{"id":38970,"date":"1987-12-17T00:00:00","date_gmt":"1987-12-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/babu-rao-allias-p-b-samant-vs-union-of-india-and-ors-on-17-december-1987"},"modified":"2015-08-02T12:43:48","modified_gmt":"2015-08-02T07:13:48","slug":"babu-rao-allias-p-b-samant-vs-union-of-india-and-ors-on-17-december-1987","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/babu-rao-allias-p-b-samant-vs-union-of-india-and-ors-on-17-december-1987","title":{"rendered":"Babu Rao Allias P.B. Samant vs Union Of India And Ors on 17 December, 1987"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Babu Rao Allias P.B. Samant vs Union Of India And Ors on 17 December, 1987<\/div>\n
Equivalent citations: 1988 AIR 440, \t\t 1988 SCR (2) 431<\/div>\n
Author: E Venkataramiah<\/div>\n
Bench: Venkataramiah, E.S. (J)<\/div>\n
           PETITIONER:\nBABU RAO ALLIAS P.B. SAMANT\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA AND ORS.\n\nDATE OF JUDGMENT17\/12\/1987\n\nBENCH:\nVENKATARAMIAH, E.S. (J)\nBENCH:\nVENKATARAMIAH, E.S. (J)\nSINGH, K.N. (J)\n\nCITATION:\n 1988 AIR  440\t\t  1988 SCR  (2) 431\n 1988 SCC  Supl.  401\t  JT 1987 (4)\t672\n 1987 SCALE  (2)1322\n\n\nACT:\n     Constitution of  India, 1950:  Articles 83,  118,\t352,\n353, 364  and 366-Proclamations\t of Emergency dated December\n3, 1971\t and June 25, 1975-Whether ultra vires-Publishing of\nProclamations  in   official  Gazette-Whether\ta  mode\t  of\npublication\n\n\n\nHEADNOTE:\n%\n     Rules of  Procedure and  Conduct  of  Business  in\t Lok\nSabha:\t Rules\t 260,\t379   and   382-Non-publication\t  of\nresolutions-Whether resolutions\t ineffective-Publication  in\nParliamentary Debates even after delay-Adequate publication.\n     House of  the People (Extension of Duration) Act, 1976:\nWhether ultra vires.\n     Finance Act, 1976: Validity of.\n     Indian  Evidence\tAct,  1872:   S.  57-Proceedings  of\nParliament-Court to take judicial notice.\n     The petitioner,  an assessee  under the  Income Tax Act\nand Wealth  Tax Act  during the\t assessment year 1976-77 and\nliable to  pay income  tax and wealth tax in accordance with\nthe rates  prescribed by  the Finance  Act, 1976,  which was\npassed by the Lok Sabha during its extended period under the\nprovisions  of\t the  House  of\t the  People  (Extension  of\nduration) Act,\t1976, filed  a\twrit  petition\tbefore\tthis\nCourt, challenging  the vires  of the  two Proclamations  of\nEmergency issued by the President on 3.12.1971 and 26.6.1975\nand also  of the House of the People (Extension of Duration)\nAct, 1976  and the  Finance Act,  1976 contending  that\t the\nduration of  the House\tof People  would have  been  validly\nextended only  when a Proclamation of Emergency was in force\nunder the  proviso to cl. (2) of Art. 83 of the Constitution\nand since  the two  Proclamations of  Emergency in  question\nwere either ultra vires the Constitution or had ceased to be\nin operation  by the time the House of the People (Extension\nof Duration)  Act, 1976\t was passed  by Parliament, that Act\nhad no effect and, consequently all Acts passed by the House\nof the\tPeople during  the extended  period,  including\t the\nFinance Act, 1976\n432\nwere ultra  vires the Constitution, and that even though the\nsaid proclamations had been validly issued, the proclamation\ndated 3rd  December, 1971  and 25th June, 1975 had ceased to\nbe in  operation on 3rd February, 1972 and 26th August, 1975\nrespectively because  the  Resolutions\tpassed\tby  the\t two\nHouses of  Parliament approving\t the said  Proclamations  of\nEmergency as  required\tby  cl.\t (2)  of  Art.\t352  of\t the\nConstitutions it stood during the relevant time had not been\npublished in  the official  Gazette  of\t the  Government  of\nIndia.\n     The petition  was opposed\tby the\trespondent-Union  of\nIndia contending  that the  two Proclamations  had been duly\nissued by  the President  and approved by the Resolutions of\nthe two\t Houses of  Parliament as  required by\tlaw and that\nactually the Proclamations of 3rd December 1971 and June 25,\n1975 had  been revoked\tby the\tVice-President acting as the\nPresident by  the Proclamations\t dated 27th  March, 1977 and\n21st  March,   1977  respectively,  that  in  the  month  of\nFebruary, 1976\twhen the  House of  the People (Extension of\nDuration) Act,\t1976  was  passed  by  Parliament  both\t the\nProclamations of  emergency were  in force  and,  therefore,\nParliament was entitled to extend the period of the House of\nthe People  for a  period not  exceeding one year at a time,\nthat the  Finance Act,\t1976 passed  duly in  the period  so\nextended  had  been,  therefore,  validly  passed  and\tthat\npublication of the Resolutions was not necessary and, in any\nevent, since  they had\tbeen published\tin the Lok Sabha and\nRajya Sabha Debates which were published under the authority\nof the\tSpeaker of  the House of the People and the Chairman\nof  the\t Rajya\tSabha  respectively,  the  Proclamations  of\nEmergency remained in force until they were duly revoked.\n     Dismissing the writ petition,\n^\n     HELD: 1.  The two\tProclamations of Emergency were kept\nin force  by virtue  of the resolutions passed by the Houses\nof Parliament  until they  were\t duly  revoked\tby  the\t two\nProclamations which were issued by the Vice-President acting\nas President  of India\tin the\tyear  1977.  Since  the\t two\nProclamations of  Emergency were  in force when the House of\nthe People (Extension of Duration) Act, 1976 was passed, its\nvalidity cannot be questioned. [455D-E]\n     The Lok  Sabha passed  the Finance Act, 1976 during the\nextended period of its duration and, therefore, the validity\nof Finance Act, 1976 also cannot be questioned. [455E]\n     2. Article\t 352 of\t the Constitution does not prescribe\nthat a\n433\nProclamation  of   Emergency  should  be  published  in\t the\nofficial Gazette.  A  Wherever\tthe  Constitution  expressly\nrequires a  certain notification  to  be  published  in\t the\nofficial Gazette,  it has  stated that the said notification\nshall be  published in\tthe form  of a\tpublic notification.\n[444H; 445C]\n     A Proclamation  of Emergency,  being a  very  important\nevent affecting public life, has also to be published in any\nmanner known  to modern\t world and  the publication  in\t the\nofficial Gazette  is one  such\tmode.  If  the\tConstitution\nrequires that  a particular mode of publication is necessary\nthen such  mode must be followed, but if there is no mode of\npublication prescribed\tby the Constitution, then it must be\nconsidered that\t the Constitution  has left  the  method  of\npublication to\tthe authority  issuing the  proclamation  in\norder t., make it known to the members of the public. [445G-\nH; 446A-B]\n     3.1 In the instant case, the Proclamations of Emergency\nhave been published in the official Gazette.[446B]\n     In the  Constitution and  in the  Rules of Procedure of\nthe Houses of Parliament and of the State Legislatures there\nare several  provisions which  provide for resolutions being\npassed by  the Houses  of Parliament  or the Houses of State\nlegislatures. They  are not  required to be published in the\nofficial  Gazette,  even  though  in  some  cases  they\t are\npublished, say,\t where a  certain law  is adopted under Art.\n252 or\ta member  is removed on the ground of privilege etc.\nThey would not be treated as ineffective merely because they\nare not\t published in  the official  Gazette. They  are all,\nhowever,  published   in  the\tReports\t of  the  Houses  of\nParliament and of the Houses of the State Legislature within\na reasonable time. [446C; 447B-C]\n     3.2 The  Lok Sabha\t Debates and the Rajya Sabha Debates\nare the\t journals or  the  reports  of\tthe  two  Houses  of\nParliament which  are printed  and published  by  them.\t The\nCourt has to take judicial notice of the proceedings of both\nthe Houses  of Parliament under s. 57 of the Indian evidence\nAct, 1872 and it is expected to treat the proceedings of the\ntwo Houses  of Parliament as proved on the production of the\ncopies\tof  the\t journals  or  the  reports  containing\t the\nproceedings of\tthe  two  Houses  of  Parliament  which\t are\npublished by them.[450E-F ]\n     3.3 What is essential is that the resolutions approving\nthe Proclamation  of Emergency\tshould be  passed within the\nperiod of  two months.\tA little  delay\t in  publishing\t the\nproceedings  would   not  affect   the\tvalidity   of  there\nsolutions. [454B-C]\n434\n     3.4 The  reports of  the proceedings  of Parliament and\nthe  State   Legislatures   are\t  widely   circulated.\t The\nnewspapers, radio  and the  television are  also  the  other\nmodern\tmeans\twhich  give   publicity\t to   all  Acts\t and\nResolutions  of\t Parliament  and  the  Legislatures  of\t the\nStates. The publication in the Parliamentary Debates, though\nafter some  short  delay  is  adequate\tpublication  of\t the\nresolutions of Parliament as there is no rule which requires\nthat the  resolutions should  be published  in the  official\nGazette. Hence,\t mere  non-publication\tof  the\t resolutions\napproving the  Proclamations of\t Emergency in  the  offlcial\nGazette did not make them ineffective. [454G-H; 455A-B]\n     In the  instant case, the resolutions of the Lok Sabha,\nand the\t Rajya Sabha approving the two resolutions have been\nduly published\tin the\tofficial reports  of the two Houses.\n[455B-C]\n     Waman Rao\t& Ors.\tEtc. Etc.  v. Union of India & Ors.,<\/a>\n[1981] 2  S.C.R. 1;  Harla v. The State of Rajasthan,<\/a> [1952]\nS.C.R. 110; State of Punjab v. Sat Pal Dang & Ors.,<\/a> [1969] 1\nS.C.R. 478  and Mharendu  Dutt Majumdar v. The King Emperor,\n[1942[ F.C.R. 38, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     ORIGINAL JURISDICTION: Writ Petition No. 63 of 1977.
\n     (Under Article 32 of the Constitution of India).
\n     Petitioner-in-person.\n<\/p>\n
     Kuldeep  Singh,   Additional  Solicitor  General,\tB.B.
\nAhuja, Ms.  A. Subhashini, Ms. J. Wad and C.V. Subba Rao for
\nthe Respondents.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     VENKATARAMIAH, J.\tShri Baburao  alias P.B. Samant, the
\npetitioner herein,  who has  argued this case in person with
\ngreat  clarity\t and  precision\t has  raised  the  following
\ncontentions in this petition.\n<\/p>\n
     (1) The  Proclamation of  Emergency issued on 3.12.1971
\nby the\tPresident  of  India  was  either  ultra  vires\t the
\nConstitution or had ceased to be in operation on 4.2.1972.\n<\/p>\n
     (2)  The  Proclamation  of\t Emergency  dated  25.6.1975
\nissued by  the President  of India  on 26.6.1975  was either
\nultra  vires  the  Constitution\t or  had  ceased  to  be  in
\noperation on 26.8.1975;\n<\/p>\n
     (3) The  House of\tthe People  (Extension of  Duration)
\nAct, 1976  (No. 30 of 1976) is ultra vires the Constitution;
\nand
\n435<\/span>
\n     (4) The  Finance Act,  1976 (66 of 1976) is ultra vires
\n     the Constitution.\n<\/p>\n
     Although the  petitioner had also challenged section 13
\nof the\tConstitution (42nd  Amendment) Act,  1976 and clause\n<\/p>\n
(c) of\tsection 3  of the Constitution (24th Amendment) Act,
\n1971 in\t the petition he did not press these two contentions
\nat the hearing of the petition
\n     The petitioner was an assessee under the Income-tax Act
\nand Wealth  Tax Act  during the\t assessment year 1976-77 and
\nwas liable  to pay  income-tax and  Wealth tax in accordance
\nwith the rates prescribed by the Finance Act, 1976 which was
\npassed by the Lok Sabha during its extended period which was
\nextended under\tthe provisions\tof the\tHouse of  the People
\n(Extension of  Duration) Act,  1976 (Act  30 of 1976), after
\nthe expiry  of five  years from\t the date  appointed for its
\nfirst meeting.\tThe contention of the petitioner is that the
\nduration of  the House of the People could have been validly
\nextended only  when a Proclamation of Emergency was in force
\nunder the  proviso to  clause  (2)  of\tArticle\t 83  of\t the
\nConstitution and  since the  two Proclamations\tof Emergency
\ndated 3rd  December, 1971  and 25th  June, 1975\t were either
\nultra  vires  the  Constitution\t or  had  ceased  to  be  in
\noperation by  the time the House of the People (Extension of
\nDuration)  Act,\t  1976\t(Act  30  of  1976)  was  passed  by
\nParliament, the\t House of the People (Extension of Duration)
\nAct, 1976  (Act 30  of 1976)  had no effect and consequently
\nall Acts  passed by  the House\tof  the\t People\t during\t the
\nextended period\t including the\tFinance Act, 1976 were ultra
\nvires the  Constitution.  He  further  submitted  that\teven
\nthough the  said Proclamations\thad been validly issued, the
\nProclamation of\t Emergency  dated  3rd\tDecember,  1971\t had
\nceased to  be in  operation on\t3rd February,  1972 and\t the
\nProclamation of\t emergency dated  25th June,  1975 which was
\nissued on  26th June,  1975 had ceased to be in operation by
\n26th August,  1975 because the resolutions passed by the two
\nHouses of  Parliament approving\t the said  Proclamations  of
\nEmergency as  required by  clause (2)  of Article 352 of the
\nConstitution as\t it stood  during the  relevant time had not
\nbeen published\tin the official Gazette of the Government of
\nIndia.\n<\/p>\n
     The petition  is opposed  by the  Union of\t India.\t The
\nUnion of  India has  contended that the two Proclamations of
\nEmergency had been duly issued by the President and approved
\nby the\tresolutions of\ttwo Houses of Parliament as required
\nby law\tand that  actually the\tproclamation of Emergency of
\n3rd December,  1971 had\t been revoked  by the Vice-President
\nacting as the President by the Proclamation
\n436<\/span>
\ndated 27th  March, 1977\t and the  Proclamation of  Emergency
\ndated June  25th, 1975\thad  been  revoked  by\thim  by\t the
\nProclamation  dated  21st  March,  1977.  In  the  month  of
\nFebruary, 1976\twhen the  House of  the People (Extension of
\nDuration)  Act,\t  1976\t(Act  30  of  1976)  was  passed  by
\nParliament both the Proclamations of Emergency were in force
\nand therefore  Parliament was  entitled to extend the period
\nof the\tHouse of  the People  for a period not exceeding one
\nyear at\t a time.  The Finance  Act, 1976  passed during\t the
\nperiod so  extended had\t been, therefore, validly passed. It
\nwas  further   pleaded\tby  the\t Union\tof  India  that\t the
\npublication of the resolutions was not necessary and that in
\nany event  since they  had been\t published in  the Lok Sabha
\nDebates and  the Rajya\tSabha Debates  which were  published
\nunder the  authority of\t the Speaker  of the  House  of\t the
\nPeople and  the Chairman of the Rajya Sabha respectively the
\nProclamations of Emergency remained in force until they were
\nduly revoked.\n<\/p>\n
      Article  352 of  the Constitution\t as it\tstood at the
\nrelevant time read as follows:\n<\/p>\n
\t       “352 (1) If the President is satisfied that a
\n\t  grave emergency  exists whereby  the\tsecurity  of
\n\t  India or  of any  part of the territory thereof is
\n\t  threatened, whether  by war or external aggression
\n\t  or internal  disturbance, he may, by Proclamation,
\n\t  make a declaration to that effect.<\/p>\n
\t       (2) A Proclamation issued under clause (1)-\n<\/p><\/blockquote>\n
\t  (a) may be revoked by a subsequent Proclamation;\n<\/p><\/blockquote>\n
\t  (b) shall be laid before each House of Parliament;\n<\/p><\/blockquote>\n
\t  (c) shall  cease to  operate at  the expiration of
\n\t  two months  unless before  the expiration  of that
\n\t  period it  has been approved by resolution of both
\n\t  Houses of Parliament:\n<\/p><\/blockquote>\n
\t       Provided that  if any  such  Proclamation  is
\n\t  issued at  a time when the House of the People has
\n\t  been dissolved  or the dissolution of the House of
\n\t  the People  takes place  during the  period of two
\n\t  months referred  to in  sub-clause (c),  and if  a
\n\t  resolution approving\tthe  Proclamation  has\tbeen
\n\t  passed by the council of States, but no resolution
\n\t  with respect\tto such Proclamation has been passed
\n\t  by the  House of  the People before the expiration
\n\t  of that period, the
\n437<\/span>
\n\t  Proclamation\tshall\tcease  to   operate  at\t the
\n\t  expiration of A thirty days from the date on which
\n\t  the House  of the  People  first  sits  after\t its
\n\t  reconstitution unless before the expiration of the
\n\t  said period  of thirty days a resolution approving
\n\t  the Proclamation has been also passed by the House
\n\t  of People.\n<\/p><\/blockquote>\n
\t       (3) A  Proclamation  of\tEmergency  declaring
\n\t  that the  security of\t India or of any part of the
\n\t  territory thereof  is\t threatened  by\t war  or  by
\n\t  external aggression or by internal disturbance may
\n\t  be made  before the actual occurrence of war or of
\n\t  any  such   aggression  or   disturbance  if\t the
\n\t  President is\tsatisfied  that\t there\tis  imminent
\n\t  danger thereof.”<\/p><\/blockquote>\n
      Clause (1) of Article 352 of the Constitution provided
\nthat if\t the President\twas satisfied that a grave emergency
\nexisted whereby\t the security of India or of any part of the
\nterritory thereof  was threatened whether by war or external
\naggression or internal disturbance, he might by Proclamation
\nmake a\tdeclaration to\tthat effect. The Proclamation issued
\nunder clause (1) of Article 352 of the Constitution could be
\nrevoked by  a subsequent Proclamation. It was required to be
\nlaid  before   each  House   of\t Parliament   and  that\t the
\nProclamation would cease to operate at the expiration of two
\nmonths unless  before the  expiration of  that period it was
\napproved by resolutions of both Houses of Parliament.\n<\/p>\n
      On  December  3,\t1971  when  India  was\tattacked  by
\nPakistan the  President issued\ta Proclamation\tunder clause
\n(1) of\tArticle 352 as he was satisfied that the security of
\nIndia had  been threatened  by external aggression. The said
\nProclamation was  published in\tthe Official  Gazette on the
\nsame date. It reads thus:\n<\/p>\n
\t\t    MINISTRY OF HOME AFFAIRS
\n\t\t\t  NOTIFICATION
\n\t  New Delhi, 3rd December, 1971 G
\n\t  C.S.R.  1789;\t  The  following   Proclamation\t  of
\n\t  Emergency by\tthe President  of India,  dated\t 3rd
\n\t  December,   1971    is   published   for   general
\n\t  information.\n<\/p><\/blockquote>\n
\t\t    Proclamation of Emergency
\n438<\/span>
\n\t       In exercise of powers conferred by clause (1)
\n\t  of Article  352 of the Constitution, I, V.V. Giri,
\n\t  President of\tIndia, by  this Proclamation declare
\n\t  that a grave emergency exists whereby the security
\n\t  of India is threatened by external aggression.
\n\t   New Delhi,
\n\t  3rd December, 1971
\n\t\t\t      sd\/-<\/p><\/blockquote>\n
\t\t\t    V.V. Giri
\n\t\t\t    President
\n     The said  Proclamation was\t laid before both the Houses
\nof Parliament  on the 4th December, 1971. In the Lok Sabha a
\nresolution was\tmoved by  the Prime  Minister which  read as
\nfollows:\n<\/p>\n
\t       “I beg to move:\n<\/p><\/blockquote>\n
\t       “That the  House approves the Proclamation of
\n\t  Emergency  issued   under  Article   352  of\t the
\n\t  Constitution by the President on the 3rd December,
\n\t  1971. ”\n<\/p><\/blockquote>\n
\t  MR SPEAKER: Resolution moved:\n<\/p><\/blockquote>\n
\t       “That the  House approves the Proclamation of
\n\t  Emergency  issued   under  Article   352  of\t the
\n\t  Constitution by the President on the 3rd December,
\n\t  1971.” (See  Lok Sabha  Debates dated\t December 4,
\n\t  1971 Column 4).<\/p><\/blockquote>\n
      After  some discussion in the House the resolution was
\ncarried unanimously  and it  was  adopted.  (See  Lok  Sabha
\nDebates dated  December 4,  1971  column  37).\tSimilarly  a
\nresolution was adopted by the Rajya Sabha approving the said
\nProclamation of\t Emergency. (See  Rajya Sabha  Debates dated
\nDecember 4,  1971 column  46). The  said resolutions  of the
\nHouses of  Parliament were  no doubt  not published  in\t the
\nofficial Gazette.  The above  Proclamation of  Emergency was
\nrevoked by  the Vice-President\tacting as  President on\t the
\n27th March, 1977 by a Proclamation which read thus:\n<\/p>\n
439<\/span><\/p>\n
\t\t    “MINSTRY OF HOME AFFAIRS
\n\t\t\t  NOTIFICATION
\n\t  New Delhi, the 27th March, 1977
\n\t  G.S.R. 132  (E)-The following Proclamation made by
\n\t  the Vice-President acting as President of India is
\n\t  published for general information:\n<\/p><\/blockquote>\n
\t\t\t  PROCLAMATION
\n\t       In exercise  of the  powers conferred by sub-
\n\t  clause (a)  of clause\t (2) of\t Article 352  of the
\n\t  Constitution,\t I,  Basappa  Danappa  Jatti,  Vice-
\n\t  President acting  as President  of  India,  hereby
\n\t  revoke the  Proclamation of Emergency issued under
\n\t  clause (1) of that article on the 3rd of December.
\n\t  1971 and  published with  the notification  of the
\n\t  Government  of  India\t in  the  Ministry  of\tHome
\n\t  Affairs No.  G.S.R. 1789,  dated the 3rd December,
\n\t  1971.\n<\/p><\/blockquote>\n
\t  New Delhi,
\n\t  the 27th March, 1977
\n\t\t\t      sd\/-\n<\/p><\/blockquote>\n
\t\t\t    B.D.Jatti
\n\t       Vice-President acting as President”<\/p><\/blockquote>\n
     The above\tProclamation was  published in\tthe official
\nGazette Extraordinary  dated the  27th March,  1977. On\t the
\n25th day  of June,  1975 the  President of  India  issued  a
\nProclamation of\t Emergency as  he  was\tsatisfied  that\t the
\nsecurity of  India was\tthreatened by  internal disturbance.
\nThat Proclamation  was published  under a notification dated
\n26th June, 1975 in the official Gazette. It read thus:\n<\/p>\n
\t\t    “MINISTRY OF HOME AFFAIRS
\n\t\t\t  NOTIFICATION
\n\t  New Delhi, the 26th June, 1975
\n\t  G.S.R. 353 (B)
\n440<\/span>
\n\t       The following  Proclamation of  Emergency  by
\n\t  the President of India, dated the 25th June, 1975,
\n\t  is published for general information:\n<\/p><\/blockquote>\n
\t\t    PROCLAMATION OF EMERGENCY
\n\t       In exercise of the powers conferred by clause
\n\t  (1)  of   Article  352  of  the  Constitution,  I,
\n\t  Fakkhruddin Ali Ahmed, President of India, by this
\n\t  Proclamation declare that a grave emergency exists
\n\t  whereby the  security of  India is  threatened  by
\n\t  internal disturbance.<\/p><\/blockquote>\n
\n\t  New Delhi,\n\t  the 26th June, 1975\t   F.A. Ahmed,\n     President\n\t\t   No .11\/16013\/1\/75-S&P(D-11)\n\t\t      S.L. Khurana, Secy.\"\n<\/pre>\n
     A resolution  was moved  in the  Lok Sabha\t on July 21,
\n1975  seeking\tthe  approval\tof  the\t Lok  Sabha  to\t the
\nProclamation of Emergency dated the 25th June, 1975 and also
\nthe order  of the  President dated  29th June,\t1975 made in
\nexercise of the powers conferred by sub-clause (b) of clause
\n(4) of Article 352 of the Constitution (as it stood then) as
\napplying to the State of Jammu and Kashmir. The Proclamation
\nof Emergency  was also\tlaid on\t the table of the Lok Sabha.\n<\/p><\/blockquote>\n
That resolution\t was adopted  by the  Lok Sabha\t on July 23,
\n1975. (See  Lok Sabha  Debates dated  July 23,\t1975, column\n<\/p>\n
427). A\t resolution was\t moved seeking\tthe approval  of the
\nsaid Proclamation  of Emergency\t on 21st  July, 1975  in the
\nRajya Sabha  and it  was adopted  by the Rajya Sabha on 22nd
\nJuly, 1975.  (See Rajya\t Sabha Debates\tdated July  22, 1975
\ncolumn 124).  The  resolution  of  the\tLok  Sabha  and\t the
\nresolution of  the Rajya  Sabha approving  the\tProclamation
\ndated 25th  June, 1975\twere not  published in\tthe official
\nGazette. The  Vice-President acting as President revoked the
\nProclamation of\t Emergency dated 25th June,. 1975 by another
\nProclamation dated 21st March, 1977 which reads thus:\n<\/p>\n
\t\t    “MINISTRY OF HOME AFFAIRS
\n\t\t\t  NOTIFICATION
\n\t\t\t   XXXXXXXXXX
\n\t       G.S.R. 117\/E-The\t following Proclamation made
\n\t  by the
\n441<\/span>
\n\t  Vice-President acting\t as President  of  India  is
\n\t  published for A general information:\n<\/p><\/blockquote>\n
\t\t\t  PROCLAMATION
\n\t       In exercise  of the  powers conferred by sub-
\n\t  clause (a)  of clause\t (2) of\t article 352  of the
\n\t  Constitution,\t I,  Basappa  Danappa  Jatti,  Vice-
\n\t  President acting  as President  of  India,  hereby
\n\t  revoke the  Proclamation of Emergency issued under
\n\t  clause (1)  of that article on the 25th June, 1975
\n\t  and published\t with the  notification of the Govt.
\n\t  Of India  in the  Ministry of Home Affairs No. GSR
\n\t  353(b) dated the 26th June, 1975.\n<\/p><\/blockquote>\n
\t\t\t    B.D.Jatti
\n\t       Vice-President acting as President
\n\t  New Delhi,
\n\t  the 21st March, 1977.”<\/p><\/blockquote>\n
     Article 83(2)  of the  Constitution during the relevant
\ntime, that is, before the 42nd Amendment Act of 1976 read as
\nfollows:\n<\/p>\n
\t       “83. (1) …………………….
\n\t       (2) The\tHouse of  the People,  unless sooner
\n\t  dissolved, shall  continue for five years from the
\n\t  date appointed for its first meeting and no longer
\n\t  and the  expiration of  the said  period  of\tfive
\n\t  years shall operate as a dissolution of the House:\n<\/p><\/blockquote>\n
\t       Provided that  the said\tperiod may,  while a
\n\t  Proclamation, of  Emergency is  in  operation,  be
\n\t  extended by  Parliament by  law for  a period\t not
\n\t  exceeding one\t year at a time and not extending in
\n\t  any case  beyond a  period of six months after the
\n\t  proclamation has ceased to operate.”<\/p><\/blockquote>\n
     As the period of five years from the date appointed for
\nits first  meeting of  the then existing House of the People
\nwas about to come to a close Parliament enacted the House of
\nthe People  (Extension of  Duration) Act,  1976 (Act  30  of
\n1976) which received the assent of the President on the 16th
\nFebruary, 1976. Section 2 of that Act read thus:\n<\/p>\n
442<\/span><\/p>\n
\t       “2. Extension  of  duration  of\tthe  present
\n\t  House of  the People.\t The period  of\t five  years
\n\t  (being the  period for  which\t the  House  of\t the
\n\t  People may,  under clause (2) of article 83 of the
\n\t  Constitution, continue from the date appointed for
\n\t  its first  meeting) in  relation  to\tthe  present
\n\t  House of  the People shall, while the Proclamation
\n\t  of Emergency\tissued on  the 3rd  day of December,
\n\t  1971 and on the 25th day of June, 1975 are both in
\n\t  operation, be extended for a period of one year:\n<\/p><\/blockquote>\n
\t       Provided that  if both  or either of the said
\n\t  Proclamations cease  or ceases  to operate  before
\n\t  the expiration of the said period of one year.<\/p><\/blockquote>\n
     The Finance Act, 1976 was passed by the Lok Sabha after
\nits period  was extended  as stated  above and\tby the Rajya
\nSabha in the early part of the year 1976 and it received the
\nassent of  the President on the 27th May, 1976. Aggrieved by
\nthe levy  of the  rates of  income tax\tand of wealth tax as
\nprovided by  the Finance  Act, 1976 the petitioner has filed
\nthis writ petition.\n<\/p>\n
     Two important  questions which  arise for consideration
\nin this\t case are  (i)\twhether\t the  two  Proclamations  of
\nEmergency were\tvalidly issued or not? and (ii) whether each
\nof the\tsaid Proclamations  had ceased to be in force at the
\nexpiration of two months from the date on which each of them
\nwas issued  as the  resolutions of  the Houses of Parliament
\napproving each\tof  them  had  not  been  published  in\t the
\nofficial Gazette.  In Waman Rao & ors. Etc. Etc. v. Union of
\nIndia &\t Ors.,<\/a>[1981]2 S.C.R.1  the validity  of the 40th and
\nthe 42nd  Constitutional Amendments  had been  questioned on
\nsimilar grounds.  This Court while it left open the question
\nwhether the  issuance  of  the\tProclamations  of  emergency
\nraised a  justiciable issue,  on the  basis of\tthe material
\nplaced before  it came\tto the conclusion that they had been
\nduly issued.  Chandrachud, CJ  observed in the course of his
\njudgment in Waman Rao’s case (supra) at page 45 thus:\n<\/p>\n
\t       “Thus,  in   the\t first\tplace,\twe  are\t not
\n\t  disposed to  decide the question as to whether the
\n\t  issuance of  a proclamation  of emergency raises a
\n\t  justiciable issue.  Secondly, assuming it does, it
\n\t  is not  possible in the present state of record to
\n\t  answer that  issue one  way  or  the\tother.\tAnd,
\n\t  lastly,  whether   there  was\t  justification\t for
\n\t  continuing  the   state  of  emergency  after\t the
\n\t  cessation of hostilities with
\n443<\/span>
\n\t  Pakistan is  a matter\t on which  we find ourselves
\n\t  ill-equipped.\n<\/p><\/blockquote>\n
\t       Coming to  the two  Acts of 1976 by which the
\n\t  life of  the Lok  Sabha was extended, section 2 of
\n\t  the first  of these  Acts, 30\t of 1976,  which was
\n\t  passed on  February 16,  1976, provided  that\t the
\n\t  period of five years in relation to the then House
\n\t  of the  People shall\tbe extended  for a period of
\n\t  one year  “while  the\t Proclamation  of  Emergency
\n\t  issued on the 3rd day of December, 1971 and on the
\n\t  25th day  of June,  1975, are\t both in operation.”
\n\t  The second  Act of  Extension continues to contain
\n\t  the  same   provision.  It  is  contended  by\t the
\n\t  petitioners that  the proclamation  of December 3,
\n\t  1971 should have been revoked long before February
\n\t  16, 1976  and that  the proclamation\tof June\t 25,
\n\t  1975 was  wholly uncalled  for and  was mala fide.
\n\t  Since the  pre-condition on  which the life of the
\n\t  Parliament was extended is not satisfied, the Act,
\n\t  it is contended, is ineffective to extend the life
\n\t  of the  Parliament. We find it difficult to accept
\n\t  this\tcontention.   Both  the\t  proclamations\t  of
\n\t  emergency were  in fact  in operation\t on February
\n\t  16, 1976  when the first Act was passed as also on
\n\t  November 24,\t1976 when  the second  Act,  109  of
\n\t  1976, was  passed. It\t is not\t possible for  us to
\n\t  accept the  submission of the petitioners that for
\n\t  the various  reasons assigned\t by them,  the first
\n\t  proclamation must be deemed not to be in existence
\n\t  and that  the second\tproclamation must be held to
\n\t  have been  issued mala fide and therefore non-est.
\n\t  The evidence\tproduced before\t us is\tinsufficient
\n\t  for  recording  a  decision  on  either  of  these
\n\t  matters. It must follow that the two Acts by which
\n\t  the duration\tof the\tLok Sabha  was extended\t are
\n\t  valid\t and   lawful.\tThe   40th  and\t  the\t42nd
\n\t  Constitutional Amendments  cannot,  therefore,  be
\n\t  struck down on the ground that they were passed by
\n\t  a Lok Sabha which was not lawfully in existence.”<\/p><\/blockquote>\n
     The petitioner,  however, contended  before us that the
\nabove decision\thad been  rendered on  insufficient material
\nand that  if it\t was open to any person to place before this
\nCourt sufficient  material the\tCourt should  reconsider the
\nquestion of  the validity of the Proclamations of Emergency.
\nAssuming that  it is  possible for  this Court to reopen the
\ncase, the  petitioner has not been able to place before this
\nCourt any  new material on the basis of which it is possible
\nfor us to
\n444<\/span>
\nconclude that  the Proclamations  had  been  issued  by\t the
\nPresident without  applying his\t mind or  mala fide. We are,
\ntherefore, bound  by the  decision of  this Court  in  Waman
\nRao’s  case  (supra)  upholding\t the  validity\tof  the\t two
\nProclamations of  Emergency. The  only other  question which
\nrequires to  be considered  is whether\ton  account  of\t the
\nnon-publication in  the official  Gazette of the resolutions
\nof  the\t  two  Houses\tof  Parliament\t approving  the\t two
\nProclamations of Emergency, the Proclamations came to an end
\non the\texpiry of  the period of two months from the date of
\nissue thereof.\n<\/p>\n
     The fact  that the\t two Proclamations had been approved
\nby the\tresolutions passed  by both the Houses of Parliament
\nas set\tout earlier  in the  course of\tthis judgment is not
\ndisputed by  the petitioner.  What the\tpetitioner, however,
\ncontended before  the Court  was that  the resolutions which
\nwere almost  legislative in  character\tand  which  had\t the
\neffect of  converting  the  federal  State  into  almost  an
\nunitary State  by conferring  large powers  on\tthe  Central
\nExecutive and  Parliament as  provided in Article 353 and in
\nsome other  provisions of  the Constitution should have been
\ngiven wide  publicity  so  that\t people\t who  were  affected
\nthereby could  if they did not feel satisfied about the need
\nfor continuing the state of emergency either protest or make
\nappropriate representation.  The petitioner  urged that\t the
\ndemocratic  nature   of\t the  Constitution  which  had\tbeen
\nhighlighted in\tits Preamble  required that  wide  publicity
\nshould be  given to  the resolutions  of the  two Houses  of
\nParliament approving  any Proclamation of Emergency and that
\nthe only  means available  for giving such publicity was the
\npublication of\tresolutions in the official Gazette in which
\nthe  Proclamations  of\tEmergency  had\tbeen  published.  In
\nsupport of  his argument  the petitioner relied upon several
\nProclamations Issued  in India\tright from the days of Queen
\nVictoria on  many important  occasions which had been widely
\npublished in  the official  Gazette and\t by other  means. He
\nalso  drew   our  attention   to  the  Proclamations  issued
\nelsewhere which had been given similar publicity through the
\nofficial  Gazettes  of\tthose  countries.  The\tpetitioner’s
\nargument in  a nut  shell was that the resolutions passed by
\nParliament which  had the  effect of continuing the duration
\nof emergency  being of\tthe same  character as Proclamations
\nthemselves, should  have  been\tpublished  in  the  official
\nGazette\t and   in  the\t absence  of  such  publication\t the
\nProclamations of  Emergency should  be deemed to have become
\nineffective on\tthe expiry  of the period of two months from
\nthe issue thereof.\n<\/p>\n
     Article 352 of the Constitution does not prescribe that
\na Proclamation\tof Emergency  should  be  published  in\t the
\nofficial Gazette. The
\n445<\/span>
\n“Proclamation of  Emergency” is\t defined in  Article 366(18)
\nthus:\n<\/p>\n
\t       “366. (18)  “Proclamation of emergency” means
\n\t  a Proclamation  issued under clause (1) of Article\n<\/p><\/blockquote>\n
\t  352.”<\/p><\/blockquote>\n
     Article 366(19)  of the  Constitution defines a “public
\nnotification” thus: B
\n\t       “366.(19)  “public   notification”  means   a
\n\t  notification in  the Gazette\tof India, or, as the
\n\t  case may be, the Official Gazette of a State.”
\n     Wherever the  Constitution expressly requires a certain
\nnotification should  be published in the official Gazette it
\nhas stated  that the said notification shall be published in
\nthe  form   of\ta   public  notification.   By\tway   of  an
\nillustration, reference may be made to Article 364(1) of the
\nConstitution which reads thus:\n<\/p>\n
\t       “364.(1)\t Notwithstanding  anything  in\tthis
\n\t  Constitution,\t the   President   may\t by   public
\n\t  notification direct  that as from such date as may
\n\t  be specified in the notification-\n<\/p><\/blockquote>\n
\t       (a) any\tlaw made  by Parliament\t or  by\t the
\n\t       Legislature of a State shall not apply to any
\n\t       major  port   or\t aerodrome  or\tshall  apply
\n\t       thereto\tsubject\t  to  such   exceptions\t  or
\n\t       modifications as\t may  be  specified  in\t the
\n\t       notification, or\n<\/p><\/blockquote>\n
\t       (b) any\texisting law  shall  cease  to\thave
\n\t       effect in  any major port or aerodrome except
\n\t       as respects things done or omitted to be done
\n\t       before  the   said  date,  or  shall  in\t its
\n\t       application to  such port  or aerodrome\thave
\n\t       effect  subject\t to   such   exceptions\t  or
\n\t       modifications as\t may  be  specified  in\t the
\n\t       notification .. –\n<\/p><\/blockquote>\n<\/blockquote>\n
     Thus it  is seen  that any\t public notification  issued
\nunder Article 364(1) of the Constitution has to be published
\nin the\tofficial Gazette  as provided  by Article 366(19) of
\nthe Constitution.  A Proclamation  of Emergency being a very
\nimportant  event  affecting  public  life  has\talso  to  be
\npublished in  any manner  known to  the modern world and the
\npublication in the Official Gazette is one such mode. We are
\nof the\tview  that  if\tthe  Constitution  requires  that  a
\nparticular mode of publica-\n<\/p><\/blockquote>\n
446<\/span><\/p>\n
tion is\t necessary then\t such mode  must be  followed but if
\nthere  is   no\tmode   of  publication\t prescribed  by\t the
\nConstitution  then   it\t must\tbe   considered\t  that\t the
\nConstitution has  left the  method  of\tpublication  to\t the
\nauthority issuing the proclamation in order to make it known
\nto the\tmembers of  the public.\t In  the  instant  case\t the
\nProclamations  of  Emergency  have  been  published  in\t the
\nofficial Gazette.  The petitioner contended that even though
\nit was not expressly provided that the resolutions passed by
\nboth the  Houses of  Parliament should\tbe published  in the
\nofficial Gazette  they should  have been  published for\t the
\nvery same  reason which\t compelled the Government to publish
\nthe  Proclamations   in\t the   official\t Gazette.   In\t the
\nConstitution and  in the Rules of Procedure of the Houses of
\nParliament and\tof the\tStale Legislatures there are several
\nprovisions which provide for resolutions being passed by the
\nHouses of  Parliament or  the Houses  of State Legislatures.
\nThey are  among others\t(i) Article 123(2)(a)-Disapproval of
\nan ordinance;  (ii) Article  169-Abolition or  creation of a
\nLegislative Council;  (iii) Article 213(2)(a)-Disapproval of
\nan ordinance;  (iv) Article 249-Resolution of the Council of
\nStates empowering  Parliament to  legislate with  respect to
\nany matter in a State List in national interest; (v) Article
\n252-Resolutions of the House or Houses of State Legislatures
\nof two or more States to enable Parliament to legislate on a
\nState subject or adoption of a law made under Article 252 by
\na State\t Legislature which  had not  requested Parliament to
\nmake it before it was passed by the Parliament; (vi) Article
\n312-Resolution passed  by the  Council of  States creating a
\nnew All-India  Service; (vii)  Article 315(2)-Resolutions of
\nHouse or  Houses of  State Legislature of two or more States
\nto enable  Parliament to  provide a  common  Public  Service
\nCommission to  such States;  (viii) Article 320(5)-Amendment
\nor repeal  of Regulations  made\t by  the  President  or\t the
\nGovernor under\tthe proviso to Article 320(3); (ix) original
\nArticle 352(2)(c) and the present Article 352(4)-Approval of
\nProclamations of  Emergency by the Houses of Parliament; (x)
\nArticle 356(3)-Approval\t of Proclamation  made under Article
\n356(1). (xi)  Article 360(2)-Approval of the Proclamation of
\nfinancial emergency  by\t the  Houses  of  Parliament;  (xii)
\nProviso to Article 368-Resolutions to be passed by the State
\nLegislatures   approving   the\t constitutional\t  amendments
\napproved by  Parliament; (xiii)\t Article 371A(1)(a)-Power of
\nNagaland Legislative  Assembly to adopt an Act of Parliament
\nin respect of certain matters; (xiv) Articles 61, 67(b), 90,
\n94, 101(4),  124(4), 148(1),  190(4) and 217(1)(b)-relate to
\nremoval of high constitutional dignitaries from office; (xv)
\nArticle 3-State\t Legislature expressing\t its  views  on\t the
\nalteration of its boundaries of the State
\n447<\/span>
\nconcerned; (xvi)  Rule No. 234 to 239 of the Lok Sabha Rules
\nof  A\tProcedure  and\t Conduct  of   Business-relating  to
\nmodification of subordinate Legislation and (xvii) Privilege
\nMotions before\tthe  Houses  of\t Parliament  and  the  State
\nLegislatures relating  to punishment for contempt or removal
\nfrom membership\t on account  of highly unbecoming conduct of
\nmembers. In  all these\tcases any  resolution passed  by the
\nconcerned legislative  body has\t far-reaching  consequences.
\nThey are  not required\tto  be\tpublished  on  the  Official
\nGazette, even  though in some cases they are published, say,
\nwhere a Central law is adopted under Article 252 or a member
\nis removed  on the  ground of privilege etc.. They would not
\nbe treated  as\tineffective  merely  because  they  are\t not
\npublished in  the official  Gazette. They  are\tall  however
\npublished in  the Reports of the Houses of Parliament and of
\nthe Houses  of the  State Legislature  within  a  reasonable
\ntime.\n<\/p>\n
     The petitioner  relied on the decision of this Court in
\nHarla v.  the State  of\t Rajasthan,  [1952]  S.C.R.  110  in
\nsupport of  his contention.  In that  case  the\t facts\twere
\nthese. The  Council of\tMinisters  appointed  by  the  Crown
\nRepresentative for  the government and administration of the
\nJaipur State passed a Resolution in 1923 purporting to enact
\na law  called the Jaipur opium Act, but that law was neither
\npromulgated or\tpublished in  the Gazette  nor made known to
\nthe public. The Jaipur Laws Act, 1923, which was also passed
\nby the\tCouncil\t and  which  came  into\t force\ton  the\t Ist
\nNovember, 1924,\t provided by section 3(b) that the law to be
\nadministered by\t the court  of the  Jaipur  State  shall  be
\n……… “(b)all  the regulations  now in  force within the
\nsaid territories and the enactments and regulations that may
\nhereafter be  passed from  time to  time by  the  State\t and
\npublished in official Gazette.” In 1938 the Jaipur Opium Act
\nwas amended  by adding a clause to the effect that “it shall
\ncome into force from the Ist of September, 1924.” This Court
\nheld that  the mere passing of the resolution of the Council
\nwithout further\t publication or\t promulgation of the law was
\nnot sufficient\tto make\t the law  operative and\t the  Jaipur
\nopium Act  was not  therefore a\t valid law.  It further held
\nthat the  said Act  was not  saved by  section 3(b)  of\t the
\nJaipur Laws Act, 1923, as it was not a valid law in force on
\nthe Ist November, 1924, and the mere addition of a clause in
\n1938 that  it came  into force\tfrom 1924  was of no use. In
\nState of  Punjab v.  Sat Pal Dang & Ors.<\/a> [1969] 1 S.C.R. 478
\none of\tthe questions  which  arose  for  consideration\t was
\nwhether\t the   decision\t of   the  Governor  proroguing\t the
\nLegislative Assembly was required to be communicated to each
\nand every  member of  the Legislature before it could become
\neffective. This\t Court\theld  that  Article  174(2)  of\t the
\nConstitution which  enabled the\t Governor  to  prorogue\t the
\nLegislature did not indicate the manner
\n448<\/span>
\nin which the Governor was to make such orders known and that
\nhe could  follow the  well-established\tpractice  that\tsuch
\norders were  ordinarily made  known by a public notification
\nwhich meant  no more  than that\t they were  notified in\t the
\nOfficial Gazette of the State. There was such a notification
\non the\t11th March, 1968 and the prorogation must be held to
\nhave taken  effect from\t the date of publication. It was not
\nnecessary that\tthe order should reach each and every member
\nindividually before  it could become effective. In so far as
\nthe Governor  was concerned  it was open to him to publish a
\nnotification issued  by him  under  Article  174(2)  of\t the
\nConstitution in\t the Official  Gazette of the State and such
\npublication was\t considered to\tbe sufficient.\tBut the real
\nquestion in  this case\tis whether the resolutions passed by
\nboth  the   Houses   of\t  Parliament   approving   the\t two
\nProclamations of  Emergency had\t also to be published in the
\nofficial Gazette.  We shall  assume that  the resolutions of
\nboth the  Houses of  Parliament approving  a Proclamation of
\nEmergency should  be given  due publicity.  We have  already
\nshown above  that in  the Lok Sabha Debates and in the Rajya
\nSabha Debates the proceedings relating to the resolutions in
\nquestion had been published in the usual course. Rule 379 of
\nthe Rules  of Procedure and Conduct of Business in Lok Sabha
\nprovides for  the publication  of the  full  report  of\t the
\nproceedings of the Lok Sabha. It reads thus:\n<\/p>\n
\t       “379.  The   Secretary  shall   cause  to  be
\n\t  prepared a  full report  of the proceedings of the
\n\t  House at  each of  its sittings and shall, as soon
\n\t  as practicable, publish it in such form and manner
\n\t  as the Speaker may, from time to time, direct.<\/p><\/blockquote>\n
     Rule 382(1) of the said Rules provides for the printing
\nand publication of Parliamentary papers. It reads thus:\n<\/p>\n
\t       “382. (1) The speaker may authorise printing,
\n\t  publication, distribution  or sale  of any  paper,
\n\t  document or report in connection with the business
\n\t  of the House or any paper, document or report laid
\n\t  on the  Table or  presented  to  the\tHouse  or  a
\n\t  Committee thereof.\n<\/p><\/blockquote>\n
\t       (2) A  paper,  document\tor  report  printed,
\n\t  published, distributed  or sold  in  pursuance  of
\n\t  sub-rule (1) shall be deemed to have been printed,
\n\t  published, distributed or sold under the authority
\n\t  of the  House within\tthe meaning of clause (2) of
\n\t  Article 105 of the Constitution.”<\/p><\/blockquote>\n
     Similarly in  the Rules  of Procedure  and\t Conduct  of
\nBusiness of
\n449<\/span>
\nthe Council of States (Rajya Sabha) Rule 260 provides thus:\n<\/p>\n
\t       “260.   Preparation    and   publication\t  of
\n\t  proceedings  of   Council.-The   Secretary-General
\n\t  shall cause  to be  prepared a  full report of the
\n\t  proceedings of the Council at each of its meetings
\n\t  and shall,  as soon  as practicable, publish it in
\n\t  such form  and manner\t as the\t Chairman may,\tfrom
\n\t  time to time, direct.”\n<\/p>\n
     The Rules\tof Procedure  of  the  both  the  Houses  of
\nParliament are made under Article 118(1) of the Constitution
\nwhich reads thus:\n<\/p>\n
\t       “118.(1) Each  House of\tParliament may\tmake
\n\t  rules for regulating, subject to the provisions of
\n\t  this Constitution,  its procedure  and the conduct
\n\t  of its business.\n<\/p><\/blockquote>\n
\t       (2) Until  rules are  made under\t clause (1),
\n\t  the rules  of procedure  and\tstanding  orders  in
\n\t  force immediately  before the commencement of this
\n\t  Constitution with  respect to\t the Legislature  of
\n\t  the  Dominion\t  of  India  shall  have  effect  in
\n\t  relation   to\t   Parliament\tsubject\t   to\tsuch
\n\t  modifications\t and  adaptations  as  may  be\tmade
\n\t  therein by  the Chairman  of the Council of States
\n\t  or the  Speaker of the House of the People, as the
\n\t  case may be ………..”<\/p><\/blockquote>\n
      Section  57 of  the Indian Evidence Act, 1872 requires
\nthe Court  to take  judicial  notice  of  the  facts  stated
\ntherein. Clause\t (4) of\t section 57  of the  Indian Evidence
\nAct, 1872 reads thus:\n<\/p>\n
\t       “57. The\t Court shall take judicial notice of
\n\t  the fol lowing facts:\n<\/p><\/blockquote>\n
\t  ………………………………………….
\n\t  (4) The  course of proceeding of Parliament of the
\n\t  United Kingdom,  of the  Constituent\tAssembly  of
\n\t  India\t of   Parliament  and  of  the\tLegislatures
\n\t  established under  any laws  for the time being in
\n\t  force in a Province or in the State.”<\/p><\/blockquote>\n
     Section 56\t of the\t Indian Evidence  Act, 1872 provides
\nthat:\n<\/p>\n
\t       “56. No\tfact of\t which the  court will\ttake
\n\t  judicial notice need be proved.”<\/p><\/blockquote>\n
     Section 74\t of the\t Indian Evidence Act, 1872 refers to
\nthe docu-\n<\/p>\n
450<\/span><\/p>\n
ments  which   are  considered\t to  be\t  public  documents.
\nSub-clause (iii) of clause (1) of section 74 reads thus:\n<\/p>\n
\t       “74  The\t  following  documents\t are  public
\n\t       documents:\n<\/p><\/blockquote>\n
\t  (1) documents\t forming the  acts or records of the
\n\t  acts-(i) ………..\t(ii) ….  (iii)  of  public
\n\t  officers, legislative,  judicial and\texecutive of
\n\t  any part  of India or of the Commonwealth, or of a
\n\t  foreign country.”<\/p><\/blockquote>\n
     Section 78\t of the\t Indian Evidence Act, 1872 lays down
\nthe mode  of proof of certain public documents. The relevant
\npart of it reads thus:\n<\/p>\n
\t       “78. The\t following public  documents may  be
\n\t  proved as follows:\n<\/p><\/blockquote>\n
\t  (1)…………………………………….
\n\t  (2) The proceedings of the Legislatures,-\n<\/p><\/blockquote>\n
\t       by the journals of these bodies respectively,
\n\t  or by\t published Acts\t or abstracts,\tor by copies
\n\t  purporting  to   be  printed\t by  order   of\t the
\n\t  Government concerned.”<\/p><\/blockquote>\n
     The Lok  Sabha Debates  and the Rajya Sabha Debates are
\nthe journals  or the reports of the two Houses of Parliament
\nwhich are  printed and\tpublished by  them. The Court has to
\ntake judicial  notice of  the proceedings of both the Houses
\nof Parliament  and is  expected to  treat the Proceedings of
\nthe two\t Houses of Parliament as proved on the production of
\nthe  copies  of\t the  journals\tor  the\t reports  containing
\nproceedings of\tthe  two  Houses  of  Parliament  which\t are
\npublished by them.\n<\/p>\n
     In Niharendu  Dutt Majumdar v. The King Emperor, [1942]
\nF.C.R.38 the  Federal Court  of India  was  called  upon  to
\ndecide a  question almost  similar to the question which has
\narisen before  us in  this case. The facts of that case were
\nthese. Section\t102 of\tthe Government\tof India  Act,\t1935
\nauthorised the\tGovernor-General to  issue a Proclamation of
\nEmergency, the relevant part of which read as follows:\n<\/p>\n
\t       “102.(1)\t Notwithstanding   anything  in\t the
\n\t  preceding
\n451<\/span>
\n\t  sections of  this chapter, the Federal Legislature
\n\t  shall,  if   the  Governor-General   has  in\t his
\n\t  discretion declared  by Proclamation\t(in this Act
\n\t  referred to as a “Proclamation of Emergency”) that
\n\t  a grave  emergency exists  whereby the security of
\n\t  India is  threatened, whether\t by war\t or internal
\n\t  disturbance,\thave   power  to  make\tlaws  for  a
\n\t  Province or  any part\t thereof with respect to any
\n\t  of  the   matters  enumerated\t in  the  Provincial
\n\t  Legislative List  or to make laws, whether or not,
\n\t  for a\t Province or  any part thereof, with respect
\n\t  to any  matter not  enumerated in any of the lists
\n\t  in the Seventh Schedule to this Act.
\n\t  ………………………………………
\n\t  (2)……………………………………
\n\t  (3) A Proclamation of Emergency:\n<\/p><\/blockquote>\n
\t  (a) may be revoked by a subsequent Proclamation;\n<\/p><\/blockquote>\n
\t  (b)  shall   be  communicated\t  forthwith  to\t the
\n\t  Secretary of State and shall be laid by him before
\n\t  each House of Parliament;\n<\/p><\/blockquote>\n
\t  (c) shall  cease to  operate at  the expiration of
\n\t  six months,  unless before  the expiration of that
\n\t  period it has been approved by Resolutions of both
\n\t  Houses of Parliament.”<\/p><\/blockquote>\n
     The  Governor-General  had\t issued\t a  Proclamation  in
\nexercise  of   his  powers   under  section  102(2)  of\t the
\nGovernment  of\tIndia  Act,  1935  declaring  that  a  grave
\nemergency  existed,   whereby  the  security  of  India\t was
\nthreatened, by\twar on\tSeptember  3,  1939  on\t receipt  of
\ninformation from  His Majesty’s\t Government  in\t the  United
\nKingdom that  a state of war existed between His Majesty and
\nGermany and  on September  29, 1939 the Defence of India Act
\n1939 was  enacted. The\tappellant in that case was convicted
\nby the Additional Chief Presidency Magistrate at Calcutta on
\nthe 21st  July, 1941,  of offences  under sub-paragraphs (e)
\nand (k)\t of paragraph (6) of Rule 34 of the Defence of India
\nRules and  was sentenced  to be\t detained till the rising of
\nthe Court  and to  pay a  fine of  Rs.500, and in default to
\nundergo six  months’ rigorous  imprisonment. The  conviction
\nand sentence  were upheld  on appeal  by the High Court, and
\nthe appellant had preferred the above said appeal before the
\nFederal Court  against the  judgment of\t the High  Court  of
\nCalcutta. On appeal although the appellant was
\n452<\/span>
\nacquitted on  the ground  that the  facts established in the
\ncase did  not make  out the  offences for  which he had been
\npunished the  Federal Court  negatived the contention of the
\nappellant that\tthe Proclamation  of Emergency\tissued under
\nsection 102  of the Government of India Act, 1935 had ceased
\nto be  in force at the expiration of six months as there was
\nno proof of the fact that the said Proclamation of Emergency
\nhad been  approved by  the resolutions of both the Houses of
\nthe British  Parliament as required by clause (c) of section
\n102 of\tthe Government\tof India  Act, 1935. Before the High
\nCourt the  relevant volumes  of the  “Parliamentary Debates”
\nwhich contained\t the official  reports of the debates in the
\nHouses of  the British\tParliament  had\t been  produced\t and
\naccepted by  the  High\tCourt  as  proof  that\tthe  British
\nParliament had\tpassed the  necessary resolutions.  But\t the
\nappellant contended  that that\tproof was  not adequate\t and
\nthat only  copies of the official Journals of the two Houses
\nhad to be produced. The Advocate-General of Bengal contended
\nthat the  court was  not entitled  and indeed  ought to take
\njudicial notice of the fact that the resolutions were passed
\nand that  in any  event the  volumes  of  the  Parliamentary
\nDebates were  all that\twas necessary  in the  way of  legal
\nproof. Gwyer,  C.J., while rejecting the above contention of
\nthe appellant observed at pages 45-47 thus: E
\n\t       “In our\topinion the  volumes of the official
\n\t  Parliamentary\t Debates   afforded  adequate  legal
\n\t  proof of the passing of the two Resolutions by the
\n\t  Houses of  Parliament. Section  78 of\t the  Indian
\n\t  Evidence Act sets our certain categories of public
\n\t  documents and\t the manner  in which  they  may  be
\n\t  proved. The  first four  categories (as amended by
\n\t  the Adaptation  of Indian  Laws order,  1937)\t are
\n\t  these: “(1)  Act, orders  or notifications  of the
\n\t  Central Government  in any  of its departments, or
\n\t  of any  Provincial Government or any department of
\n\t  any Provincial  Government”; “(2)  Proceedings  of
\n\t  the Legislatures,  which may\tbe  proved  ‘by\t the
\n\t  journals  of\tthose  bodies  respectively,  or  by
\n\t  published  Acts   or\tabstracts,   or\t by  copies,
\n\t  purporting to\t be printed by orders or regulations
\n\t  issued by  Her Majesty or by the Privy Council, or
\n\t  by any  department of\t Her Majesty’s\tGovernment”;
\n\t  (3) Proclamations, orders or regulations issued by
\n\t  Her Majesty  of by  the Privy\t Council or  by\t any
\n\t  department of\t Her Majesty’s\tGovernment “(4)\t The
\n\t  Acts of  the Executive  or the  proceedings of the
\n\t  Legislature of  a foreign  country”, which  may be
\n\t  proved “by  journals published by their authority,
\n\t  or commonly received in that country as such”, and
\n\t  in certain other ways not here mate-\n<\/p>\n
453<\/span><\/p>\n
\t  rial. In our opinion the proceedings of Parliament
\n\t  fall under  either the  second or  fourth  of\t the
\n\t  categories set  out above. It may be said that the
\n\t  reference in the second category to proceedings of
\n\t  “the Legislatures”, following immediately upon the
\n\t  first category  which is  confined to acts, orders
\n\t  or notifications  of Governments in British India,
\n\t  is to\t be taken as a reference to the Legislatures
\n\t  of  British  India  only.  We\t find  it  difficult
\n\t  however  to\tbeliece\t that  s.  78  excludes\t any
\n\t  reference  whatsoever\t  to  the   proceedings\t  of
\n\t  Parliament, especially  when the executive acts of
\n\t  the Government  of the  United Kingdom are given a
\n\t  category  to\t themselves,  and   we\tshould\tfind
\n\t  ourselves   compelled,    if\t we   adopted\tthat
\n\t  construction,\t to   hold   that   proceedings\t  in
\n\t  Parliament fell  into the fourth category, that is
\n\t  to say,  “the proceedings of the Legislatures of a
\n\t  foreign country”;  but it  would perhaps  be\teven
\n\t  more difficult to suppose that Parliament can have
\n\t  been so  described by\t the Indian  Legislature  in
\n\t  1872.\t  The\texplanation   may   be\t that\t“the
\n\t  legislatures” to  which the second category refers
\n\t  are intended to include all the legislatures which
\n\t  have the  power to  make laws for British India or
\n\t  for any  part thereof;  but we  have no doubt that
\n\t  the present  case must  fall within either the one
\n\t  category or  the other  ..  …………  We\thave
\n\t  ascertained  by   inquiry  from   the\t Legislative
\n\t  Department of\t the Government\t of India  that\t the
\n\t  official Reports  of the  Council of\tState and of
\n\t  the Legislative Assembly which follow very closely
\n\t  the  form   and  manner  of  presentation  of\t the
\n\t  official Parliamentary Debates in England, are the
\n\t  only record  of the proceedings of the two Houses,
\n\t  no other record similar to that of the Journals of
\n\t  the two  Houses of  Parliament  in  England  being
\n\t  made. The  proceedings of  the Indian\t Legislature
\n\t  could clearly\t be proved  by tendering in evidence
\n\t  copies of  these official  Reports; and we can see
\n\t  no reason why the proceedings of Parliament cannot
\n\t  be  proved   by   an\t exactly   similar   English
\n\t  publication, issued with a similar authority.\n<\/p>\n
\t       Having regard  to the  view which  we take on
\n\t  this\tpoint,\t we  need  not\tconsider  the  other
\n\t  contention urged by the Advocate-General of Bengal
\n\t  that\tthe   passing  of  the\ttwo  Resolutions  by
\n\t  Parliament was  a matter  of which the Courts were
\n\t  entitled to take judicial notice.”\n<\/p>\n
454<\/span><\/p>\n
     We have  quoted in\t extenso the  relevant part  of\t the
\njudgment in  Niharendu Dutt  Majumdar’s, case  (supra)\twith
\nwhich we  respectfully agree  since we are concerned in this
\ncase with a similar question.\n<\/p>\n
      We  do not  also find much substance in the submission
\nof the\tpetitioner that\t the publication  in the  Lok  Sabha
\nDebates and  in the  Rajya Sabha Debates had been made after
\nabout two  months and  therefore until\tthe resolutions were
\npublished they\twere ineffective.  What is essential is that
\nthe resolutions\t approving  the\t Proclamation  of  Emergency
\nshould be  passed within  the period of two months. A little
\ndelay in  publishing the  proceedings would  not affect\t the
\nvalidity of  the resolutions. Let us take the case of an Act
\nof Parliament.\tUnder section  5 of the General Clauses Act,
\n1897 where  any Central\t Act is\t not expressed\tto come into
\noperation on  a particular  day\t then  it  shall  come\tinto
\noperation on  the day on which it receives the assent of the
\nPresident and unless the contrary is expressed a Central Act
\nshall be  construed as\tcoming into operation immediately on
\nthe expiration\tof the\tday preceding its commencement. Even
\nif there is some delay in the publication of the Central Act
\nin  the\t  official  Gazette,  its  operation  does  not\t get
\nsuspended until\t such publication  unless  the\tcontrary  is
\nexpressed in the statute itself. While on the face of it, as
\nobserved, by Sir C.K. Allen in his Law and orders (2nd Edn.)
\nat page\t 132, it  would seem  reasonable that legislation of
\nany kind  should not  be binding  until it has some how been
\n‘made known’ to the public, “that is not the rule of law and
\nif it  were, the  automatic cogency  of a  statute which has
\nreceived the  royal  assent  would  be\tseriously  and\tmost
\ninconveniently impaired”. The reasoning was that statutes at
\nleast received\tpublicity of  Parliamentary debate  and that
\ntherefore they\twere, or should be ‘known’. But this was not
\ntrue of\t delegated legislation,\t which did  not\t necessarily
\nreceive any  publicity in  Parliament or  in any  other way.
\nThat is\t the reason for the insistence of the publication of
\nsubordinate legislation\t in the\t official Gazette  before it
\ncan be\tbrought into  force. In\t so  far  as  the  Acts\t and
\nresolutions passed by the Houses of Parliament and the State
\nLegislatures are  concerned the\t very process of passing the
\nlaw or\tthe resolutions\t in the\t Houses of Parliament or the
\nState Legislatures  gives them\tample publicity. The reports
\nof the\tproceedings of Parliament and the State Legislatures
\nare widely  circulated. The newspapers, radio and television
\nare also  the other modern means which give publicity to all
\nActs and  resolutions of  Parliament and the Legislatures of
\nthe  States.   In  ancient  days  the  King’s  soldiers\t and
\nannouncers had\tto go  round the  realm to give publicity to
\nthe royal  proclamations. The present day world is different
\nfrom the ancient world. The publication in the Parliamentary
\nDebates though after
\n455<\/span>
\nsome short  delay is adequate publication of the resolutions
\nof Parliament  as there\t is no\trule which requires that the
\nresolutions should  be published  in the  official  Gazette.
\nHence mere  non-publication of the resolutions approving the
\nProclamations of  Emergency in\tthe official Gazette did not
\nmake them ineffective.\n<\/p>\n
     We are  satisfied that the resolutions of the Lok Sabha
\nand Rajya Sabha approving the two resolutions have been duly
\npublished in  the official  reports of\tthe  two  Houses  of
\nParliament.  This  ought  to  meet  the\t contention  of\t the
\npetitioner that\t any public  Act or resolution which affects
\npublic life should be given due publicity. We also hold that
\nthe production\tof the\tLok Sabha  Debates and\tof the Rajya
\nSabha Debates  containing the  proceedings of the two Houses
\nof Parliament  relating to  the period between the time when
\nthe resolutions\t were moved  in each  of the  two Houses  of
\nParliament and\tthe time  when\tthe  resolutions  were\tduly
\nadopted amounts\t to proof of the said resolutions. The Court
\nis required  to take judicial notice of the said proceedings
\nunder section  57 of  the Indian Evidence Act, 1872. We are,
\ntherefore,  of\tthe  view  that\t the  two  Proclamations  of
\nEmergency were\tkept in\t force by  virtue of the resolutions
\npassed by  the Houses  of Parliament  until they  were\tduly
\nrevoked by  the two  Proclamations which  were issued by the
\nVice-President acting  as President  of India  in  the\tyear
\n1977. Since the two Proclamations of Emergency were in force
\nwhen the  House of  the People\t(Extension of Duration) Act,
\n1976 (Act  30 of  1976) was  passed its\t validity cannot  be
\nquestioned. The\t Lok Sabha  passed  the\t Finance  Act,\t1976
\nduring the extended period of its duration and therefore the
\nvalidity of  Finance Act, 1976 also cannot be questioned. In
\nview of\t the foregoing\tthis petition  should fail and it is
\naccordingly dismissed. There will be no order as to costs.\n<\/p>\n
N.P.V.\t\t\t\t\tPetition dismissed.\n456<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Babu Rao Allias P.B. Samant vs Union Of India And Ors on 17 December, 1987 Equivalent citations: 1988 AIR 440, 1988 SCR (2) 431 Author: E Venkataramiah Bench: Venkataramiah, E.S. (J) PETITIONER: BABU RAO ALLIAS P.B. SAMANT Vs. RESPONDENT: UNION OF INDIA AND ORS. DATE OF JUDGMENT17\/12\/1987 BENCH: VENKATARAMIAH, E.S. (J) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-38970","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBabu Rao Allias P.B. Samant vs Union Of India And Ors on 17 December, 1987 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/babu-rao-allias-p-b-samant-vs-union-of-india-and-ors-on-17-december-1987\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Babu Rao Allias P.B. 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