Case: State Of Punjab Vs. Sat Pal Dang &amp; Ors

Points of order and decisions thereon.(1)A point of order shall relate to the interpretation or enforcement of these rules or such Articles of the Constitution as regulate the business of the House and shall raise a question which is within the cognizance of the Speaker.(2)A point of order may be raised in relation to the business before the House at the moment :Provided that the Speaker may permit a member to raise a point of order during the interval between the termination of one item of business and the commencement of another if it relates to maintenance of order in or arrangement of business before the House.(3)Subject to conditions referred to in sub-rules (1) and (3) a member may formulate a point of order and the Speaker shall decide whether the point raised is a point of order and, if so, give his decision thereon, which shall be final.(4)No debate shall be allowed on a point of order, but the Speaker may, if he thinks fit bear members before giving his decision.(5)A point of order is not a point of privilege.(6)A member shall not raise a point of order :-(a) to ask for information, or(b) to explain his position, or(c) when a question on any motion is being put to the House, or(d) which may be hypothetical, or(e) that division bells did not ring or were not heard.(7)A member may raise a point of order during a division only on a matter arising out of the division and shall do so sitting."2."105. Power of Speaker to adjourn the Assembly or suspend sitting.In the case of grave disorder arising in the Assembly, the Speaker may, if he thinks it necessary to do so adjourn the Assembly or suspend any sitting for a time to be named by him.A political crisis then arose. The budget had to be adopted before March 31, 1968. No expenditure in the to May 6, 1968. No expenditure in the State could, therefore, be made from April 1, 1968. The Governor then acted under his constitutional powers. On March 11, 1968 the Governor prorogued the Assembly under Article 174 (2) (a) (3)*. The order of the Governor was caused to be printed in the State Gazette the same day by the Chief Secretary and copies of the Gazette were despatched to the Secretary of the Assembly, the Speaker and other members on the following day. On March 13, 1968 the Governor promulgated Ordinance No.1 of 1968 (The Punjab Legislature (Regulation of Procedure in relation to Financial Business) Ordinance, 1968). On March 14, 1968 the Governor summoned the Legislative Assembly under Art. 174 (3) fixing March 18, 1968 for its sitting and under Art. 175 (2) (4)*directed the Assembly to considerSupplementary Estimates, 1967-68 (Second Instalment).(ii) The Punjab Appropriation Bill, 1968 relating to the Supplementary Estimates, 1967-68 (Second Instalment).(iii) Demands for Grants as included in the Budget Estimates for the year 1968-69.(iv) The Punjab Appropriation Bill (No.2) 1968, relating to the Budget Estimates for the year 1968-69."3."174. Sessions of the Legislature, propagation and discussion.(1) The Governor shall from time to time summon the House or House of the Legislatures of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for their first sitting in the next session.(2) the Governor may from time to time -(a) prorogue the House or either House;(b)x x x x"4."175 Right of Governor to address and send messages to the House or Houses.(1) x x x x(2) The Governor may send message to the House or Houses of the Legislature of the State, whether with respect to a Bill then pending in the Legislature or otherwise, and a House to which any message is so sent with all convenient despatch consider any matter required by the message to be taken into consideration.When the Legislative Assembly met it began by considering certain other matters such as privilege motions, arrangement for Watch and Ward Staff. The Speaker then read the Message of the Governor referred to above. Sardar Gurunam Singh rose to move a point of order but the Speaker asked him to wait and the House attended to some other matters. It granted leave of absence to one member who was ill and the Speaker named the Panel of Chairman. The Ordiance was then placed on the Table of the House. The text of the Oridnance is given in an appendix to this judgment, It consisted of four sections. Section 3 provided that the sitting of either House of Legislature was not to be adjourned without the consent of that House until completion of financial business,, and Section 4 provided that the annual financial statement laid before the House under Article 202 or the statement showing the estimated amount of any supplementary or additional expenditure had been laid under Art. 205 was not to lapse by reason of the prorogation of the House and that it would not be necessary to relay such statements before the House.7. Sardar Gurnam Singh again rose to urge his point of order. He was reminded that a Resolution to the same effect was to be brought before the Assembly, but he continued with his point. He stated that the Ordinance was issued when the Assembly was in Session and the House was summoned by the Governor before it was prorogued. He elaborated his point of order on the same lines as was done in the arguments before us and we shall come to these in due course. A debate, punctuated with uproar in the House, followed. It appears that the Speaker at first was of adjourn the House in view of Section 3 of the Ordinance but Sardar Gurnam Singh maintained that he had such power under Rule 105. The Speaker observed : "Yes, I can adjourn the (House) but what about the Ordinance ?" Sardar Gurnam Singh opined that there was no Ordnance. The Speaker then ruled that the House was prorogued not on 11th March, but on the 18th and gave the ruling in the following wordsorder by the Governor dated 14-3-1968 summoning the House is also illegal and void and he had no power to re-summon the House once adjourned under Rule 105 of the Vidhan Sabha Rules referred to above, Therefore, in accordance with my earlier ruling dated 7-3-1968 the House stands adjourned for two months from that date.(The Sabha then adjourned)5.05meeting had lasted 3 hours.8. What followed may be extracted from the proceedings5.05 P.M. the Speaker declared that the House stands adjourned" for two months and left the Chair. The Members continues to sit in the House. There was uproar and furore in the House. One of the Hon. Members occupied the Speakers Chair and some members rushed to the Speakers dais and stood there. Then Hon. Deputy Speaker came and occupied seat No. 15 in the House to conduct the proceedings. As the seats of the Secretary/other officers of the Punjab Vidhan Sabha Secretariat and Reporters were also occupied by the Members of the Opposition, they all occupied seats adjoining seat No. 15).(Noise and uproar in the House voices   of shame shame from the Members of the Opposition).Mr. Deputy Speaker :As the Speaker had adjourned the House, (sic) when he had no authority to do so (Interruptions and Uproar) under the Ordinance promulgated by the Government, any such adjournment ordered by the Speaker, is, therefore, null and void (Uproar and renewed noise in the House). The House will now resume consideration of business before it and I now call upon the Chief Minister to move the motion.(Uproar and furore in the House)(At this stage, the Speakers dais was clear and the Hon. Deputy Speaker occupied the Speakers Chair at the Dais)."Definition of "Money Bills"(1)* * * *(4)There shall be endorsed on every Money Bill when it transmitted to the Legislative Council under Article 198, and when it is presented to the Governor for assent under Article 200, the certificate of the Speaker of the Legislative Assembly signed by him that it is a Money Bill.Two writ petitions were then filed in the High Court. Civil Writ Petition (1226/68) was filed by Shri Satya Pal Dang, M. L. A. against the State of Punjab, the Chief Minister, the Finance Minister, the Secretary to the Governor, the Secretary, legislative Assembly and the Deputy Speaker. The second petition (1227/68) was filed by 6 members and was directed against those named in the other petition and also joined the Speaker, the Chairman and Deputy Chairman of the Legislative Council, the Controller of Printing and Stationery and one Sardar Kirpal Singh, M.L.A. The arguments in the High Court ranged over a wide field. They were summarized into eight points by Justice S. B. Capoor which, it is common case, represent the essence of the matter. Stated briefly, the arguments were that the prorogation took effect on the 18th March. As a consequence the summoning of the Legislature before prorogation was invalid. These points go together. Since both the prorogation and resummoning of the Legislature were invalid the House continued to be in session although adjourned. Since the Legislature was in "Session", the Ordinance could not be passed and it was a fraud upon the Constitution. Section 3 of the Ordinance was specially attacked as unconstitutional. The ruling of the Speaker given on March 18, 1968 was not open to challenge in Courts and the further proceedings in the Assembly were illegal. Even if everything was regular it was in issue whether the Speaker alone was entitled to endorse a Money Bill and certify it to the Legislative Council and the Governor and since the certificates were by the Deputy Speaker, the two Acts were said to be ultra vires.11. In the High Court the Full Bench unanimously held against the petitioners on the question of the prorogation and resummoning of the Legislature which were held to be regular and legal. The Full Bench also held unanimously that the ruling given by the Speaker on the 18th March, made the later proceedings illegal. There was a difference on the point that the certification by the Deputy Speaker in place of the Speaker was valid. The majority holding that it was not. Similarly a majority of Judges held that Section 3 of the Ordinance was unconstitutional and invalid and the Full Bench unanimously held the Appropriation Acts to be unconstitutional.

Reasoning:
The power under Art. 213 is available to the Governor when the Assembly is not in session. The position after the 7th March adjournment of the Assembly was this : The Assembly was in session but it was put in a State of inaction for 2 months by the adjournment which the Governor had no power to rescind and the Speaker would apparently not be prepared to recall. Time was running out and the Budget Session of the Assembly had to reach a conclusion before March 31. After that date no money could be drawn from the Consolidated Fund (Article 266 (3)). The Governor thus had to act and act quickly to put back the Legislative machinery of the State into life. Only two courses were open. One was for the Ministers to ask the Speaker under Rule 16 to recall the Assembly which was, perhaps, attempting the impossible.The other was to prorogue the Assembly to get rid of the adjournment and then to resummon the Assembly. The second was not only a reasonable solution but the one most properly adapted to achieve a constitutional result and it was followed. The action of the Governor may now be considered.Article 174 (2) (3) which enables Governor to prorogue the Legislature does not indicate any restrictions on this power. Whether a Governor will be justified to do this when the Legislature is in session and in the midst of its legislative work, is a question that does not fall for consideration here. When that happens the motives of the Governor may conceivably be questioned on the ground of an alleged want of good faith and abuse of constitutional powers. We do not go as far as the earned Judges in In Re, Kalyanam Veerabhadrayya, AIR 1950 Mad 243  . But that is not the case here.The bona fides of the Speakers ruling adjourning the Assembly for so long as 2 months when the Financial Statement and the budget were on the agenda and time was running out are more in question than the conduct of the Governor. No mala fides were attributed to the Governor except to say that he acted in excess of his powers or in colourable exercise of them.The power being untrammelled by the Constitution and an emergency having arisen, the action was perfectly understandable. We shall presently show that the Governor acted not only properly but in the only constitutional way open to him. There was thus no abuse of power by him, nor can his motives be described as mala fide as has been said by one of the learned Judges in the judgment under appeal.It is a matter of regret that such a conclusion was reached without any plea or material.Article 174 (2) (3) which enables the Governor to prorogue the Legislature does not indicate the manner in which the Governor is to make known his orders.He could follow the well-established practice that such orders are ordinarily made known by a public notification which means no more than that they are notified in the Official Gazette of the State. There was such a notification on the 11th March, and prorogation must be held to have taken effect from the date of publication.It was not necessary that the order must reach each and every member individually, before it would become effective.Rule 7, which is framed under Article 208 of the Constitution regulates the procedure of the Legislature but is not intended to add a clause to Art. 174 (2) (3) so as to make it incumbent on the Governor to wait till the Secretary takes his time and issues the notification (if at all) and informs members.The words of the seventh rule when a session of the Assembly is prorogued indicate that there is a prorogation and the rest of it is intended for communication of the fact to the public and conveying the order to the members.The communication is by notification in the Gazette. The action of the Secretary in sending copies of the Gazette to the members is merely ministerial. Rule 7 cannot be read as a condition precedent for the efficacy of the Governors order provided it was duly notified.It is significant that while Mr. Chagla based his entire case on Rule 7, Mr. Garg did not rely on it but questioned the very power to prorogue in the circumstances of the case. We can understand Mr. Gargs argument although we do not accept it, but we find it difficult to appreciate the stand taken by Mr. Chagla.We are, therefore, clearly of the opinion (which the High Court also unanimously entertained) that the prorogation became effective on the 11th when the Governor issued a public notification. The means open to the Governor under the Constitution are public notification and proclamation. Article 174 (3) does not state what procedure is to be followed and rule 7 (8) says that the Secretary to the Assembly shall notify the order. If the Governor followed the same procedure no exception can be taken. The argument that only the Secretary to the Assembly can notify the order is to further refine a point already very fine, and ignores the Business Rules. Under the Business Rules, the Chief Secretary deals with all questions relating to the Assembly and the Council and the Governor in notifying it in the Gazette through the Chief Secretary was acting under the Business Rules. As a matter of fact copies of the notification were despatched on the 12th and presumably reached the Secretary of the Assembly and also the Speaker the same day. We are bound to take judicial notice of the prorogation and presume the regularity of these actions which must be interpreted as far as possible so that the thing done may be valid rather than invalid. This is not the extreme case, propounded by Mr. Chala, of a Governor passing an order and keeping it locked in his drawer. It is significant that even in England where prorogation used to be through a writ or writ patent or a commission under the Great Seal of the United Kingdom read in the Houses now a proclamation by the Queen suffices under the Prorogation Act of 1867. Therefore, the Governors act became a public act after the notification. This was on the 11th March, 1968. We are also satisfied that there was no other motive than to set right the constitutional machinery by the invocation of the powers conferred expressly on thethe prorogation there was no further curb on the legislative power of the Governor. The power of legislation by Ordinance is as wide as the power of Legislature of the State. Article 213 (2) (6) provides than an ordinance promulgated under that Article has the same force and effect as an Act of the Legislature of the State assented to by the Governor except that it must be laid before the Legislative Assembly of the State and the Legislative Council (where there is one) and expires after the expiration of 6 weeks or earlier if it is withdrawn by the Governor or disapproved by the Legislature of the State.Counsel argued that the power of the Governor is only to pass a law under the second and third of the Legislative Lists and not under Article 209 (7). We see no force in this submission which is not supported by any provision of the Constitution or authority of this Court.In fact, the powers of the legislature are expressly indicated in Article 209 (7) and the Governor must, therefore, possess an equal power unless there be an expression of intention to the contrary in the Constitution. There is no such expression of intention and none can be implied from Articles 245 and 246 in the face of the special provisions of Art. 213 (2) (6). The Ordinance was, therefore, validly enacted under the power derived from Arts. 209 and 213.Article 209. (7) is intended to speed financial business in the legislatures so that attempts to filibuster, adjourn or otherwise delay such business may be avoided. If ever there was an occasion for the regulation of procedure in the legislature of the State in relation to the financial business by a law under Article 209, it was this. The Legislature could not be allowed to hibernate for 2 months while the financial business languished and the constitutional machinery and democracy itself were wrecked. To suggest that the Presidents rule should have been imposed instead, is to suggest a line of action which a party not in majority would have obviously preferred but it would have cut at the root of parliamentary government to which our country is fortunately committed. If by adopting the present course parliamentary Government could be restored, there was neither an error of judgment nor a mala fide exercise of power. There was nothing colourable about it. It was intended to achieve a definite purpose by using the constitutional power of the Governor. We are, therefore, quite clear that the action of prorogation cannot be questioned on any of the grounds suggested by the respondents.The resummoning of the Legislature immediately afterwards was also a step in the right direction. It set up once again the democratic machinery in the State which had been rudely disturbed by the action of the speaker.Knowing that it would ordinarily take much time to finish the Financial Business, that time was short and attempt would be made to delay matters, the ordinance created a law which Art. 209 (7) enables to be enacted for the speedy disposal of financial business. The matters were, therefore, left in the hands of the Legislature with the only restriction that the Legislature would not adjourn except when a House by a majority desired it.This respected the democratic right of the Legislature but put down the vagaries of action calculated to delay the business. The measure was eminently healthy and as it was also legal the Assembly was bound by the law thuscase was concerned with excess of legislative power under an entry. The general words were read as they were and pointed to an excessive power being conferred, .In Romesh Thappar v. State of Madras, 1950 SCR 594 = (AIR 1950 SC 124  ) the law offended Fundamental Rights and there was no escape from the operation of Article 13 of the Constitution when there was no room for severability. In Bikhraj Jaipuria v. Union of India., 1962 (2) SCR 880   = (AIR 1962 SC l13) the capacity to contract was involved and that case hardly applied. In Kameshwar Prasad v. State of Bihar, 1962 Supp (3) SCR 369 = (AIR 1962 SC 1966) there was difficulty in the way of reading Rule 4-A of the Bihar Government Servants Conduct Rules 1956 because of its general words and hence the whole rule was struck down. We can read down Section 3 of the Ordinance because the Ordinance could never provide for want of quorum which is a constitutional requirementRule 105 gets out of the way by the operation of Article 209. It depends always on how far the provision of a law is intended to go. There is a canon of construction that the language of a statute, even if it is prima facie wide, is to be understood as not attempting something beyond the competence of the legislative body. In such a case the overriding law must have its play. Article 189 (4)(9) was outside the law making power of the Governor and his Ordinance must be read to harmonize with it. Similarly, the power of adjournment was curtailed but not the power to suspend business. Even adjournment was possible provided the House agreed. We see no force in the argument that Sec. 3 is ultra vires.Further again, there is Art. 212 Clause (1) which provides that the validity of any proceeding in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.This clause was invoked in respect of a Money Bill in Patna Zilla Truck Owners Association v. State of Bihar, AIR 1963 Pat 16   following a case of this Court in Mangalore Ganesh Beedi Works v. State of Mysore, 1963 Supp (1) SCR 275=(AIR 1963 SC 589  ). We are entitled to rely upon this provision. Our conclusion gets strength from another fact. There is no suggestion even that the Appropriation Bills were not Money Bills or included any matter other than that provided in Article 199 or were not passed by the Assembly. It is also significant that the Speaker wrote to the Chairman of the Legislative Council that there was no certificate by him and that he had adjourned the Assembly when the Bills were adopted but the Legislative Council in spite of objection considered and passed the two Bills and the Governor assented to them. We are of opinion that the two Bills were duly certified.This concludes the whole case and the events on which it is based. Mr. Garg contended for a larger issue. He said that the Legislature should not be at the mercy of the Governor and the absolute field of action open to the Legislature and the Speaker would be unreasonably cut down and thus lead to assumption of absolute powers by Governors. We do not entertain any such apprehensions, The situation created in the State of Punjab was unique and was reminiscent of happenings in the age of the Stuarts. The action of the Governor appears to be drastic. It was, however, constitutional and resulted from a desire to set right a desperate situation. As Bacon once said, no remedies cause so much pain as those which are efficacious.