Whether High Court has any jurisdiction to issue a mandamus upon the Legislature

(1966) AIR(Calcutta) 363 : 69 CalWN 484



( Before : B.N. Banerjee, J )




Matter No. 79 of 1965

Decided on : 26-02-1965

Constitution of India, 1950 – Article 154, Article 160, Article 176, Article 176(1), Article 194(3), Article 208(1), Article 212, Article 212(1), Article 226
Procedure and Conduct of Business (West Bengal Legislative Assembly) Rules – Rule 16, Rule 16(1), Rule 16(2)

Cases Referred

In the matter of: Under Article 143 of the Constitution of India, AIR 1965 SC 745
Counsel for Appearing Parties

A.P. Chatterjee, N. Gupta and A.P. Sirkar, for the Appellant; A.G., S.M. Bose and A.C. Mittra, for the Respondent


B.N. Banerjee, J.—The petitioner, a member of the West Bengal Legislative Assembly, feels that the first session of the West Bengal Legislature, in the year 1965-66, has not legally begun and has moved this Court, under Article 226 of the Constitution, for a Writ of Mandamus upon respondents Speaker and Deputy Speaker of the West Bengal Legislative Assembly directing them to forbear and refrain from presiding over or guiding or conducting the business of the said Assembly and also for a Writ of Mandamus upon the respondent Assembly directing it to refrain from conducting any business until such time as the Assembly be properly begun and also for a declaration that the proceedings of the respondent Assembly, in so far pretended to be held from February 8, 1965, be declared to be void, illegal and of no effect.

2. The circumstances, in the background of which the petitioner has moved this Court, are hereinafter recounted in brief. The State of West Bengal has two Houses of Legislature, namely, the Legislative Council and the Legislative Assembly. Article 176 of the Constitution provides:

“(1) At the commencement of the first session after each general election to the Legislative Assembly and at the commencement of the first session of each year the Governor shall address the Legislative Assembly or, in the case of a State having a Legislative Council, both Houses assembled together and inform the Legislature of the causes of its summons.

(2) Provision shall be made by the rules regulating the procedure of the House or either House for the allotment of time for discussion of the matter referred to in such address.”

Chapter V of the Rules of Procedure and Conduct of Business in the West Bengal Legislative Assembly (hereinafter referred to as the Rules of Procedure), framed under Clause (1) of Article 208 of the Constitution, contains rules for Governor’s address and messages to the Legislature, from which I need notice Rules 16, 17, 18, 19(2) and (3), 20, 22 and 23.

“16. (1) On the day and the hour appointed for the commencement and holding of the first session of the Assembly in each year not being the first meeting after a dissolution, or as soon thereafter as may be and in the case of a session after a dissolution on the first sitting of the Assembly after the election of the Speaker, the Governor will address the Assembly as required by Article 176 of the Constitution.

(2) After the delivery of the speech by the Governor, the Speaker shall report to the Assembly that the Governor had been pleased to make a speech and shall lay a copy of the speech on the Table.

3. On such report being made notice may he given of a motion that a respectful Address be presented to the Governor in reply to his speech expressing the thanks of the Assembly for the speech delivered by him.

4. The Speaker shall, in consultation with (he leader of the House, allot time for the discussion of the matters referred to 111 Governor’s Address.

17. On such day or days or part of any day, the House shall be at liberty to discuss the matters referred to in such Address on a Motion of Thanks moved by a member and seconded by another member

18. Amendment may be moved to such motion by way of adding additional words at the end but not otherwise, on such notice being given as the Speaker may determine.

19. (2) The discussion on the Address may be postponed in favour of a Government Bill or other Government business on a motion being made that the discussion on the Address be adjourned to a subsequent day to be appointed by the Speaker. The Speaker shall forthwith put the question, no amendment or debate being allowed,

(3) The discussion on the Address shall be interrupted in the course of a sitting by an adjournment motion under Rule 64.

20. The Chief Minister or any other Minister, whether he has previously taken part in the discussion or not, shall on behalf of the Government, have a general right of explaining the position of the Government at the end of the discussion.

22. The Address having been adopted with or without amendment shall be presented to the Governor by the Speaker in such manner as may be prescribed.

23. The Speaker shall report to the Assembly the Governor’s reply to the Address, if any.”

The two Houses of the West Bengal Legislature were summoned to meet at 3 P. M., on February 8, 1965, for the first session in the year 1965-66. That was the day for the address by the Governor under Article 176(1) of the Constitution. In paragraph 8 of the petition, it is alleged:

“That the said Governor did not address the Houses, and she left the said Assembly without her address being delivered to the said Houses as required under the provisions of Article 176(1) of the said Constitution. The Governor uttered only the words ‘Permit me to address the House”, ‘Silence. Please’.”

The circumstances under which the Governor left are not stated in the paragraph quoted above, but Mr. Arun Prokash Chatterjee, learned advocate for the petitioner, admitted, in his fairness, that there was some noisy disturbance created by some members of the Legislature, which made the Governor call for silence. He did not, however, admit that the disturbance was so great as to make it wholly impossible for the Governor to complete her address. What happened after the Governor had left is stated in paragraph 11 of the petition, which I set out below:

“That in spite of the fact that the said Governor did not deliver her address to the Houses at the commencement of the First Session on 8th February, 1965, the Speaker of the said Assembly took his chair after the said Governor had left the House without delivering her address, and reported that the said Governor had been pleased to make her speech and lay a copy of the alleged speech on the Table of the House.

3. According to the petitioner there was no address actually delivered by the Governor and the Houses were not informed of the cause of the summons by herself. There was, according to the petitioner, no opening of the Legislature for its first session in the year 1965-66 and there was no warrant for the said Assembly to proceed with any business. The Speaker of the Assembly had, as such, no power to take the chair and conduct the business. In paragraph 13 of the petition, it is stated:

“‘That the said Speaker insists on occupying the Chair in the said Assembly, and holding the Session and conducting the business of the House though he is debarred from doing so in view of the fact that until the Session is opened by the Governor with her delivered speech and until the causes of summons arc declared by the Governor, (which have not been done by the Governor), the House cannot proceed with any business.”

4. The circumstances alleged in the petition have the colour fullness of an unprecedented situation attached to them. Therefore, when Mr. Chatterjee moved the application on the first day, 1 adjourned the hearing and suggested to him that he should give notice of the” application to the Advocate-General, so that, if necessary, I may count upon his assistance as amicus curiae. Mr. Chatterjee gave such notice and the learned Advocate-General appeared as amicus curiae and greatly assisted me in making up my mind.

5. The first question that I need consider in this matter is whether this Court has any jurisdiction to issue a mandate upon the Legislature of the nature prayed for. Powers and privileges of the Parliament, of the Houses of Legislature and of the members and committees thereof are largely modelled on those of the House of Commons of the Parliament ol the United Kingdom. This appears from Clause (3) of the Articles 105 and 194 of the Constitution. In England, during certain periods of the English history, the Parliament and the judiciary became jealous of their respective spheres of power and on occasions joined issue in pitched combat. In his book on Law and Orders. (2nd Ed. pp. 168-169) Alien describes this hostility, in his usual pithy style, in the following language:

“In the old, unregenerate days the royal prerogative was the battle ground; the lion and the unicorn were lighting for the Crown, and it needed a Glorious Revolution to make peace between them. In more recent times the great contests have been fought over Parliamentary privilege, and it is little more than century since the issue was reduced to absurdity by an unedifying spectacle when the Courts denied an alleged privilege of the House of Commons, and the Legislature retorted by committing for Contempt the Patroclean Sheriff who was merely executing the judgment of the Court. Stockdale v. Hansard (1839) 9 AdE 1 and the Sheriff of Middlesex’s Case (1840) 11 Ad & E 273. There has been no such head-on collision since then, and every right minded person hopes that there never will be, but it is always possible, for our courts have never recognised Parliamentary proceedings as being wholly beyond judicial review. They have, for example, held themselves free to declare what is legislation and what is not and, while acknowledging that Parliament is absolute master of its own privileges, they have reserved the right to say whether an alleged privilege exists in fact and in law or merely in pretention.”

The importation of the privileges of the House of Commons to this country, under Arts. 105 and 194 of the Constitution, has not been without side-effects. Tt has enkindled in certain quarters a sort of enthusiasm for exercise of such privileges, without restrain or interference from authorities outside the Legislature. This type o� enthusiasm, in very recent times, resulted in a “head-on collision” between the Uttar Pradesh Legislative Assembly and the Allahabad High Court and the President of India had to refer the dispute between the two august bodies to the Supreme Court for opinion, in exercise of his powers under Article 1413 of the Constitution. In that Reference (being Reference No. 1 of 1964 unreported): (since reported in In the matter of: Under Article 143 of the Constitution of India, ). the Supreme Court pronounced the following majority opinion:

“(a) Our Legislatures have undoubtedly plenary powers, but these powers are controlled by the basic concepts of the written Constitution itself and can be exercised within the legislative fields allotted to their jurisdiction by the three Lists under the Seventh Schedule; but beyond the Lists, the Legislatures cannot travel. They can no doubt exercise their plenary legislative authority and discharge their legislative functions by virtue of the powers conferred on them by the relevant provisions of the Constitution; but the basis of the power is the Constitution itself. Be sides, the legislative supremacy of our Legislature including the Parliament is normally control led by the provisions contained in Part III of the Constitution. If the Legislatures step beyond the legislative fields assigned to them, or acting with in their respective fields, they trespass on the fundamental rights of the citizens in a manner not justified by the relevant articles dealing with the said fundamental rights, their legislative actions are liable to be struck down by courts in India. Therefore, it is necessary to remember that though our Legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution ****

(b) There is another aspect of this matter which must also be mentioned; whether or not there is distinct and rigid separation of powers under the Indian Constitution there is no doubt that the Constitution has entrusted to the judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. When a statute is challenged on the ground that it has been passed by a Legislature without authority, or has otherwise unconstitutionally trespassed on fundamental rights, it Is for the courts to determine the dispute and decide whether the law passed by the legislature is valid or not. Just as the legislatures are conferred legislative authority and their functions are normally confined to legislative function, and the functions and authority of the executive lie within the domain of executive authority, so the jurisdiction and authority of the Judicature in this country lie within the domain of adjudication. If tie validity of any law is challenged before the courts, it is never suggested that the material question as to whether legislative authority has been exceeded or fundamental rights have been contravened, can be decided by the Legislatures themselves. Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of this country and so, we feel no difficulty in holding that the decision about the construction of Article 194(3) must ultimately rest exclusively with the judicature of this country.

(c) In coming to the conclusion that the content of Article 194(3) must ultimately be determined by courts and not by the legislatures, we arc not unmindful of the grandeur and majesty of the task which has been assigned to the legislatures under the Constitution. Speaking broadly, all the legislative chambers in our country today are playing a significant role in the pursuit of the ideal of a Welfare State which has been placed by the Constitution before our country, and that naturally gives the legislative chamber a high place in the making of history today. The High Courts also have to play an equally significant role in the development of the rule of law and there can be little doubt that the successful working of the rule of law is the basic foundation of the democratic way of life. In this connection it is necessary to remember that the status, dignity and importance of these two respective institutions, the Legislatures and the Judicature, are derived primarily from the status, dignity and importance of the respective causes that are assigned to their charge by the Constitution. These two august bodies as well as the Executive, which is another constituent of a democratic State, must function not in antinomy nor in a spirit of hostility, but rationally, harmoniously and in a spirit of understanding within their respective spheres, for such harmonious working of the three constituents of the democratic State alone will help the peaceful development, growth and stabilisation of the democratic way of life in this country.

(d) The next question which we ought to consider is was it the intention of the Constitution to perpetuate the dualism which rudely disturbed public life in England in the 17th, 18th and 19th Centuries? The Constitution makers were aware of several unhappy situations which arose as a result of the conflict between the Judicature and the Houses of Parliament and they knew that these situations threatened to create a deadlock in the public life of England. When they enacted Article 194(3), was it their intention to leave this conflict at large, or have they adopted a scheme of constitutional provisions to resolve that conflict ? The answer to this question would obviously depend upon a harmonious construction of the relevant provisions of the Constitution itself.

Let us first take Article 226. This Article confers very wide powers on every High Court “throughout the territories in relation to which it exercises Jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari, or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose.” It is hardly necessary to emphasise that the language used by Article 226 in conferring power on the High Courts is very wide, Article 12 defines the “State” as including the Legislature of such State, and so, prima facie the power conferred on the High Court under Article 226(1) can. in a proper case, be exercised even against the Legislature. If an application is made to the High Court for the issue of a writ of habeas corpus, it would not be competent to the House to raise a preliminary objection that the High Court has no jurisdiction to entertain the application because the detention is by an order of the House. Article 226(1) read by itself, does not seem to permit such a plea to be raised. Article 32 which deals with the power of this Court puts the matter on a still higher pedestal; the right to move this Court by appropriate proceedings for the enforcement of the fundamental rights is itself a guaranteed fundamental right, and so, what we nave said about Article 226(1) is still more true about Article 32(1).

* * * * * * * *
(e) There are two other articles to which reference must be made, Article 208(1) provides that a House of the Legislature of a State may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business. This provision makes il perfectly clear that if the House were to make any rules as prescribed by it, those rules would be subject to the fundamental rights guaranteed by Part III. In other words, where the House makes rules for exercising its powers under the falter part of Article 194(3), those rules must be Subject to the fundamental rights of the citizens.

Similarly, Article 212(1) makes a provision which is relevant, It lays down that the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. Article 212(2) confers immunity on the officers and members of the Legislature in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. Article 212(1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the Legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality, if the impugned procedure is illegal and unconstitutional, it would be open to be scrutinized in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular.”

6. I need not quote more from the above opinion. I have to hold, in respectful agreement with the majority opinion delivered by the Supreme Court, that it it can be established that the proceedings inside the Legislative chamber have become illegal or unconstitutional, by reason of the happenings stated in the petition, this Court is competent to issue the mandate as prayed for.

7. I now turn to examine the effect of what happened on February 8, 1965. How a new session of the Parliament in the United Kingdom is to be opened is described in May’s book on Parliamentary Practice (17th Ed, pp. 289-291) in the following language:

“In every session but the first of a Parliament, as there is no election of a Speaker, nor any general swearing of Members, the session is opened at once by the Queen’s speech, without Liny preliminary proceedings in either House. Until the causes of summons are declared by the Queen, either in person, or by commission, neither House can proceed with any public business: but the causes of summons, as declared from the Throne, do not bind Parliament to consider them alone, or to proceed at once to the consideration of any of them.

Both Houses assemble on the day and immediately before the hour appointed for the delivery of the Queen’s Speech. In the Commons prayers are said before the Queen’s speech, but in the Lords usually not until their second meeting, later in the day. The Speaker, after prayers, sits in the Clerk’s chair until Black Rod approaches the door, when he proceeds to his own chair lo receive him. This form is observed, because no business can be transacted until Parliament has been opened by the Crown.***** When the Queen meets Parliament in person, she proceeds in stale to the House of Lords, where, seated on the Throne, adorned with her Crown and regal ornaments, and attended by her officers of state (all the lords, being in their robes, and standing until Her Majesty Commands them to be seated), she commands the gentleman usher of the Black Rod, through the Lord Great Chamberlain, to let the Commons know it is Her Majesty’s pleasure they attend her immediately in this House. “The usher of the Black Rod goes at once to the door of the House of Commons which he strikes three times with his rod; and, on being admitted, he advances up the middle of the House towards the table, making three obeisance’s to the chair, and says” Mr. Speaker, The Queen Commands this honourable House to attend Her Majesty immediately in the House of Peers.” The Speaker, with the House, immediately goes up to the bar of the house of Peers; upon which the Queen reads her speech to both Houses of Parliament, from a printed copy, which is delivered into her hands by the Lord Chancellor, kneeling upon one knee** *********

When the Queen is not personally present, the causes of summons are declared by the lords commissioners. The usher of the Black Rod is sent, in the same manner, to the Commons, and acquaints the Speaker that “the lords commissioners desire the immediate attendance of this honourable House in the House of Peers, to hear the commission read” and when the Speaker and the House have reached the bar of the House of Peers, the Lord Chancellor reads the royal speech to both Houses.****** *******

When the speech has been delivered the House of Lords is adjourned during pleasure. The Commons retire from the bar and, returning to their own House, pass through it, the mace being placed upon the table by the Sergeant and the House reassembles at halt-past two. When the Houses are resumed in the afternoon, the main business is for the Lord Chancellor in the Lords, and the Speaker in the Commons, to report the Queen’s Speech. In the former House, the speech is read by the Lord Chancellor, and in the latter by the Speaker, who states that, for greater accuracy, he has obtained a copy.”

8. According to the view expressed by May, in the quotation above, no business can be transacted until the Parliament has been opened by the Crown. A similar view is to be found in Halsbury’s Laws of England (3rd Ed. Vol. 7 Article 511 page 238) from which I quote the relevant extract;

“On the assembling of a new Parliament in pursuance of the royal writs, or at the commencement of a new session of an already existing Parliament after prorogation, the sovereign must meet the two Houses either in person or by representatives; otherwise there can be no legal beginning of a new Parliament, or session of an an existing Parliament, except in case of the demise of the Crown.”

The procedure (o be followed in this country in summoning Slate Legislatures appears in clause (1) of Article 174 which reads as follows:

“174 (1) The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.”

The manner in which summoning shall be made is provided for in Rule 3 of the Rules of Procedure, which is set out below;

“Whenever it appears to the Governor that the Assembly should be summoned-

(a) he shall cause a notification to be published in the Gazette, appointing the day, hour and place for a meeting of the Assembly, and

(b) the Secretary shall send to each member a summons to attend the meeting.”

After the two Houses of West Bengal Legislature assemble together on the date, time and place fixed by the summons, for its first session each year, the Governor shall address the members so assembled and inform them of the causes of the summoning. This is what Article 176 of the Constitution envisages.

9. It is not disputed, in the present case, that the West Bengal Legislature was duly summoned to meet on February 8, 1965. It is not disputed that the Governor came to address the joint session of the two Houses of the West Bengal Legislature, It is admitted that the Governor began her address with the words “Permit me to address the House”. Thereafter, Mr. Chatterjee admits, there was some disturbance, and the Governor called for silence. Unable to obtain the desired silence the Governor left the House without completing her address. The questions for my consideration are-

(a) Whether under Article 176, the Governor shall orally address the Legislature arid inform the members of the causes of the summons or whether the causes of the summons may be made known to them by publication of a written address?

(b) Is the delivery of such an address merely directory or absolutely mandatory?

(c) Whether failure on the part of the Governor to deliver or to complete delivery of the address contemplated under Article 176 invalidates the subsequent sitting of the Legislature?

(d) Whether the laying of the undelivered or partly delivered written address on the table may cure the defect?

(e) What is constitutional significance of the Governor leaving the Legislature being unable or unwilling to deliver the address.

An address may, without more, be an oral address or a written address. But reading Article 176 of the Constitution with Sub-rules (1) and (2) of Rule 16 of the Rules of Procedure, hereinbefore set out, I have little doubt that the address by the Governor, under Article 176, shall be by delivery of a speech, may be by reading out from a prepared text. Rule 16(2) specifically states that after the address the Speaker shall report “that the Governor has been pleased to make a speech”. A speech means that which is spoken, that is to say an oration. I, therefore, hold that under Article 176, the constitutional procedure is that the Governor shall deliver an oral address, may be from a prepared text, informing the members of the Legislature of the causes of the summoning of the first session of the year.

10. While I express the above view, I am not unmindful of the difficulties that such an interpretation may entail. The first session of the Legislature in each year, is an important session, being usually the budget session. If such a session does not start well ahead of the beginning of the next financial year, great administrative difficulties may follow. Now, a Governor, after all a human being, may become ill or may be incapacitated by other causes from delivering the address verbally under the provisions of Article 176. In order to safeguard against such contingencies, in so far as the President of India is concerned (who also is to address the first “session of the Parliament each year, under Article 57), Article 65(2) of the Constitution makes the following provision:

“When the President is unable to discharge his functions owing to absence, illness or any other cause, the Vice President shall discharge his functions until the date on which the President resumes his duties,”

There is no Deputy-Governor to discharge the functions of the Governor, if the Governor becomes unable to do so owing to absence, illness or other causes. Therefore an interpretation of Article 176, to the effect that the Governor shall personally deliver an oral address to the Legislature, at its first session every year, might create a constitutional deadlock but for the provision contained in Article 160, which is couched in the following language:

“The President may make such provision as he thinks fit for the discharge of the functions of the Governor of a State in any contingency not provided for in this Constitution.”

Therefore, if the Governor becomes unable to deliver the address, as required under Article 176, the President may make some other provision for the discharge of the aforesaid functions of the Governor.

11. I have to consider, in the next place, whether the address contemplated under Art, 176 is an idle or ceremonial formality or whether the provision for address is mandatory in character and not merely directory. The address cannot be an idle or a ceremonial formality, because the Constitution lays down the purpose for the address, namely, informing “the Legislature of the causes of its summons”. The speech is to announce the executive policies and the legislative programme and since the first session every year is also the budget session, the speech is expected to call attention of the members to the requirements of the Government for supplies to carry on the administration. Clause (2) of Article 176 which I have already set out, provides for discussion of the matters referred to in such address. So also do Rules 16, 17, 18, 19(2), 20 21, 22 and 23 of the Rules of Procedure. Such an informative speech, which serves as the spring board for discussion in the legislature, either for approval or disapproval of administrative policies cannot be an idle formality or a mere ceremony But even then the question remains whether the provision in Article 176, as to delivery of address by Governor, is to be treated as directory 01 mandatory. The language employed in Article 176 no doubt is “The Governor shall address”. But the use of the word ‘shall’ does not by itself lead to the inevitable conclusion that the provision is mandatory in character. In the case of Montreal Street Rly. Co. v. Normandin 1917 AC 170: (AIR 1917 PC 142) the Privy Council observed:

“The question whether the provisions in a Statute are directory or imperative has frequently arisen in this country, but it has been said that no general rule can be laid down and in every case the object of the statute must be looked into.”

12. Also in Grawford on Statutory Construction the following passage appears:

“the question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these arc to be ascertained not from the phraseology of the provision, but also by considering its nature, its design and its consequences, which would follow by construing it one way or the other”.

Now, the nature and purpose of the address I have hereinbefore indicated and need not repeat. Under Article 168, the Legislature in West Bengal is to consist of the Governor and two Houses of Legislature, namely, the Assembly and the Council. Article 176 requires that the Governor, who is the repository or the executive power of the State, shall address both the Houses and keep the members informed about the executive policies and legislative programme of State administration. The consequence of non-delivery of such an address is that the members of the Legislature remain uninformed and not knowing the administrative policies and programmes may be considerably hampered in their legislative debates and budgetary criticisms. Article 178 therefore casts upon the Governor the Constitutional duty of delivering a special address at the annual opening session of the Legislature and the provisions for such address, in Article 176, should not be interpreted as merely directory. The purpose of such an address might have been more or less served by the distribution, to the members of the Legislature, of copies of printed address by the Governor, But the Constitution, in its wisdom, has provided for delivery of a speech by the Governor in person, so that the informative speech may be discussed on a motion of ‘respectful address’ to the Governor, expressing the views of the Legislature on the address. I am not prepared to minimise the value of such a constitutional procedure and to characterise it us merely directory.

13. I have already quoted a passage from May on Parliamentary Practice (pp. 289-90) which goes to indicate that no business can be transacted until Parliament has been opened by the Crown with a speech. Article 511 in Halsbury’s Laws of England (Third Edition) Vol 7 also expresses the view that there can be no legal beginning of a new Parliament until sovereign meets the two Houses either in person or by representative. In my opinion, the Legislature in this Country cannot ordinarily be said to have met until the mandatory preliminaries under Article 176 have been gone through. This is also the view of the Orissa High Court expressed in Saradhakar v. Speaker, Orissa Legislative Assembly AIR 1952 Ori 234 If the Legislature has not met that is to say legally assembled for the purpose of transacting business, no business can be transacted and sittings of the Legislature before it has legally met, are invalid sittings. H that was not so, the members might as well them selves meet in the session of the Legislature-without being at all summoned by the Governor, and pass laws Articles 174 to 176 prescribe the constitutional procedure by which the Legislature is to meet and to transact business. II cannot otherwise meet, continue to sit and transact legislative business,

14. But in the present context much of the above discussion is of academic interest aS I have already stated, in the instant case, the Legislature was duly summoned and the two Houses of Legislature assembled in a joint session on 8-2-1965. The Governor came to deliver her address, as required under Art 176 She began her address, felt disturbed by noises, asked for silence and then left the Assembly Hall, possibly under the impression that no useful purpose would be served by speaking where she cannot be heard. I say ‘possibly’ because it doss not appear under what circumstances she left, apart from what I have stated. After the Governor left, the speaker laid a copy of her address on the table of the House as required by Rule 16(2) of the Rules of Procedure. The question is whether the provisions of Article 176 were substantially complied with in the aforesaid circumstances.

15. Now laying on the table is a well-known device for calling attention of the Legislature. Some statutes provide that subordinate legislation, namely rules, schemes or orders made under the statute, shall be laid before the Parliament or State Legislatures as the case may be and may require affirmative or negative resolution on such subordinate legislation. In many cases there is no provision for having any resolution at all and the statute is content by merely providing that the subordinate legislation shall be laid on the table of the House concerned. There are other statutes which provide for a formal resolution. Rules of Procedure of the West Bengal Legislative Assembly provide for a respectful address” or resolution on the Governor s address. Thus laying on the table is a technique for producing awareness of Parliament or Legislatures of States on subordinate Legislation, Governor’s address and other legislative papers.

16. By laying a copy of the Governor’s address on the table, the object of the address was substantially served and the members could become aware of the contents of the address. But can laying on the table be a substitute for delivery of the address by the Governor? The answer should ordinarily be in the negative. But the negative answer admits of an exception. Where the Constitution casts a duly upon the Governor and where the Governor makes attempt to perform that duty but fails to do so, in the prescribed manner, although does so in substance (in the instant case the written text of address being laid on the table of the Assembly), the procedural failure should not be over-emphasised and the duly should not be treated as wholly unperformed with consequences of non-performance following it. Tn the facts of the instant case. I hold that the constitutional duty of the Governor was substantially performed, although the performance was attended by a good deal of irregularity in procedure. The consequence of non-delivery of the whole of the address, by word of the mouth, was not such as rendered the subsequent proceedings inside the Legislative Chamber illegal but merely resulted in procedural irregularity. Such an irregularity cannot be called in question under Clause (2) of Article 212, which is couched in the following language:

“No officer or member of the Legislature of A State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers.”

So that this judgment may not be misunderstood, I desire to make the position clear- The provisions of Article 176 are mandatory. Unless the provisions are complied with, that is to say, unless the Governor delivers a speech informing the Legislature of the causes of the summons, the Legislature cannot meet to transact legislative business. A Governor cannot decline to deliver a speech and thus refuse to perform a constitutional duty. If a Governor is incapacitated from delivering a speech himself, the President may make other provisions, under Article 160 of the Constitution, for performance of that constitutional function of the Governor. But when the Governor makes due attempt to perform the duty under Article 176 but fails and makes up the failure by publication of the address to the members of the Legislature by a well-known method, namely, by laying the address on the table or the House, the duty is merely irregularly performed and the validity of such performance shall not be called in question by reason of such irregularity alone. But if a Legislature meets and transacts legislative business, without the preliminary of an address by the Governor, when required tinder Article 176, its proceedings are illegal and invalid and may be questioned in a Court of Law.

17. There is one reason, which has induced me not to place much emphasis on the irregularity. Unless there grows a constitutional convention that the Governor’s address shall be heard with attention, respect and ceremony due to the constitutional head of the State, there may be occasions when members of the Legislature may indulge in loud shoutings and unruly behaviour, when the Governor conies to address. If the shoutings be loud enough or the behaviour sufficiently unruly, a Governor may not be able to begin or to finish the address, due to human limitations, and may have to think of other modes of publication of the address. To hold that Legislature must not be deemed to have met when a (Governor is unable to begin or to finish the address, under Article 176, and is compelled otherwise to publish the address, is to put a value on such disturbances which they do not deserve. In that event, a sufficiently noisy opposition may prevent the Governor from addressing the Legislature, under Article 176, by loud shoutings and thus make it impossible for the Legislature to meet for the budget Session. I am unwilling to reward disturbances with such a premium. In the facts of the instant case (and I confine my sell to the facts of this case only), the Governor must be deemed to have delivered her address by making a beginning, by trying to go on and, therein failing, by making the text of her speech otherwise made known to the members of the Legislature under the provisions of Rule 16(2) of the Rules of Procedure. This was irregular but no more than that, 1 hold that her constitutional duty, under Article 176, was substantially though irregularly performed.

18. Lastly, I need notice that it is not the grievance of the petitioner that he does not know or has no means of knowing the purpose of the summoning of the Legislature. He has no substantial grievance himself and has no reason to wonder at the contents of the address by the Governor. His only desire appears to me to be to uphold the majesty of the Constitution by emphasising upon constitutional procedure. In the view already expressed by me, I am unable to aid him.

19. Before I finish, I desire to take note of another aspect of the matter. Members of the Legislature sometimes walk out of the I legislative Chamber during the Legislative session. They do so to register some sort of Parliamentary protest against something happening within the Chamber. A Governor leaving the Legislative Chamber, as was done in the present case, is, so far as I have come to know, unprecedented. The constitutional significance of such an unceremonial departure is difficult to imagine. In the Governor is vested the executive power of the State (Article 154). The Legislature of West Bengal consists of the Governor and two Houses (Article 160). For her to leave a joint assemblage of the two Houses, summoned by herself, in the manner and in the circumstances alleged, may not be without significance over her constitutional responsibilities and her constitutional control over the Legislature of the State. Generally speaking if the Governor, in whom the executive power of the State is vested becomes unable to control disturbances inside the legislature and has either in despair or in displeasure to resort to irregularities in the matter of discharge of constitutional duties and responsibilities, I shudder to think of the fate of the constitutional Government in this country. This is not the occasion for speaking at length on the significance of such an unprecedented state of affairs. In this case T can only hope that what has happened will never happen again.

20. The learned Advocate General, appealing as amicus curiae, pointed out several defects 11 the application, namely, (1) the West Bengal Council was not made a party to the application and as such the application was bad for nonjoinder of a necessary party, (2) West Bengal Legislative Assembly, was not an incorporation is an Assembly and could not be sued as such and (3) the State of West Bengal was unnecessarily impleaded and the application was bad For misjoinder of party. Were I inclined to issue 1 Rule in this matter, I might have given an opportunity to the petitioner to mend the defects. if they were defects at all.

21. Since I am of the opinion that the West Bengal Legislative Assembly has not been illegally functioning, I decline to issue a Rule as prayed for. This application stands dismissed.

22. I express my appreciation of the able assistance rendered by Mr. Arun Prakash Chatterjee, learned Advocate for the petitioner, and thank the learned Advocate General for helping me as amicus curiae.

Decided on : 26-02-1965


Categories: CIVIL, Parliamentary Practice

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