ition No 63 of 1977
Under Article 32 of the Constitution of India
Petitioner in person
Kuldeep Singh Additional Solicitor General BB Ahuja Ms A Subhashini Ms J Wad and CV Subba Rao for the Respondents
The Judgment of the Court was delivered by VENKATARAMIAH J
Shri Baburao alias PB 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 3121971 by the President of India was either ultra vires the Constitution or had ceased to be in operation on 421972
2 The Proclamation of Emergency dated 2561975 issued by the President of India on 2661975 was either ultra vires the Constitution or had ceased to be in operation on 2681975 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 CSR 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 VV 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 VV 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 GSR 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 GSR 1789 dated the 3rd December 1971
New Delhi the 27th March 1977 sd BDJatti 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 GSR 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 FA
Ahmed President No 1116013175 SPD 11 SL 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 GSR 117E 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 353b dated the 26th June 1975
BDJatti Vice President acting as President New Delhi the 21st March 1977
 Article 832 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
vs Union of India  Ors
19812 SCR1 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 36618 thus 366
18 Proclamation of emergency means a Proclamation issued under clause 1 of Article 352
 Article 36619 of the Constitution defines a public notification thus B 36619 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 3641 of the Constitution which reads thus 3641 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 3641 of the Constitution has to be published in the official Gazette as provided by Article 36619 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 publica 446 tion 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 1232a Disapproval of an ordinance ii Article 169 Abolition or creation of a Legislative Council iii Article 2132a 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 3152 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 3205 Amendment or repeal of Regulations made by the President or the Governor under the proviso to Article 3203 ix original Article 3522c and the present Article 3524 Approval of Proclamations of Emergency by the Houses of Parliament x Article 3563 Approval of Proclamation made under Article 3561
xi Article 3602 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 371A1a Power of Nagaland Legislative Assembly to adopt an Act of Parliament in respect of certain matters xiv Articles 61 67b 90 94 1014 1244 1481 1904 and 2171b 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 vs the State of Rajasthan  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 3b that the law to be administered by the court of the Jaipur State shall be   ball 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 3b 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 vs Sat Pal Dang  Ors  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 1742 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 1742 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 3821 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 1181 of the Constitution which reads thus 1181 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 requires the Court to take judicial notice of the facts stated therein
Clause 4 of section 57 of the 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 provides that 56
No fact of which the court will take judicial notice need be proved
 Section 74 of the refers to the docu 450 ments 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 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 vs The King Emperor 1942 FCR38 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 1021 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 1022 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 Rs500 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 negatived 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 CJ 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 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 mate 453 rial
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 beliece that section 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 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 CK 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 
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
NPV Petition dismissed


Summary:
 detention order was passed and served on the detenu on Augus t 3 1987 while he was in jail for five non bailable offences alleged to have been committed by him on May 191987
The detention order alleged that as the detenu who was in jail was trying to come out on bail and there was enough possibility of his being bailed out it was necessary to detain him in order to prevent him from doing acts against maintenance of public order
The detention was approved by the Government under section 12 1 of the  after the receipt of the Advisory Board s opinion
The validity of the detention was challenged in the writ petition before this Court
On the question whether the detention could be justiaed solely on the ground that the detenu was trying to come out on bail and there was enough possibility of his being bailed out and he would then act pre judicially to the interest of the public order
This Court quashed the detention order on December 18 1987
Giving the reasons for its decision  HELD Section 3 of the does not preclude the authority from making an order of detention against a person while he is in custody or in jail but the relevant facts in connection with the making of the order would make all the difference in every case
The validity of the order of detention has to be judged in every individual case on its own facts
597C D 594 Every citizen in this country has the right to have recourse to law
He has the right to move the court for bail when he is arrested under the ordinary law of the land
If the State thinks that he does not deserve bail the State could oppose the grant of bail
He cannot however be interdicted from moving the court for bail by clamping an order of detention
The possibility of the court granting bail may not be suffi cient
Nor a bald statement that the person would repeat his criminal activities would be enough
There must also be credible information or cogent reasons apparent on the record that the detenu if enlarged on bail would act prejudicially to the interest of public order
598B C In the instant case there was no material made apparent on record that the detenu if released on bail was likely to commit ac tivities prejudicial to the maintenance of public order
The detention order cannot be justified merely on the ground that the detenu was trying to come out on bail and there was enough possibility of his being bailed out
598F G Poonam Lata vs M L Wadhawan  relied on
Alijan Mian and another vs District Magistrate Dhanbad  Ramesh Yadav vs DistrictMagistrate Etah and ors 1985 4 SCC at p 234 and Binod Singh vs District Magistrate Dhanbad  at 421 explained