
between Rule 105 in so far as it concerned such adjournment was to be resolved
in favour of the Ordinance because the latter part of Art. 209 itself provides
that in cases of repugnancy between the rules of procedure framed under Art.
208 and the law made under Art.
209, the latter provision shall prevail.
Article 209 gave full authority to s. 3 of the Ordinance and it was not ultra
vires It is argued that we cannot read down the provisions of section 3 of the
Ordinance to make room for the application of Art. 189(4) and Rule 105 in
regard to quorum and suspension of business respectively. Reference is made to
the case of Diamond Sugar Mills Ltd. v.U.P.(1) where the expression 'local
area' was not read down to make it accord with the Constitution. That case was
concerned with excess of legislative power under an entry. The general words
were read as they were and pointed to an excessive power being conferred. In
Romesh Thappar v. The State of Madras(2) the law offended Fundamental Rights
and there was no escape from the operation of Art. 13 of the Constitution when
there was no room for severability. In Seth Bikhraj Jaipuria v. Union of
India(3) the capacity to contract was involved and that case hardly applies. In
Kameshwar Prasad and Others v. The State of Bihar and Another(4) there was
difficulty in the way of reading Rule 4-A of the Bihar Government Servants'
Conduct Rules 1956 because of its general words and hence the whole rule was
struck down. We can read down section 3 of the Ordinance because the Ordinance
could never provide for want of quorum which is a constitutional requirement.
Rule 105 gets out of the way by the operation
of Art. 209.
It depends always on how far the provision of
a law is intended to go. There is a canon of construction that the language of
a statute, even if it is prima facie wide, is to be understood as not
attempting something (1) "189 voting in Houses, power of Houses to act
notwithstanding vacancies and quorum.
(4) If at any time during a meeting of the
Legislative Assembly or the Legislative Council of a State there is no .quorum,
it shall be the duty of the Speaker or Chairman, or person acting as such,
either to adjourn the House or to suspend the meeting until there is a
quorum." (1)  3 S.C.R. 242.
(2)  S.C.R. 594.
(3)  2 S.C.R. 880.
(4)  Supp. 3 S.C.R. 369 493 beyond the
competence of the legislative body. In such a case the. overriding law must
have its play. Article 189(4) was outside the law-making power of the Governor
and his Ordinance must be read to harmonize with it. Similarly, the power of
adjournment was curtailed but not the power to suspend business. Even an
adjournment was possible provided the House agreed. We see, no force in the
argument that s.
3 is ultra vires.
The adjournment of the Assembly on 18th March
by the, Speaker is next presented as a valid and binding ruling. A word may be
said here about what the Speaker decided. The Speaker in his ruling of the 18th
based himself on the fact that in his opinion the order proroguing the Assembly
on the 11 th March was illegal and void. Therefore the Governor had no power to
resummon on the 14th the Assembly which stood adjourned for 2 months under Rule
105. It appears from the proceedings that the Speaker was of the opinion that
the Legislature was prorogued on the 18th and not the 11th. We have shown above
that the Legislature was prorogued not on the 18th but on the 11th and the
resummoning of the Legislature on the 14th after the Ordinance was promulgated
on the 13th was perfectly valid.
His ruling, therefore, was based on wrong
assumption. But can his ruling be called in question ? Our answer is in the
affirmative. On the 18th the Speaker was faced by the Ordinance. That
Ordinance, as we have shown above, was a valid law binding on the Assembly
(including the Speaker) by virtue of Art. 209. The Speaker was, therefore,
powerless and his adjournment of the session without taking the mandate of the
Assembly by majority as required by s. 3 of the Ordinance was null and void and
of no effect. The proceedings clearly show that the Speaker himself was
reluctant to adjourn the House till he was prompted by Sardar Gurnam Singh. He
doubted his own powers. The Speaker did not attempt to order a fresh
adjournment but only ruled that his earlier adjournment stood. Whether the
Speaker adjourned the Assembly afresh or declared that the former adjournment
continued to operate makes no difference.
The former adjournment had come to an end by
a valid prorogation and the fresh adjournment was null and void.
The House transacted other business showing
that the prorogation was considered valid. If this was so the session had to
continue unless adjourned by the House by majority.
Reference was made to Rule 112 which says
that a point of order once raised must be decided by the Speaker and his
decision thereon is final. It is thus urged that whatever the merits of the
Speaker's ruling it must be treated as final. This is a claim which is
unfounded. Points of order can only be raised in relation to the interpretation
and enforcement of the rules and the interpretation of the Articles of the
Constitution regulating the business of the House and the question' which is to
be decided by the Speaker must be within his cognizance (Rule 112(1). The
finality of the ruling applies subject to this condition (Rule 112(3). Now the
exact point of order concerned the validity of the Ordinance. The Speaker did
not attempt to interpret Arts. 208, 209 and 213. He did not confine his ruling
to matters within his cognizance. He asserted himself against a law which was
binding on him. If the Ordinance was to be questioned this was not the method..
A resolution had to be passed under Art. 213
( 2 ) ( a ) disapproving it. In fact he was told that a resolution was to be
made. Perhaps the Speaker was not sure that a such resolution would be passed.
Democratic process and parliamentary practice demanded that the Speaker should
have waited for a resolution to be moved for the consideration of the Assembly.
If he was at all sure that the majority was in favour of disapproving the
Ordinance he would undoubtedly have waited. Not being sure, he proceeded to
nullify the Ordinance by a ruling which he was not competent to give.
Therefore, his ruling was only not final, but
utterly null and void and of no effect.
It is significant that the Deputy Speaker on
occupying the Chair declared on the validity of the Ordinance in words which
may be quoted again:
"Mr. Deputy Speaker:
As the Speaker had adjourned the House, when
he had no authority to do so (Interruptions and Uproar) under the Ordinance
promulgated by the Government, (sic) any such adjournment ordered by the
Speaker, is, therefore, null and void (Uproar and renewed noise in the House).
The House will now resume consideration of business before it and I now call
upon the Chief Minister to move the motion.
(Uproar and furore in the House) (At this
stage, the Speaker's dais was clear and the Hon. Deputy Speaker occupied the
Speaker's Chair at the dais).
This ruling had more content under Rule 112
than the ruling previously given. It was also eminently correct. There was no
reason why it should not prevail when the other ruling was null. and void. The
Assembly kept sitting since (as is. quite apparent) the members too thought
that the ruling of the Speaker was to be ignored. All the proceedings were
conducted without demur even from the opposition. One is tempted to think that
the Speaker was not sure of his own position in a House in which he had
probably lost a sustaining _majority. But even if the most liberal view of
the-action of the Speaker is taken, one is, forced 495 to the conclusion that
he acted contrary to law and the injunction of the Constitution that the law
made under Art.
209 is to prevail over the rules of
procedure. We regret to record this conclusion which we would have willingly
avoided but for some arguments advanced on the lines indicated although somewhat
hesitatingly by the counsel representing the Speaker. Before tall claims are
made which cannot stand against law and the Constitution, those that make them
should reasonably be sure that they are right.
The necessary result of our findings is that
the continuance of the proceedings under the Deputy Speaker was valid
complying, as it did with the law promulgated by the Governor. Each item on the
agenda was properly passed and there was no objection either during the
proceedings in the House or in the argument before us regarding the regularity
of the action. We, therefore, hold that the financial business transacted
before the Assembly had legal foundation.
This brings us to the last point which is
that the certificate of the Deputy Speaker under Art. 199 was of no effect.
That certificate was issued under the fourth clause of that article. The
argument is that the provisions of this clause are mandatory and only the
Speaker of the Legislative Assembly should sign the Money Bill. To this there
are many replies. The Speaker was not present when the Bills were passed. Under
Art. 180(2) (1) the Deputy Speaker acts as the Speaker when the Speaker is
absent. Thus the Deputy Speaker was validly acting as the Speaker of the
Assembly which continued to be in session. No doubt Art.
199 mentions only the Speaker of the
Legislative Assembly but the question remains still whether the Deputy Speaker
could not certify the Money Bills effectively. Counsel for the answering
respondents drew attention to the difference in the language of the two
clauses. In the first clause the Deputy Speaker or such member of the Assembly
as the Governor may appoint for the purpose, performs the duties of the office
of the Speaker, when the office is vacant, while in the second the Deputy
Speaker merely acts as Speaker during the absence of the Speaker from a sitting
of the (1) "180. Power of the Deputy Speaker or other person to perform
the duties of the office of or to act as, Speaker.
(1) (2) During the absence of the Speaker
from any sitting of the Assembly the Deputy Speaker or, if he is also absent,
such person as may be determined by the rules of procedure of the Assembly. or,
if no such person is present, such other person as may be determined by the
Assembly, shall act as Speaker." 496 Assembly. They suggest that in the
latter case the Deputy Speaker's powers come to an end as soon as the sitting
is over and the mandatory language of Article 199(4) compelled that the
certificate of the Speaker ought to have been obtained.
The short question here is whether the
provisions of Art. 199 (4) must be read as imperative or merely directory.
The distinction between a mandatory provision
of law and that which is merely directory is this that in a mandatory provision
there is an implied prohibition to do the act in any other manner while in a
directory provision substantial compliance is considered sufficient.
There are several tests to determine when the
provision may be treated as mandatory and when not and they have been called
from books and set down by Subbarao, J. (as he then was) in The State of Uttar
Pradesh and others v. Babu Ram Upadhya:(1) and earlier by Venkatarama lyer, J.
in State of Bombay v.R.M.D. Chamarbaugwala(2). For our purpose it is necessary
to emphasise only one distinction. In those cases Where strict compliance is
indicated to be a condition precedent to the validity of the act itself, the
neglect to perform it as indicated is fatal. But in cases where although a
public duty is imposed and the manner of performance is also indicated in
imperative language, the provision is usually regarded as merely directory when
general injustice or inconvenience results to others and they have no control
over those exercising the duty.
Judged from this test the provisions of Art. 199(4)
cannot be viewed as mandatory but only as directory. If the. Constitution saw
the necessity of providing a Deputy Speaker to act as the Speaker during the
latter's absence or to perform the office of the Speaker when the office of the
Speaker is vacant, it stands to reason that the Constitution could never have
reposed a power of mere certification absolutely in the Speaker and the Speaker
alone. The happenings in the Assembly lend support to this inference.
It is reasonable to think that the Speaker in
his then mood might have declined to certify and a second impasse would have
ensued. A similar situation may arise not because of intransigence but because
of illness or absence. The inconvenience to the State and the public at large
is avoided by holding the provision to be directory and not imperative.
It might be mentioned that this Court has on
occasions read apparently imperative provisions as directory, only.
In the case of State of U.P.v. Manbodhan Lal
Srivastava(3) the provisions of (1)  2 S.C.R. 679, 710.
(2)  S.C.R. 874, 950.
(3)  S.C.R. 533.
497 Arts. 311 ( 2 ) and 3 20 ( 1 ) ( c ) were
read as directory notwithstanding the mandatory language. Further it is
interesting to note that the Parliament Act of 1911 in England has an identical
provision enjoining. certification by the Speaker. However May in his
'Parliamentary Practice' gives numerous instances of Money Bills (from 1914
onwards) certified by the Deputy Speaker (see p. 842).
Further again, there is Article 212 clause
(1) which provides that the validity of any proceeding in the Legislature of a
State shall not be called in question on the ground of any alleged irregularity
of procedure. This clause was invoked in respect of a Money Bill in Patna Zilla
Brick Owners Association and others v. State of Bihar and others(1) following a
case of this Court in M/s. Mangalore Ganesh Bedi Works v. The State of Mysore
& Another(2). We are entitled to rely upon this provision. Our conclusion
gets strength from another fact. There is no suggestion even that the
Appropriation Bills were not Money Bills or included any matter other than that
provided in Article 199 or were not passed by the Assembly. It is 'also
significant that the Speaker wrote to the Chairman of the Legislative Council
that there was no certificate by him and that he had adjourned the Assembly
when the Bills were adopted but the Legislative Council in spite of objection
considered and passed the two, Bills and the Governor assented to them. We are
of opinion that the two Bills were duly certified.
This concludes the whole case and the-events
on which it is based. Mr. Garg contended for a larger issue. He said that the
Legislature should not be at the mercy of the Governor and the absolute field
of action open to the Legislature and the Speaker would be unreasonably cut
down and thus lead to assumption of absolute powers by Governors.
We do not entertain any such apprehensions.
The situation created in the State of Punjab was unique and was reminiscent of
happenings in the age of the Stuarts. The action of the Governor appears to be
drastic. It was, however, constitutional and resulted from a desire to set
right a desperate situation. As Bacon once said, no remedies cause so much pain
as those which are efficacious.
For the reasons given above we allow the
appeals, set aside the judgment of the High Court and order the dismissal of
the two petitions with costs.
(1) A.I.R. 3963 Pat. 16.
(2)  Supp. 1 S.C.R. 275.
498 APPENDIX "PUNJAB ORDINANCE NO. 1 OF
2. Definitions. In this Ordinance :- (a)
"article" means an article of the Constitution of India;
(2) "Financial business" means any
business relating to any of the financial matter referred to in articles 202
to'206 (both inclusive) including Bills for appropriation of moneys out of the
Consolidated Fund of State.
3. Sitting of either House of Legislature not
to be adjourned without consent of that House until completion of financial
Notwithstanding anything contained in any
rules made, or rules or standing order having effect, under Article 208, when
any financial business is pending or is to be transacted in a House of the
Legislature of the State of Punjab during any session thereof, then :- (a)
Until the completion of such business during that session a sitting of that
House shall not be adjourned unless a motion of that effect is passed by a
majority of the members of that House present and voting;
(b) Any adjournment of that House in
contravention of the provisions of clause (a) shall be null and void and be of
(c) The Leader of the House, may, for the
timely completion of the Financial business, move a motion specifying the time
within which the consideration of such business shall be completed and if the
motion is adopted (whether with or without modification) by a majority of the
Members of the House present and voting, consideration of the business shall be
completed within the time specified in the motion as so adopted and for that
purpose, the Rules of Procedure and Conduct of Business (including the standing
orders, if any) relating to that House shall have effect subject to the
modifications thereof, if any, specified in the motion. and any such motion may
be moved without giving any prior notice thereof and shall, unless the majority
of the members of the House present and voting determine otherwise, be taken
into consideration and voted upon on the same day on which it is moved.
4. Financial statements not to lapse.
For the removal of the doubts it is hereby
declared that if an annual financial statement has been laid before a House
under Article 202 or a statement showing the estimated amount of any
supplementary or additional expenditure has been laid under article 205 such
statement shall not be necessary to relay such statement before the House.
D.C. PAVATE Governor of Punjab.