Babu
Rao Allias P.B. Samant Vs. Union of India & Ors [1987] INSC 383 (17
December 1987)
VENKATARAMIAH,
E.S. (J) VENKATARAMIAH, E.S. (J) SINGH, K.N. (J)
CITATION:
1988 AIR 440 1988 SCR (2) 431 1988 SCC Supl. 401 JT 1987 (4) 672 1987 SCALE
(2)1322
ACT:
Constitution
of India, 1950: Articles 83, 118, 352, 353, 364 and 366-Proclamations of
Emergency dated December 3, 1971 and June 25, 1975-Whether ultra
vires-Publishing of Proclamations in official Gazette-Whether a mode of
publication
HEADNOTE:
%
Rules of Procedure and Conduct of Business in Lok Sabha: Rules 260, 379 and
382-Non-publication of resolutions-Whether resolutions ineffective-Publication
in Parliamentary Debates even after delay-Adequate publication.
House
of the People (Extension of Duration) Act, 1976:
Whether
ultra vires. Finance Act, 1976: Validity of.
Indian
Evidence Act, 1872: S. 57-Proceedings of Parliament-Court to take judicial
notice.
The
petitioner, an assessee under the Income Tax Act and Wealth Tax Act during the
assessment year 1976-77 and liable to pay income tax and wealth tax in
accordance with the rates prescribed by the Finance Act, 1976, which was passed
by the Lok Sabha during its extended period under the provisions of the House
of the People (Extension of duration) Act, 1976, filed a writ petition before
this Court, challenging the vires of the two Proclamations of Emergency issued
by the President on 3.12.1971 and 26.6.1975 and also of the House of the People
(Extension of Duration) Act, 1976 and the Finance Act, 1976 contending that the
duration of the House of People would have been validly extended only when a
Proclamation of Emergency was in force under the proviso to cl. (2) of Art. 83
of the Constitution and since the two Proclamations of Emergency in question were
either ultra vires the Constitution or had ceased to be in operation by the
time the House of the People (Extension of Duration) Act, 1976 was passed by
Parliament, that Act had no effect and, consequently all Acts passed by the
House of the People during the extended period, including the Finance Act, 1976
432 were ultra vires the Constitution, and that even though the said
proclamations had been validly issued, the proclamation dated 3rd December,
1971 and 25th June, 1975 had ceased to be in operation on 3rd February, 1972
and 26th August, 1975 respectively because the Resolutions passed by the two
Houses of Parliament approving the said Proclamations of Emergency as required
by cl. (2) of Art. 352 of the Constitutions it stood during the relevant time had
not been published in the official Gazette of the Government of India.
The
petition was opposed by the respondent-Union of India contending that the two
Proclamations had been duly issued by the President and approved by the
Resolutions of the two Houses of Parliament as required by law and that
actually the Proclamations of 3rd December 1971 and June 25, 1975 had been
revoked by the Vice-President acting as the President by the Proclamations
dated 27th March, 1977 and 21st March, 1977 respectively, that in the month of
February, 1976 when the House of the People (Extension of Duration) Act, 1976
was passed by Parliament both the Proclamations of emergency were in force and,
therefore, Parliament was entitled to extend the period of the House of the People
for a period not exceeding one year at a time, that the Finance Act, 1976
passed duly in the period so extended had been, therefore, validly passed and
that publication of the Resolutions was not necessary and, in any event, since
they had been published in the Lok Sabha and Rajya Sabha Debates which were
published under the authority of the Speaker of the House of the People and the
Chairman of the Rajya Sabha respectively, the Proclamations of Emergency
remained in force until they were duly revoked.
Dismissing
the writ petition, ^
HELD:
1. The two Proclamations of Emergency were kept in force by virtue of the
resolutions passed by the Houses of Parliament until they were duly revoked by
the two Proclamations which were issued by the Vice-President acting as
President of India in the year 1977. Since the two Proclamations of Emergency
were in force when the House of the People (Extension of Duration) Act, 1976
was passed, its validity cannot be questioned. [455D-E] The Lok Sabha passed
the Finance Act, 1976 during the extended period of its duration and,
therefore, the validity of Finance Act, 1976 also cannot be questioned. [455E]
2.
Article 352 of the Constitution does not prescribe that a 433 Proclamation of
Emergency should be published in the official Gazette. A Wherever the
Constitution expressly requires a certain notification to be published in the
official Gazette, it has stated that the said notification shall be published
in the form of a public notification.
[444H;
445C] A Proclamation of Emergency, being a very important event affecting
public life, has also to be published in any manner known to modern world and
the publication in the official Gazette is one such mode. If the Constitution
requires that a particular mode of publication is necessary then such mode must
be followed, but if there is no mode of publication prescribed by the
Constitution, then it must be considered that the Constitution has left the
method of publication to the authority issuing the proclamation in order t.,
make it known to the members of the public. [445G- H; 446A-B]
3.1
In the instant case, the Proclamations of Emergency have been published in the
official Gazette.[446B] In the Constitution and in the Rules of Procedure of
the Houses of Parliament and of the State Legislatures there are several
provisions which provide for resolutions being passed by the Houses of
Parliament or the Houses of State legislatures. They are not required to be
published in the official Gazette, even though in some cases they are published,
say, where a certain law is adopted under Art.
252
or a member is removed on the ground of privilege etc.
They
would not be treated as ineffective merely because they are not published in
the official Gazette. They are all, however, published in the Reports of the
Houses of Parliament and of the Houses of the State Legislature within a
reasonable time. [446C; 447B-C]
3.2
The Lok Sabha Debates and the Rajya Sabha Debates are the journals or the
reports of the two Houses of Parliament which are printed and published by
them. The Court has to take judicial notice of the proceedings of both the
Houses of Parliament under s. 57 of the Indian evidence Act, 1872 and it is
expected to treat the proceedings of the two Houses of Parliament as proved on
the production of the copies of the journals or the reports containing the
proceedings of the two Houses of Parliament which are published by them.[450E-F
]
3.3
What is essential is that the resolutions approving the Proclamation of
Emergency should be passed within the period of two months. A little delay in
publishing the proceedings would not affect the validity of there solutions.
[454B-C] 434
3.4
The reports of the proceedings of Parliament and the State Legislatures are
widely circulated. The newspapers, radio and the television are also the other
modern means which give publicity to all Acts and Resolutions of Parliament and
the Legislatures of the States. The publication in the Parliamentary Debates,
though after some short delay is adequate publication of the resolutions of
Parliament as there is no rule which requires that the resolutions should be
published in the official Gazette. Hence, mere non-publication of the
resolutions approving the Proclamations of Emergency in the offlcial Gazette
did not make them ineffective. [454G-H; 455A-B] In the instant case, the
resolutions of the Lok Sabha, and the Rajya Sabha approving the two resolutions
have been duly published in the official reports of the two Houses.
[455B-C]
Waman Rao & Ors. Etc. Etc. v. Union of India & Ors., [1981] 2 S.C.R. 1;
Harla v. The State of Rajasthan, [1952] S.C.R. 110; State of Punjab v. Sat Pal
Dang & Ors., [1969] 1 S.C.R. 478 and Mharendu Dutt Majumdar v. The King
Emperor, [1942[ F.C.R. 38, referred to.
Original
Jurisdiction:
Writ Petition No. 63 of 1977.
(Under
Article 32 of the Constitution of India). Petitioner-in-person.
Kuldeep
Singh, Additional Solicitor General, B.B. Ahuja, Ms. A. Subhashini, Ms. J. Wad
and C.V. Subba Rao for the Respondents.
The
Judgment of the Court was delivered by VENKATARAMIAH, J. Shri Baburao alias
P.B. Samant, the petitioner herein, who has argued this case in person with
great clarity and precision has raised the following contentions in this
petition.
(1)
The Proclamation of Emergency issued on 3.12.1971 by the President of India was
either ultra vires the Constitution or had ceased to be in operation on
4.2.1972.
(2)
The Proclamation of Emergency dated 25.6.1975 issued by the President of India
on 26.6.1975 was either ultra vires the Constitution or had ceased to be in
operation on 26.8.1975;
(3)
The House of the People (Extension of Duration) Act, 1976 (No. 30 of 1976) is
ultra vires the Constitution;
and
435 (4) The Finance Act, 1976 (66 of 1976) is ultra vires the Constitution.
Although
the petitioner had also challenged section 13 of the Constitution (42nd
Amendment) Act, 1976 and clause (c) of section 3 of the Constitution (24th
Amendment) Act, 1971 in the petition he did not press these two contentions at
the hearing of the petition The petitioner was an assessee under the Income-tax
Act and Wealth Tax Act during the assessment year 1976-77 and was liable to pay
income-tax and Wealth tax in accordance with the rates prescribed by the
Finance Act, 1976 which was passed by the Lok Sabha during its extended period
which was extended under the provisions of the House of the People (Extension
of Duration) Act, 1976 (Act 30 of 1976), after the expiry of five years from
the date appointed for its first meeting. The contention of the petitioner is
that the duration of the House of the People could have been validly extended
only when a Proclamation of Emergency was in force under the proviso to clause
(2) of Article 83 of the Constitution and since the two Proclamations of
Emergency dated 3rd December, 1971 and 25th June, 1975 were either ultra vires
the Constitution or had ceased to be in operation by the time the House of the
People (Extension of Duration) Act, 1976 (Act 30 of 1976) was passed by
Parliament, the House of the People (Extension of Duration) Act, 1976 (Act 30
of 1976) had no effect and consequently all Acts passed by the House of the
People during the extended period including the Finance Act, 1976 were ultra
vires the Constitution. He further submitted that even though the said
Proclamations had been validly issued, the Proclamation of Emergency dated 3rd
December, 1971 had ceased to be in operation on 3rd February, 1972 and the
Proclamation of emergency dated 25th June, 1975 which was issued on 26th June, 1975
had ceased to be in operation by 26th August, 1975 because the resolutions
passed by the two Houses of Parliament approving the said Proclamations of
Emergency as required by clause (2) of Article 352 of the Constitution as it
stood during the relevant time had not been published in the official Gazette
of the Government of India.
The
petition is opposed by the Union of India. The Union of India has contended
that the two Proclamations of Emergency had been duly issued by the President
and approved by the resolutions of two Houses of Parliament as required by law
and that actually the proclamation of Emergency of 3rd December, 1971 had been
revoked by the Vice-President acting as the President by the Proclamation 436
dated 27th March, 1977 and the Proclamation of Emergency dated June 25th, 1975
had been revoked by him by the Proclamation dated 21st March, 1977. In the
month of February, 1976 when the House of the People (Extension of Duration)
Act, 1976 (Act 30 of 1976) was passed by Parliament both the Proclamations of
Emergency were in force and therefore Parliament was entitled to extend the
period of the House of the People for a period not exceeding one year at a
time. The Finance Act, 1976 passed during the period so extended had been,
therefore, validly passed. It was further pleaded by the Union of India that
the publication of the resolutions was not necessary and that in any event
since they had been published in the Lok Sabha Debates and the Rajya Sabha
Debates which were published under the authority of the Speaker of the House of
the People and the Chairman of the Rajya Sabha respectively the Proclamations
of Emergency remained in force until they were duly revoked.
Article
352 of the Constitution as it stood at the relevant time read as follows:
"352
(1) If the President is satisfied that a grave emergency exists whereby the
security of India or of any part of the territory thereof is threatened,
whether by war or external aggression or internal disturbance, he may, by
Proclamation, make a declaration to that effect.
(2)
A Proclamation issued under clause (1)- (a) may be revoked by a subsequent
Proclamation;
(b)
shall be laid before each House of Parliament;
(c)
shall cease to operate at the expiration of two months unless before the expiration
of that period it has been approved by resolution of both Houses of Parliament:
Provided
that if any such Proclamation is issued at a time when the House of the People
has been dissolved or the dissolution of the House of the People takes place
during the period of two months referred to in sub-clause (c), and if a
resolution approving the Proclamation has been passed by the council of States,
but no resolution with respect to such Proclamation has been passed by the
House of the People before the expiration of that period, the 437 Proclamation
shall cease to operate at the expiration of A thirty days from the date on
which the House of the People first sits after its reconstitution unless before
the expiration of the said period of thirty days a resolution approving the
Proclamation has been also passed by the House of People.
(3)
A Proclamation of Emergency declaring that the security of India or of any part
of the territory thereof is threatened by war or by external aggression or by
internal disturbance may be made before the actual occurrence of war or of any
such aggression or disturbance if the President is satisfied that there is
imminent danger thereof." Clause (1) of Article 352 of the Constitution
provided that if the President was satisfied that a grave emergency existed
whereby the security of India or of any part of the territory thereof was
threatened whether by war or external aggression or internal disturbance, he
might by Proclamation make a declaration to that effect. The Proclamation
issued under clause (1) of Article 352 of the Constitution could be revoked by
a subsequent Proclamation. It was required to be laid before each House of
Parliament and that the Proclamation would cease to operate at the expiration
of two months unless before the expiration of that period it was approved by
resolutions of both Houses of Parliament.
On
December 3, 1971 when India was attacked by Pakistan the President issued a
Proclamation under clause (1) of Article 352 as he was satisfied that the
security of India had been threatened by external aggression. The said
Proclamation was published in the Official Gazette on the same date. It reads
thus:
Ministry
of Home Affairs Notification New Delhi, 3rd December, 1971 G C.S.R. 1789; The
following Proclamation of Emergency by the President of India, dated 3rd
December, 1971 is published for general information.
Proclamation
of Emergency 438 In exercise of powers conferred by clause (1) of Article 352
of the Constitution, I, V.V. Giri, President of India, by this Proclamation
declare that a grave emergency exists whereby the security of India is
threatened by external aggression.
New
Delhi, 3rd December, 1971 sd/- V.V. Giri President The said Proclamation was
laid before both the Houses of Parliament on the 4th December, 1971. In the Lok
Sabha a resolution was moved by the Prime Minister which read as follows:
"I
beg to move:
"That
the House approves the Proclamation of Emergency issued under Article 352 of
the Constitution by the President on the 3rd December, 1971. " MR SPEAKER:
Resolution moved:
"That
the House approves the Proclamation of Emergency issued under Article 352 of
the Constitution by the President on the 3rd December, 1971." (See Lok
Sabha Debates dated December 4, 1971 Column 4).
After
some discussion in the House the resolution was carried unanimously and it was
adopted. (See Lok Sabha Debates dated December 4, 1971 column 37). Similarly a
resolution was adopted by the Rajya Sabha approving the said Proclamation of
Emergency. (See Rajya Sabha Debates dated December 4, 1971 column 46). The said
resolutions of the Houses of Parliament were no doubt not published in the
official Gazette. The above Proclamation of Emergency was revoked by the
Vice-President acting as President on the 27th March, 1977 by a Proclamation
which read thus:
439
"MINSTRY OF HOME AFFAIRS NOTIFICATION New Delhi, the 27th March, 1977
G.S.R. 132 (E)-The following Proclamation made by the Vice-President acting as
President of India is published for general information:
PROCLAMATION
In exercise of the powers conferred by sub- clause (a) of clause (2) of Article
352 of the Constitution, I, Basappa Danappa Jatti, Vice- President acting as
President of India, hereby revoke the Proclamation of Emergency issued under
clause (1) of that article on the 3rd of December.
1971
and published with the notification of the Government of India in the Ministry
of Home Affairs No. G.S.R. 1789, dated the 3rd December, 1971.
New
Delhi, the 27th March, 1977 sd/- B.D.Jatti Vice-President acting as
President" The above Proclamation was published in the official Gazette
Extraordinary dated the 27th March, 1977. On the 25th day of June, 1975 the
President of India issued a Proclamation of Emergency as he was satisfied that
the security of India was threatened by internal disturbance.
That
Proclamation was published under a notification dated 26th June, 1975 in the
official Gazette. It read thus:
"MINISTRY
OF HOME AFFAIRS NOTIFICATION New Delhi, the 26th June, 1975 G.S.R. 353 (B) 440
The following Proclamation of Emergency by the President of India, dated the
25th June, 1975, is published for general information:
PROCLAMATION
OF EMERGENCY In exercise of the powers conferred by clause (1) of Article 352
of the Constitution, I, Fakkhruddin Ali Ahmed, President of India, by this
Proclamation declare that a grave emergency exists whereby the security of
India is threatened by internal disturbance.
New
Delhi, the 26th June, 1975 F.A. Ahmed, President No
.11/16013/1/75-S&P(D-11) S.L. Khurana, Secy." A resolution was moved
in the Lok Sabha on July 21, 1975 seeking the approval of the Lok Sabha to the
Proclamation of Emergency dated the 25th June, 1975 and also the order of the
President dated 29th June, 1975 made in exercise of the powers conferred by
sub-clause (b) of clause (4) of Article 352 of the Constitution (as it stood
then) as applying to the State of Jammu and Kashmir. The Proclamation of
Emergency was also laid on the table of the Lok Sabha.
That
resolution was adopted by the Lok Sabha on July 23, 1975. (See Lok Sabha
Debates dated July 23, 1975, column 427). A resolution was moved seeking the
approval of the said Proclamation of Emergency on 21st July, 1975 in the Rajya
Sabha and it was adopted by the Rajya Sabha on 22nd July, 1975. (See Rajya
Sabha Debates dated July 22, 1975 column 124). The resolution of the Lok Sabha
and the resolution of the Rajya Sabha approving the Proclamation dated 25th
June, 1975 were not published in the official Gazette. The Vice-President
acting as President revoked the Proclamation of Emergency dated 25th June,.
1975 by another Proclamation dated 21st March, 1977 which reads thus:
"MINISTRY
OF HOME AFFAIRS NOTIFICATION XXXXXXXXXX G.S.R. 117/E-The following Proclamation
made by the 441 Vice-President acting as President of India is published for A
general information:
Proclamation
In exercise of the powers conferred by sub- clause (a) of clause (2) of article
352 of the Constitution, I, Basappa Danappa Jatti, Vice- President acting as
President of India, hereby revoke the Proclamation of Emergency issued under
clause (1) of that article on the 25th June, 1975 and published with the
notification of the Govt.
Of
India in the Ministry of Home Affairs No. GSR 353(b) dated the 26th June, 1975.
B.D.Jatti
Vice-President acting as President New Delhi, the 21st March, 1977."
Article 83(2) of the Constitution during the relevant time, that is, before the
42nd Amendment Act of 1976 read as follows:
"83.
(1) .........................
(2)
The House of the People, unless sooner dissolved, shall continue for five years
from the date appointed for its first meeting and no longer and the expiration
of the said period of five years shall operate as a dissolution of the House:
Provided
that the said period may, while a Proclamation, of Emergency is in operation,
be extended by Parliament by law for a period not exceeding one year at a time
and not extending in any case beyond a period of six months after the
proclamation has ceased to operate." As the period of five years from the
date appointed for its first meeting of the then existing House of the People
was about to come to a close Parliament enacted the House of the People
(Extension of Duration) Act, 1976 (Act 30 of 1976) which received the assent of
the President on the 16th February, 1976. Section 2 of that Act read thus:
442
"2. Extension of duration of the present House of the People. The period
of five years (being the period for which the House of the People may, under
clause (2) of article 83 of the Constitution, continue from the date appointed
for its first meeting) in relation to the present House of the People shall,
while the Proclamation of Emergency issued on the 3rd day of December, 1971 and
on the 25th day of June, 1975 are both in operation, be extended for a period
of one year:
Provided
that if both or either of the said Proclamations cease or ceases to operate
before the expiration of the said period of one year.
The
Finance Act, 1976 was passed by the Lok Sabha after its period was extended as
stated above and by the Rajya Sabha in the early part of the year 1976 and it
received the assent of the President on the 27th May, 1976. Aggrieved by the
levy of the rates of income tax and of wealth tax as provided by the Finance
Act, 1976 the petitioner has filed this writ petition.
Two
important questions which arise for consideration in this case are (i) whether
the two Proclamations of Emergency were validly issued or not? and (ii) whether
each of the said Proclamations had ceased to be in force at the expiration of
two months from the date on which each of them was issued as the resolutions of
the Houses of Parliament approving each of them had not been published in the
official Gazette. In Waman Rao & ors. Etc. Etc. v. Union of India &
Ors.,[1981]2 S.C.R.1 the validity of the 40th and the 42nd Constitutional
Amendments had been questioned on similar grounds. This Court while it left
open the question whether the issuance of the Proclamations of emergency raised
a justiciable issue, on the basis of the material placed before it came to the
conclusion that they had been duly issued. Chandrachud, CJ observed in the
course of his judgment in Waman Rao's case (supra) at page 45 thus:
"Thus,
in the first place, we are not disposed to decide the question as to whether
the issuance of a proclamation of emergency raises a justiciable issue.
Secondly, assuming it does, it is not possible in the present state of record
to answer that issue one way or the other. And, lastly, whether there was
justification for continuing the state of emergency after the cessation of
hostilities with 443 Pakistan is a matter on which we find ourselves
ill-equipped.
Coming
to the two Acts of 1976 by which the life of the Lok Sabha was extended,
section 2 of the first of these Acts, 30 of 1976, which was passed on February
16, 1976, provided that the period of five years in relation to the then House
of the People shall be extended for a period of one year "while the
Proclamation of Emergency issued on the 3rd day of December, 1971 and on the
25th day of June, 1975, are both in operation." The second Act of
Extension continues to contain the same provision. It is contended by the
petitioners that the proclamation of December 3, 1971 should have been revoked
long before February 16, 1976 and that the proclamation of June 25, 1975 was
wholly uncalled for and was mala fide.
Since
the pre-condition on which the life of the Parliament was extended is not
satisfied, the Act, it is contended, is ineffective to extend the life of the
Parliament. We find it difficult to accept this contention. Both the
proclamations of emergency were in fact in operation on February 16, 1976 when
the first Act was passed as also on November 24, 1976 when the second Act, 109
of 1976, was passed. It is not possible for us to accept the submission of the
petitioners that for the various reasons assigned by them, the first
proclamation must be deemed not to be in existence and that the second
proclamation must be held to have been issued mala fide and therefore non-est.
The
evidence produced before us is insufficient for recording a decision on either
of these matters. It must follow that the two Acts by which the duration of the
Lok Sabha was extended are valid and lawful. The 40th and the 42nd
Constitutional Amendments cannot, therefore, be struck down on the ground that
they were passed by a Lok Sabha which was not lawfully in existence." The
petitioner, however, contended before us that the above decision had been
rendered on insufficient material and that if it was open to any person to
place before this Court sufficient material the Court should reconsider the
question of the validity of the Proclamations of Emergency.
Assuming
that it is possible for this Court to reopen the case, the petitioner has not
been able to place before this Court any new material on the basis of which it
is possible for us to 444 conclude that the Proclamations had been issued by
the President without applying his mind or mala fide. We are, therefore, bound
by the decision of this Court in Waman Rao's case (supra) upholding the
validity of the two Proclamations of Emergency. The only other question which
requires to be considered is whether on account of the non-publication in the
official Gazette of the resolutions of the two Houses of Parliament approving
the two Proclamations of Emergency, the Proclamations came to an end on the
expiry of the period of two months from the date of issue thereof.
The
fact that the two Proclamations had been approved by the resolutions passed by
both the Houses of Parliament as set out earlier in the course of this judgment
is not disputed by the petitioner. What the petitioner, however, contended
before the Court was that the resolutions which were almost legislative in
character and which had the effect of converting the federal State into almost
an unitary State by conferring large powers on the Central Executive and
Parliament as provided in Article 353 and in some other provisions of the
Constitution should have been given wide publicity so that people who were
affected thereby could if they did not feel satisfied about the need for
continuing the state of emergency either protest or make appropriate
representation. The petitioner urged that the democratic nature of the
Constitution which had been highlighted in its Preamble required that wide
publicity should be given to the resolutions of the two Houses of Parliament
approving any Proclamation of Emergency and that the only means available for
giving such publicity was the publication of resolutions in the official
Gazette in which the Proclamations of Emergency had been published. In support
of his argument the petitioner relied upon several Proclamations Issued in
India right from the days of Queen Victoria on many important occasions which
had been widely published in the official Gazette and by other means. He also
drew our attention to the Proclamations issued elsewhere which had been given
similar publicity through the official Gazettes of those countries. The
petitioner's argument in a nut shell was that the resolutions passed by
Parliament which had the effect of continuing the duration of emergency being
of the same character as Proclamations themselves, should have been published
in the official Gazette and in the absence of such publication the Proclamations
of Emergency should be deemed to have become ineffective on the expiry of the
period of two months from the issue thereof.
Article
352 of the Constitution does not prescribe that a Proclamation of Emergency
should be published in the official Gazette. The 445 "Proclamation of
Emergency" is defined in Article 366(18) thus:
"366.
(18) "Proclamation of emergency" means a Proclamation issued under
clause (1) of Article 352." Article 366(19) of the Constitution defines a
"public notification" thus: B "366.(19) "public
notification" means a notification in the Gazette of India, or, as the
case may be, the Official Gazette of a State." Wherever the Constitution
expressly requires a certain notification should be published in the official
Gazette it has stated that the said notification shall be published in the form
of a public notification. By way of an illustration, reference may be made to
Article 364(1) of the Constitution which reads thus:
"364.(1)
Notwithstanding anything in this Constitution, the President may by public
notification direct that as from such date as may be specified in the
notification- (a) any law made by Parliament or by the Legislature of a State
shall not apply to any major port or aerodrome or shall apply thereto subject to
such exceptions or modifications as may be specified in the notification, or
(b) any existing law shall cease to have effect in any major port or aerodrome
except as respects things done or omitted to be done before the said date, or
shall in its application to such port or aerodrome have effect subject to such
exceptions or modifications as may be specified in the notification .. - Thus
it is seen that any public notification issued under Article 364(1) of the
Constitution has to be published in the official Gazette as provided by Article
366(19) of the Constitution. A Proclamation of Emergency being a very important
event affecting public life has also to be published in any manner known to the
modern world and the publication in the Official Gazette is one such mode. We
are of the view that if the Constitution requires that a particular mode of
publication is necessary then such mode must be followed but if there is no
mode of publication prescribed by the Constitution then it must be considered
that the Constitution has left the method of publication to the authority
issuing the proclamation in order to make it known to the members of the
public. In the instant case the Proclamations of Emergency have been published
in the official Gazette. The petitioner contended that even though it was not
expressly provided that the resolutions passed by both the Houses of Parliament
should be published in the official Gazette they should have been published for
the very same reason which compelled the Government to publish the
Proclamations in the official Gazette. In the Constitution and in the Rules of
Procedure of the Houses of Parliament and of the Stale Legislatures there are
several provisions which provide for resolutions being passed by the Houses of
Parliament or the Houses of State Legislatures.
They
are among others (i) Article 123(2)(a)-Disapproval of an ordinance; (ii)
Article 169-Abolition or creation of a Legislative Council; (iii) Article
213(2)(a)-Disapproval of an ordinance; (iv) Article 249-Resolution of the
Council of States empowering Parliament to legislate with respect to any matter
in a State List in national interest; (v) Article 252-Resolutions of the House
or Houses of State Legislatures of two or more States to enable Parliament to
legislate on a State subject or adoption of a law made under Article 252 by a
State Legislature which had not requested Parliament to make it before it was
passed by the Parliament; (vi) Article 312-Resolution passed by the Council of
States creating a new All-India Service; (vii) Article 315(2)-Resolutions of
House or Houses of State Legislature of two or more States to enable Parliament
to provide a common Public Service Commission to such States; (viii) Article
320(5)-Amendment or repeal of Regulations made by the President or the Governor
under the proviso to Article 320(3); (ix) original Article 352(2)(c) and the
present Article 352(4)-Approval of Proclamations of Emergency by the Houses of
Parliament; (x) Article 356(3)-Approval of Proclamation made under Article
356(1). (xi) Article 360(2)-Approval of the Proclamation of financial emergency
by the Houses of Parliament; (xii) Proviso to Article 368-Resolutions to be
passed by the State Legislatures approving the constitutional amendments
approved by Parliament; (xiii) Article 371A(1)(a)-Power of Nagaland Legislative
Assembly to adopt an Act of Parliament in respect of certain matters; (xiv)
Articles 61, 67(b), 90, 94, 101(4), 124(4), 148(1), 190(4) and 217(1)(b)-relate
to removal of high constitutional dignitaries from office; (xv) Article 3-State
Legislature expressing its views on the alteration of its boundaries of the
State 447 concerned; (xvi) Rule No. 234 to 239 of the Lok Sabha Rules of A
Procedure and Conduct of Business-relating to modification of subordinate
Legislation and (xvii) Privilege Motions before the Houses of Parliament and
the State Legislatures relating to punishment for contempt or removal from
membership on account of highly unbecoming conduct of members. In all these
cases any resolution passed by the concerned legislative body has far-reaching
consequences.
They
are not required to be published on the Official Gazette, even though in some
cases they are published, say, where a Central law is adopted under Article 252
or a member is removed on the ground of privilege etc.. They would not be
treated as ineffective merely because they are not published in the official
Gazette. They are all however published in the Reports of the Houses of
Parliament and of the Houses of the State Legislature within a reasonable time.
The
petitioner relied on the decision of this Court in Harla v. the State of
Rajasthan, [1952] S.C.R. 110 in support of his contention. In that case the
facts were these. The Council of Ministers appointed by the Crown Representative
for the government and administration of the Jaipur State passed a Resolution
in 1923 purporting to enact a law called the Jaipur opium Act, but that law was
neither promulgated or published in the Gazette nor made known to the public.
The Jaipur Laws Act, 1923, which was also passed by the Council and which came
into force on the Ist November, 1924, provided by section 3(b) that the law to
be administered by the court of the Jaipur State shall be .........
"(b)all the regulations now in force within the said territories and the
enactments and regulations that may hereafter be passed from time to time by
the State and published in official Gazette." In 1938 the Jaipur Opium Act
was amended by adding a clause to the effect that "it shall come into
force from the Ist of September, 1924." This Court held that the mere
passing of the resolution of the Council without further publication or
promulgation of the law was not sufficient to make the law operative and the
Jaipur opium Act was not therefore a valid law. It further held that the said
Act was not saved by section 3(b) of the Jaipur Laws Act, 1923, as it was not a
valid law in force on the Ist November, 1924, and the mere addition of a clause
in 1938 that it came into force from 1924 was of no use. In State of Punjab v.
Sat Pal Dang & Ors. [1969] 1 S.C.R. 478 one of the questions which arose
for consideration was whether the decision of the Governor proroguing the
Legislative Assembly was required to be communicated to each and every member
of the Legislature before it could become effective. This Court held that
Article 174(2) of the Constitution which enabled the Governor to prorogue the
Legislature did not indicate the manner 448 in which the Governor was to make
such orders known and that he could follow the well-established practice that
such orders were ordinarily made known by a public notification which meant no
more than that they were notified in the Official Gazette of the State. There
was such a notification on the 11th March, 1968 and the prorogation must be
held to have taken effect from the date of publication. It was not necessary
that the order should reach each and every member individually before it could
become effective. In so far as the Governor was concerned it was open to him to
publish a notification issued by him under Article 174(2) of the Constitution
in the Official Gazette of the State and such publication was considered to be
sufficient. But the real question in this case is whether the resolutions
passed by both the Houses of Parliament approving the two Proclamations of
Emergency had also to be published in the official Gazette. We shall assume
that the resolutions of both the Houses of Parliament approving a Proclamation
of Emergency should be given due publicity. We have already shown above that in
the Lok Sabha Debates and in the Rajya Sabha Debates the proceedings relating
to the resolutions in question had been published in the usual course. Rule 379
of the Rules of Procedure and Conduct of Business in Lok Sabha provides for the
publication of the full report of the proceedings of the Lok Sabha. It reads
thus:
"379.
The Secretary shall cause to be prepared a full report of the proceedings of
the House at each of its sittings and shall, as soon as practicable, publish it
in such form and manner as the Speaker may, from time to time, direct.
Rule
382(1) of the said Rules provides for the printing and publication of
Parliamentary papers. It reads thus:
"382.
(1) The speaker may authorise printing, publication, distribution or sale of
any paper, document or report in connection with the business of the House or
any paper, document or report laid on the Table or presented to the House or a
Committee thereof.
(2)
A paper, document or report printed, published, distributed or sold in
pursuance of sub-rule (1) shall be deemed to have been printed, published,
distributed or sold under the authority of the House within the meaning of
clause (2) of Article 105 of the Constitution." Similarly in the Rules of
Procedure and Conduct of Business of 449 the Council of States (Rajya Sabha)
Rule 260 provides thus:
"260.
Preparation and publication of proceedings of Council.-The Secretary-General
shall cause to be prepared a full report of the proceedings of the Council at
each of its meetings and shall, as soon as practicable, publish it in such form
and manner as the Chairman may, from time to time, direct." The Rules of
Procedure of the both the Houses of Parliament are made under Article 118(1) of
the Constitution which reads thus:
"118.(1)
Each House of Parliament may make rules for regulating, subject to the
provisions of this Constitution, its procedure and the conduct of its business.
(2)
Until rules are made under clause (1), the rules of procedure and standing
orders in force immediately before the commencement of this Constitution with
respect to the Legislature of the Dominion of India shall have effect in
relation to Parliament subject to such modifications and adaptations as may be
made therein by the Chairman of the Council of States or the Speaker of the
House of the People, as the case may be ..........." Section 57 of the
Indian Evidence Act, 1872 requires the Court to take judicial notice of the
facts stated therein. Clause (4) of section 57 of the Indian Evidence Act, 1872
reads thus:
"57.
The Court shall take judicial notice of the fol lowing facts:
.................................................
(4)
The course of proceeding of Parliament of the United Kingdom, of the
Constituent Assembly of India of Parliament and of the Legislatures established
under any laws for the time being in force in a Province or in the State."
Section 56 of the Indian Evidence Act, 1872 provides that:
"56.
No fact of which the court will take judicial notice need be proved."
Section 74 of the Indian Evidence Act, 1872 refers to the documents which are
considered to be public documents.
Sub-clause
(iii) of clause (1) of section 74 reads thus:
"74
The following documents are public documents:
(1)
documents forming the acts or records of the acts-(i) ........... (ii) ....
(iii) of public officers, legislative, judicial and executive of any part of
India or of the Commonwealth, or of a foreign country." Section 78 of the
Indian Evidence Act, 1872 lays down the mode of proof of certain public
documents. The relevant part of it reads thus:
"78.
The following public documents may be proved as follows:
(1)...........................................
(2)
The proceedings of the Legislatures,- by the journals of these bodies
respectively, or by published Acts or abstracts, or by copies purporting to be
printed by order of the Government concerned." The Lok Sabha Debates and
the Rajya Sabha Debates are the journals or the reports of the two Houses of
Parliament which are printed and published by them. The Court has to take
judicial notice of the proceedings of both the Houses of Parliament and is
expected to treat the Proceedings of the two Houses of Parliament as proved on
the production of the copies of the journals or the reports containing
proceedings of the two Houses of Parliament which are published by them.
In
Niharendu Dutt Majumdar v. The King Emperor, [1942] F.C.R.38 the Federal Court
of India was called upon to decide a question almost similar to the question
which has arisen before us in this case. The facts of that case were these.
Section 102 of the Government of India Act, 1935 authorised the
Governor-General to issue a Proclamation of Emergency, the relevant part of
which read as follows:
"102.(1)
Notwithstanding anything in the preceding 451 sections of this chapter, the
Federal Legislature shall, if the Governor-General has in his discretion
declared by Proclamation (in this Act referred to as a "Proclamation of
Emergency") that a grave emergency exists whereby the security of India is
threatened, whether by war or internal disturbance, have power to make laws for
a Province or any part thereof with respect to any of the matters enumerated in
the Provincial Legislative List or to make laws, whether or not, for a Province
or any part thereof, with respect to any matter not enumerated in any of the
lists in the Seventh Schedule to this Act.
.............................................
(2)..........................................
(3)
A Proclamation of Emergency:
(a)
may be revoked by a subsequent Proclamation;
(b)
shall be communicated forthwith to the Secretary of State and shall be laid by
him before each House of Parliament;
(c)
shall cease to operate at the expiration of six months, unless before the
expiration of that period it has been approved by Resolutions of both Houses of
Parliament." The Governor-General had issued a Proclamation in exercise of
his powers under section 102(2) of the Government of India Act, 1935 declaring
that a grave emergency existed, whereby the security of India was threatened,
by war on September 3, 1939 on receipt of information from His Majesty's
Government in the United Kingdom that a state of war existed between His
Majesty and Germany and on September 29, 1939 the Defence of India Act 1939 was
enacted. The appellant in that case was convicted by the Additional Chief
Presidency Magistrate at Calcutta on the 21st July, 1941, of offences under
sub-paragraphs (e) and (k) of paragraph (6) of Rule 34 of the Defence of India
Rules and was sentenced to be detained till the rising of the Court and to pay
a fine of Rs.500, and in default to undergo six months' rigorous imprisonment.
The conviction and sentence were upheld on appeal by the High Court, and the
appellant had preferred the above said appeal before the Federal Court against
the judgment of the High Court of Calcutta. On appeal although the appellant
was 452 acquitted on the ground that the facts established in the case did not
make out the offences for which he had been punished the Federal Court negative
the contention of the appellant that the Proclamation of Emergency issued under
section 102 of the Government of India Act, 1935 had ceased to be in force at
the expiration of six months as there was no proof of the fact that the said
Proclamation of Emergency had been approved by the resolutions of both the
Houses of the British Parliament as required by clause (c) of section 102 of
the Government of India Act, 1935. Before the High Court the relevant volumes of
the "Parliamentary Debates" which contained the official reports of
the debates in the Houses of the British Parliament had been produced and
accepted by the High Court as proof that the British Parliament had passed the
necessary resolutions. But the appellant contended that that proof was not
adequate and that only copies of the official Journals of the two Houses had to
be produced. The Advocate-General of Bengal contended that the court was not
entitled and indeed ought to take judicial notice of the fact that the
resolutions were passed and that in any event the volumes of the Parliamentary
Debates were all that was necessary in the way of legal proof. Gwyer, C.J.,
while rejecting the above contention of the appellant observed at pages 45-47
thus: E "In our opinion the volumes of the official Parliamentary Debates
afforded adequate legal proof of the passing of the two Resolutions by the
Houses of Parliament. Section 78 of the Indian Evidence Act sets our certain
categories of public documents and the manner in which they may be proved. The
first four categories (as amended by the Adaptation of Indian Laws order, 1937)
are these: "(1) Act, orders or notifications of the Central Government in
any of its departments, or of any Provincial Government or any department of
any Provincial Government"; "(2) Proceedings of the Legislatures,
which may be proved 'by the journals of those bodies respectively, or by
published Acts or abstracts, or by copies, purporting to be printed by orders
or regulations issued by Her Majesty or by the Privy Council, or by any
department of Her Majesty's Government";
(3)
Proclamations, orders or regulations issued by Her Majesty of by the Privy
Council or by any department of Her Majesty's Government "(4) The Acts of
the Executive or the proceedings of the Legislature of a foreign country",
which may be proved "by journals published by their authority, or commonly
received in that country as such", and in certain other ways not here
material. In our opinion the proceedings of Parliament fall under either the
second or fourth of the categories set out above. It may be said that the
reference in the second category to proceedings of "the
Legislatures", following immediately upon the first category which is
confined to acts, orders or notifications of Governments in British India, is
to be taken as a reference to the Legislatures of British India only. We find
it difficult however to believe that s. 78 excludes any reference whatsoever to
the proceedings of Parliament, especially when the executive acts of the
Government of the United Kingdom are given a category to themselves, and we
should find ourselves compelled, if we adopted that construction, to hold that
proceedings in Parliament fell into the fourth category, that is to say, "the
proceedings of the Legislatures of a foreign country"; but it would
perhaps be even more difficult to suppose that Parliament can have been so
described by the Indian Legislature in 1872. The explanation may be that
"the legislatures" to which the second category refers are intended
to include all the legislatures which have the power to make laws for British
India or for any part thereof; but we have no doubt that the present case must
fall within either the one category or the other .. ............ We have
ascertained by inquiry from the Legislative Department of the Government of
India that the official Reports of the Council of State and of the Legislative
Assembly which follow very closely the form and manner of presentation of the
official Parliamentary Debates in England, are the only record of the
proceedings of the two Houses, no other record similar to that of the Journals
of the two Houses of Parliament in England being made. The proceedings of the
Indian Legislature could clearly be proved by tendering in evidence copies of
these official Reports; and we can see no reason why the proceedings of
Parliament cannot be proved by an exactly similar English publication, issued
with a similar authority.
Having
regard to the view which we take on this point, we need not consider the other
contention urged by the Advocate-General of Bengal that the passing of the two
Resolutions by Parliament was a matter of which the Courts were entitled to
take judicial notice." 454 We have quoted in extenso the relevant part of
the judgment in Niharendu Dutt Majumdar's, case (supra) with which we
respectfully agree since we are concerned in this case with a similar question.
We
do not also find much substance in the submission of the petitioner that the
publication in the Lok Sabha Debates and in the Rajya Sabha Debates had been
made after about two months and therefore until the resolutions were published
they were ineffective. What is essential is that the resolutions approving the
Proclamation of Emergency should be passed within the period of two months. A
little delay in publishing the proceedings would not affect the validity of the
resolutions. Let us take the case of an Act of Parliament. Under section 5 of
the General Clauses Act, 1897 where any Central Act is not expressed to come
into operation on a particular day then it shall come into operation on the day
on which it receives the assent of the President and unless the contrary is
expressed a Central Act shall be construed as coming into operation immediately
on the expiration of the day preceding its commencement. Even if there is some
delay in the publication of the Central Act in the official Gazette, its
operation does not get suspended until such publication unless the contrary is
expressed in the statute itself. While on the face of it, as observed, by Sir
C.K. Allen in his Law and orders (2nd Edn.) at page 132, it would seem
reasonable that legislation of any kind should not be binding until it has some
how been 'made known' to the public, "that is not the rule of law and if
it were, the automatic cogency of a statute which has received the royal assent
would be seriously and most inconveniently impaired". The reasoning was
that statutes at least received publicity of Parliamentary debate and that therefore
they were, or should be 'known'. But this was not true of delegated
legislation, which did not necessarily receive any publicity in Parliament or
in any other way.
That
is the reason for the insistence of the publication of subordinate legislation
in the official Gazette before it can be brought into force. In so far as the
Acts and resolutions passed by the Houses of Parliament and the State
Legislatures are concerned the very process of passing the law or the
resolutions in the Houses of Parliament or the State Legislatures gives them
ample publicity. The reports of the proceedings of Parliament and the State
Legislatures are widely circulated. The newspapers, radio and television are
also the other modern means which give publicity to all Acts and resolutions of
Parliament and the Legislatures of the States. In ancient days the King's
soldiers and announcers had to go round the realm to give publicity to the
royal proclamations. The present day world is different from the ancient world.
The publication in the Parliamentary Debates though after 455 some short delay
is adequate publication of the resolutions of Parliament as there is no rule
which requires that the resolutions should be published in the official
Gazette.
Hence
mere non-publication of the resolutions approving the Proclamations of
Emergency in the official Gazette did not make them ineffective.
We
are satisfied that the resolutions of the Lok Sabha and Rajya Sabha approving
the two resolutions have been duly published in the official reports of the two
Houses of Parliament. This ought to meet the contention of the petitioner that
any public Act or resolution which affects public life should be given due
publicity. We also hold that the production of the Lok Sabha Debates and of the
Rajya Sabha Debates containing the proceedings of the two Houses of Parliament
relating to the period between the time when the resolutions were moved in each
of the two Houses of Parliament and the time when the resolutions were duly
adopted amounts to proof of the said resolutions. The Court is required to take
judicial notice of the said proceedings under section 57 of the Indian Evidence
Act, 1872. We are, therefore, of the view that the two Proclamations of
Emergency were kept in force by virtue of the resolutions passed by the Houses
of Parliament until they were duly revoked by the two Proclamations which were
issued by the Vice-President acting as President of India in the year 1977.
Since the two Proclamations of Emergency were in force when the House of the
People (Extension of Duration) Act, 1976 (Act 30 of 1976) was passed its
validity cannot be questioned. The Lok Sabha passed the Finance Act, 1976
during the extended period of its duration and therefore the validity of
Finance Act, 1976 also cannot be questioned. In view of the foregoing this
petition should fail and it is accordingly dismissed. There will be no order as
to costs.
N.P.V.
Petition dismissed.
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