PETITIONER:
BABU RAO ALLIAS P.B. SAMANT
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT17/12/1987
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
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.
JUDGMENT:
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, column427). 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 Article352.”
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 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 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 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 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 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, 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 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 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.
456