IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Chhabildas Mehta, M.L.A & Ors. …Appellant(s)
The Legislative Assembly, Gujarat State & Ors. … Respondent(s)
Date : 2/05/1970
P.N. Bhagwati, C.J.
1. This petition raises issues of great constitutional importance. Though various reliefs are claimed in the petition, the main question which arises for consideration in the petition is whether a certain Resolution passed by the Legislative Assembly of the Gujarat State by a majority of members present and voting for adjournment of the Assembly sine die is void as being outside the power of the Assembly. The facts giving rise to the petition are few and undisputed and they may be gathered from the transcript of the proceedings of the House produced before us by the Assembly at the time of the admission of the petition.
2. The petitioners are Members of the Gujarat Legislative Assembly belonging to the opposition. The present ruling party in the Assembly is Congress (Organisation). The Assembly was summoned by the Governor to meet on 18th February 1970 in exercise of his power under Article 174 of the Constitution and according to the schedule fixed by the Speaker, the Assembly Session was to continue upto 8th April 1970. The Government business was first taken up by the Assembly and it occupied the time of the House from 18th February 1970 to 28th March 1970. No private members business was transacted in the Assembly upto that date since the days allotted by the Speaker for private members’ business were all after 28th March 1970. On 27th March 1970 there was a meeting of the Business Advisory Committee which is a Committee constituted by the Speaker under Rule 190 of the Gujarat Legislative Assembly Rules made under Article 208(1) of the Constitution. This meeting was convened at the instance of the Minister for Parliamentary Affairs and it was presided over by the Speaker. At this meeting a proposal was made that the Business Advisory Committee should recommend to the Assembly that the House be adjourned sine die after completing the business on 28th March 1970. The third petitioner who is a member of the Business Advisory Committee and who was present at this meeting opposed the proposal and in protest against it, the third petitioner and other Members of the Business Advisory Committee who belonged to the Opposition, walked out of the meeting. The Business Advisory Committee thereafter passed the following Resolution on the same day, namely 27th March 1970;
That the House be adjourned sine die on 28th March 1970 after the business of the House is over and that the pending business for the session be carried forward when the House reassembles.
on 28th March, 1970 a Resolution was moved in the Assembly by the Minister for Parliamentary Affairs that the House agrees with the above recommendation made by the Business Advisory Committee. When this Resolution was moved, a point of order was raised by petitioner No. 4. It was based on a three-fold objection. The first objection was that by virtue of Rule 9 of the Gujarat Legislative Assembly Rules, the Speaker alone had the power to adjourn the House sine die and such power did not belong to the Assembly. Secondly, it was urged, that the recommendation placed before the House for acceptance was not within the scope and ambit of the powers of the Business Advisory Committee. And lastly, it was said that if the Resolution was accepted, it would violate the constitutional right of the members of the Assembly, presumably the right of freedom of speech given under Article 194(1) of the Constitution. All these objections were negatived by the Speaker and the point of order raised by petitioner No. 4 was over-ruled by him. There was an amendment to the Resolution proposed by Mr. H.M. Patel, another member belonging to the Opposition to the effect that the Resolution be referred back to the Business Advisory Committee and the amendment was, therefore, first put to vote. The amendment was rejected by a majority of the House. The Resolution was then put to vote and here we may reproduce from the transcript of the proceedings what happened. The Speaker said: “The question is whether this House agrees with the recommendations of the Business Advisory Committee. Those who are in favour say ‘Yes: those who are against say ‘No’. There is majority of those who say ‘Yes’. The motion is accepted”. With this the proceedings of the House terminated and the Speaker left the chair.
3. Though the wording of the Resolution was that the House agrees with the recommendation of the Business Advisory Committee, what the Resolution in effect and substance sought to achieve was adjournment of the House sine die since the recommendation of the Business Advisory Committee was that the House be adjourned sine die on 28th March 1970. The petitioners claimed that the House had no power by a majority of members present and voting to adjourn itself sine die and the Resolution passed by the House was, therefore, null and void and the Assembly did not stand adjourned. The petitioners accordingly filed the present petition challenging the validity of the Resolution and seeking inter alia an appropriate direction, order or writ declaring that the Resolution is null and void, the Assembly is not adjourned sine die on 28th March 1970 and the sitting of the Assembly is continuing and directing the Assembly to continue its sitting and the Speaker to arrange for the continuance of the sitting. The petition was lodged on 30th March 1970 and it came up for admission before a Division Bench consisting of P.D. Desai J. and myself on 31st March 1970. On that day we issued notice to the respondents to show cause why the petition should not be admitted. The notice was made returnable the next day. On 1st April 1970, the learned Advocate General appeared on behalf of the Assembly and the Speaker who are respectively respondents Nos. 1 and 2 and the learned Government Pleader appeared for the third respondent, namely, the Government. The learned Advocate General submitted that the Court had no jurisdiction to entertain, try and decide any of the issues raised in the petition because: (1) each issue formed the subject matter of a ruling given by the Speaker and the ruling of the Speaker being immune from scrutiny by the Court under Article 212(2), no issue could be raised before the Court which involved examination of the correctness of the ruling of the Speaker; and (2) the petition sought to impeach or question a proceeding in the House of the Assembly but it was a privilege of the Assembly inherited from the House of Commons under Article 194(3) that its proceedings cannot be questioned or impeached outside the House and the Court was, therefore, not entitled to examine the validity of the proceeding. The argument occupied most of the time of the Court on that day and went on for a short while also on the next day. The learned advocate for the petitioners then started replying to the argument of the learned Advocate General. After the reply had proceeded for some time, we felt that the questions raised were of great constitutional importance and it would be most undesirable to attempt to dispose them of at the admission stage without a full-fledged debate culminating in a reasoned judgment. We, therefore, decided to issue a rule on the petition. We pointed out to the learned Advocate General that should the Assembly and the Speaker desire, we would first determine the question of jurisdiction as a preliminary contention. If it was decided in favour of the Assembly and the Speaker, the petition would fail and there would be an end of it. But if it was decided otherwise, the Assembly and the Speaker would have an opportunity to make a choice whether to contest the petition on merits or to withdraw from further participation in the proceedings. Having regard to the urgency of the matter, we originally intended to make the rule returnable on 9th April 1970 but at the request of the learned Advocate General, we fixed the returnable date on 20th April 1970.
4. Though, as pointed out above, the Assembly appeared before the Court on 1st and 2nd April 1970 and made its submissions on the question of jurisdiction, it appears that after the Rule was issued, the Assembly seemed to become aware that to appear before the Court even for the limited purpose of raising a contest as to jurisdiction would be inconsistent with the duties and obligations of the Speaker to safeguard and protect the privileges and interests of the Assembly. The Speaker representing the Assembly accordingly adopted what appears to us with great respect a rather unusual procedure. He directed the Secretary of the Legislature to address a letter to the Registrar of the Court pointing out the reasons for refusal to appear before the Court and bringing to the notice of the Court the point of view of the Assembly in regard to the question of jurisdiction. This letter was dated 17th April 1970 and it was received by the Registrar on the same day. Ordinarily a communication such as this received from a party to a litigation would not seriously engage our attention and we would not take much notice of it since the party wishing to contest the jurisdiction of the Court can always appear under protest and raise a question of jurisdiction which the Court can properly decide after hearing both parties. But here was a communication received from the holder of one of the highest offices in the State, an office of great dignity and respect, an office invested with high and important functions under the Constitution and we could not lightly disregard it. The communication in so far as is material for the purpose of the present petition was as follows:
I am further directed by the Hon. the Speaker to request you kindly to bring to the notice of the Hon. the Court that all the issues involved in the Petition relate to the proceedings of the House (Legislative Assembly), and that the matters as to how the proceedings of the House are to be conducted or as to when the House is to meet or when and how the House is to be adjourned, are within the exclusive jurisdiction of the House, and any direction or order purporting to regulate, conduct or control the proceedings of the House, would amount to a clear breach of privileges of the House and also its contempt.
I am further directed to state that in the House, subject to the rules of the House and directions, if any, of the House and established practices, the Hon. the Speaker and he alone, decides and regulates as to how the House is to be adjourned and such other questions pertaining to the working and conducting of the House. The decision and the conduct of the Hon. the Speaker in regulating the proceedings of the House can be impugned only in and by the House itself under the provisions of Constitution of India and the Rules of the Assembly. I am, therefore, directed to state that where an adequate provision has been provided under the Constitution for impugning the decision and the conduct of the Hon. the Speaker, the same cannot be entertained in the Courts.
It is, therefore, out of abundant respect for the Hon. the High Court, that the Hon. the Speaker has directed me to make out an intimation as above, and the Hon. the Speaker trusts and hopes that the Hon. the High Court will appreciate that the House has its own privileges and that the Hon. the Speaker has a duty to protect them and would, therefore, avoid an action which amounts to the breach of privileges of the House and its contempt.
If we carefully scrutinise the communication, it is clear that two points are sought to be made on behalf of the Assembly. In the first place, though it is not claimed in so many words that the House is the sole and absolute Judge of its own privileges and they cannot be allowed to suffer the scrutiny of the Court even as regards their existence or extent, that is in effect the basis of the stand taken by the Speaker on behalf of the Assembly. It is only on the basis of this hypothesis that the decision of the Speaker not to appear before the Court can be rationally explained. If the Assembly accepted the position that the existence and extent of its privileges can be determined by the Court, it is reasonable to assume that the Assembly would have appeared before the Court, claimed the privileges that the House has absolute authority so far as the regulation of its internal proceedings within its own walls is concerned and no proceedings of the House can be impeached or questioned outside the House and invited the Court in view of this privilege to hold that it had no jurisdiction to entertain the petition. But the Assembly is obviously not prepared to submit the privilege claimed by it to the scrutiny of the Court and, therefore, resting on its unilateral assertion of the privilege, it has chosen to disregard the adjudicatory process by denying the power of the Court to determine the nature, scope and extent of the privilege. Secondly, the Speaker has said in words plain enough to admit of no doubt that if the Court assumes jurisdiction and issues any direction or order on the petition, it would amount to a clear breach of privilege of the House and constitute its contempt and then proceeded to express the hope that the Court would avoid taking any such action which amounts to a breach of privilege of the House and its contempt. Though his words are polite and courteous, the disguise they wear is thin and they clearly convey a threat to the Court that if the Court entertains the petition and makes an order or direction upon it, it would render itself liable to be proceeded against for contempt of the House. The stand taken by the Assembly is reminiscent of the early days of English constitutional history when the Parliament and the Courts were engaged in a heated controversy as to the respective spheres of jurisdiction of each in regard to Parliamentary privilege, resulting, on one occasion, in two Judges of the King’s Bench Division, namely, Sir Francis Pemberton and Sir Thomas Jones, being arraigned before the Bar of the House for contempt of Parliament for having given a judgment against the Sergeant-at-Arms in respect of arrest and detention effected by him pursuant to an order of the House. But fortunately, we have a written Constitution and such a controversy has no place here. That was in effect so declared by the Supreme Court by a majority of six to one in Presidential Reference No. 1 of 1964: In re Under Article 143 of the Constitution of India A.I.R. 1965 S.C. 745 arising out of a collision between the Uttar Pradesh Assembly and the Judges of the Allahabad High Court. The facts of that case are not very important nor are the answers given to the President’s questions but the importance of the opinion expressed by the majority lies in the very illuminating discussion of the legal issues involved in the Reference. One of the questions which arose for consideration was as to whether the Court had jurisdiction to determine the existence and extent of the privileges claimed by the Legislature. The U.P. Assembly claimed that the House is the sole and exclusive Judge of its powers, privileges and immunities and the Court has no jurisdiction to examine them. This claim was found by the majority Judges to be wholly untenable. Gajendragadkar C.J., speaking on behalf of the majority pointed out that the privileges of the Legislature are to be found in Article 194(3): that provision is the sole foundation of the privileges and no privilege can be claimed by the House which is not included in it. The problem of determining the existence and extent of the privileges is, therefore, really a problem of construing Article 194(3) and determining its content. That task under a Federal Constitution such as ours, where not the Parliament but the Constitution is supreme and sovereign, is assigned solely and exclusively to the Judicature. The learned Chief Justice said:
… 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 functions, 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 the 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 the decision about the construction of Article 194(3) must ultimately rest exclusively with the Judicature of this country. That is why we must overrule Mr. Seervai’s argument that the question of determining the nature, scope and effect of the powers of the House cannot be said to lie exclusively within the jurisdiction of this Court.
Another question which came up for consideration before the Supreme Court was as to whether an action of a Judge in the discharge of his judicial duties could form the subject matter of a proceeding for contempt by the Legislature or, in other words, has the Legislature power or privilege to take action against a Judge for contempt in respect of an act done by him in the discharge of his judicial functions. This question was also answered against the Legislature by the majority Judges. The learned Chief Justice accepted the argument of the Judges that Article 211 affords complete protection to a Judge acting in the discharge of his duties. His conduct in the discharge of his duties can never become the subject matter of any action taken by the House in exercise of its powers or privileges under the latter part of Article 194(3). Examining the impact and consequence of Article 211 of Article 194(3) in the context of the scheme of the Constitution and its relevant provisions, the learned Chief Justice pointed out at pp, 769-770:
The latter part of Article 194(3) makes no such exception, and so, it would be logical to hold that whereas a speech made in contravention of Article 211 is protected from action in a Court by Article 194(2), no such exception or protection is provided in prescribing the powers and privileges of the House under the latter part of Article 194(3). If a Judge in the discharge of his duties passes an order or makes observations which in the opinion of the House amount to contempt, and the House proceeds to take action against the Judge in that behalf such action on the part of the House cannot be protected or justified by any specific provision made by the latter part of Article 194(3). In our opinion, the omission to make any such provision when contrasted with the actual provision made by Article 194(2) is not without significance. In other words, this contrast leads to the inference that the Constitution-makers took the view that the utmost that can be done to assure absolute freedom of speech and expression inside the legislative chamber would be to make a provision in Article 194(2); and that is about all. The conduct of a Judge in relation to the discharge of his duties cannot be the subject matter of action in exercise of the powers and privileges of the House. Therefore, the position is that the conduct of a Judge in relation to the discharge of his duties cannot legitimately be discussed inside the House, though if it is, no remedy lies in a Court of law. But such conduct cannot be made the subject-matter of any proceedings under the latter part of Article 194(3). If this were not the true position, Article 211 would amount to a meaningless declaration and that clearly could not have been the intention of the Constitution.
The existence of a fearless and independent judiciary can be said to be the very basic foundation of the Constitutional structure in India, and so, it would be idle, we think, to contend that the absolute prohibition prescribed by Article 211 should be read as merely directory and should be allowed to be reduced to a meaningless declaration by permitting the House to take action against a Judge in respect of his conduct in the discharge of his duties. Therefore, we are satisfied that Mr. Setalvad is right when he contends that whatever may be the extent of the powers and privileges conferred on the House by the latter part of Article 194(3), the power to take action against a Judge for contempt alleged to have been committed by him by his act in the discharge of his duties cannot be included in them.
The learned Chief Justice then proceeded to deal with the contention of the U.P. Assembly that even if by reason of Article 211, judicial conduct can never become the subject matter of contempt proceedings under the latter part of Article 194(3), the warrant issued by the House being a general or unspeaking warrant, the Court was not entitled to question it by invoking Article 211. This contention was repelled on the ground that no such privilege to claim a conclusive character for a general or unspeaking warrant belonged to the House of Legislature in this country and the learned Chief Justice concluded by saying:
If the theory that the general warrant should be treated as conclusive is accepted, then, as we have already indicated, the basic concept of judicial independence would be exposed to very grave jeopardy; and so the impact of Article 211 on the interpretation of Article 194(3) in respect of this particular power is again decisively against the contention raised by the House.
It will be seen from the above discussion that both the claims put forward by the Speaker on behalf of the Assembly in his communication to the Court are directly covered by the majority opinion of the Supreme Court which has clearly and unequivocally expressed itself against their validity. We are, therefore, surprised and indeed if we may say so without meaning the slightest disrespect to the Assembly and the Speaker, we think it a matter of regret that the Gujarat Legislature Assembly should have advanced these claims in utter disregard of the majority opinion of the Supreme Court. It is DO doubt true that the majority opinion was expressed by the Supreme Court in its advisory jurisdiction under Article 143 but we do not see why on that account it ceases to be law declared by the Supreme Court within the meaning of Article 141. The Constitution has conferred diverse jurisdictions on the Supreme Court. There is the original jurisdiction under Article 131 then there is the appellate jurisdiction under Articles 132, 133, 134 and 136 there is also writ jurisdiction under Article 32; and lastly, there is advisory jurisdiction under Article 143. A point of law may arise for consideration in any of these jurisdictions and where such point of law is considered and the Supreme Court expresses what in its considered view is the correct position in regard to such point of law, it is clearly and indubitably a declaration of law by the Supreme Court. It is not material which jurisdiction provides the occasion for declaration of the law. Whatever be the jurisdiction, when law is expounded by the Supreme Court, it is declared. The word “declared” in Article 141 must be given its plain natural meaning and so construed, it has a wide connotation. It is not limited by the requirement that there should be a decision in a lis inter partes. The main ground on which binding effect has been denied to advisory opinions given by Courts in Canada under Section 60 of the Canadian Supreme Court Act, 1906, is that they do not decide anything. As one Canadian Judge said: “We give no judgment, we determined nothing, we end no controversy”. But this reasoning can have no application under our Constitution for it is law declared by the Supreme Court which is given binding effect under Article 141 and law may be declared by the Supreme Court in the exercise of any jurisdiction irrespective whether it involves decision of a dispute inter partes or not. Even under the Government of India Act, 1935, which contained a provision similar to Article 141, Sir Maurice Gwyer said in Province of Madras v. Boddu Paidanna (1942) F.C.R. 90 at page 100 : “In the Central Provinces Case (1939) F.C.R. 18, the opinions expressed were advisory opinions but we do not think that we ought to regard them as any less binding on us on that account”. It is true that a different view was expressed by Spens C.J. in In rg Levy of Estate Duty (1944) F.C.R. 317, 320 and Umaval Achi v. Laxmi AM (1945) F.C.R. 1 36. But we do not think the view expressed by Spens C.J. can be preferred to that of a great constitutional authority of the eminence of Sir Maurice Gwyer. Besides, even in Canada where at one time the advisory opinion rendered by the Court was likened to “the opinions of the law officers”, subsequent cases and commentators indicate that in practice “referral cases are frequently accorded presidential value”. “This is inevitable” says Thomas Franck in his book on “Comparative Constitutional Process: Cases and Materials” at page 105 “and perhaps, even desirable. “Where Government and individuals have guided their conduct by such decisions, the Courts are naturally reluctant to reverse their prior pronouncements in whatever form given”. This is of course not to say that the Supreme Court cannot in a matter which properly comes before it in the exercise of another jurisdiction depart from the opinion expressed by it on a point of law in a Presidential Reference but until displaced by another decision, the considered opinion must be held binding as declaratory of law. It may also be noted that in any event even if technically it may be said that the opinion has no binding effect, it is still an opinion expressed by the highest Court in the land in a matter which properly came before it and in which there was full debate and discussion and rival contending points of view were argued elaborately with great thoroughness and distinction. Such a opinion must be held invested with great weight and authority and until reversed by a subsequent pronouncement, must be regarded as binding on the Gujarat Assembly particularly when we find that the Speaker of that Assembly appeared at the hearing of the reference and made his submissions on the questions arising in the Reference. As a matter of fact even obiter dicta of the Supreme Court deliberately and advisedly made, containing considered opinion of the Supreme Court always regarded binding on the High Court. Vide Mohandas v. Sattanathan 56 Bom. L.R. 1156 Jashwantlal v. Nichhabhai V G.L.R. 161. It is, therefore, impossible to disregard the authority of the majority opinion in the Presidential Reference and with great respect we feel that it would have been more conducive to the maintenance of the rule of law if the Gujarat Assembly had, accepting the authority of the majority opinion for the time being at least until the questions could be reagitated before the Supreme Court, appeared before the Court and without prejudice to its larger contention, raised the question of privilege for the determination of the Court.
5. We may point out that quite apart from the authority of the Supreme Court in the Presidential Reference, even on first principle it is not possible to accept the proposition that the House is the sole and exclusive Judge of its privileges and the Court has no jurisdiction to determine their existence or extent. Whatever may be the origin of the privileges of the House of Commons in England, so far as the Legislatures in India are concerned, the privileges which belong to them are the result of express conferment under Article 194 Clauses (1), (2) and (3). The privileges are not inherent nor do they arise as a necessary implication from the duty to discharge functions entrusted under the Constitution. They flow directly from Article 194 Clauses (1), (2) and (3). The Constitution-makers attached supreme importance to the privilege of freedom of speech and they, therefore, made it a subject matter of express enactment in Clauses (1) and (2) of Article 193. But so far as the other privileges were concerned, the Constitution makers instead of writing them down in pen and ink adopted the legislative device of incorporation by reference. The reason perhaps was that the Constitution-makers thought it inexpedient to set out on the task of extracting from the mass of relevant material both of the Parliament and of the Courts, the privileges of the House of Commons as recognised by the Courts. There was always a danger that some privilege might be left out or some privilege erroneously introduced. Moreover, the enumeration itself might become large and unwieldy such as ought not to encumber a Constitutional instrument. The devise which was, therefore, adopted was to incorporate by reference in Article 194 Clause (3) the privileges enjoyed by the House of Commons at the commencement of the Constitution. The result is that these privileges are expressly conferred by Article 194 Clause (3) as if they were written out in pen and ink in that clause. They are rights conferred by the Constitution like any other rights and to determine their scope and effect is obviously a task which legitimately belongs to the judiciary under the Constitution. It is for the Courts to finally interpret and apply the Constitution and to ensure that the different organs of the State function within the limits set for them by the Constitution. If there is any transgression of the limits-if any rights are exceeded, if any privileges are exercised which do not properly belong to the House of the Legislature, the Court can intervene and strike down the action at the instance of an aggrieved party. This is the technique of judicial review which has by now come to be recognised as the most potent and effective means for maintenance of rule of law. A contrary view would make it possible for the Legislature to define the limits of its own powers and in that process to expand them if it so chooses and that would be clearly destructive of the rule of law. Such a claim indeed was made by the Congress in the famous case of Marbury v. Madison but fortunately John Marshall, the great Chief Justice of the United States negatived the claim and laid the foundation of the doctrine of judicial review. If one looks at the problem objectively, it can hardly be disputed that where there is a written Constitution, the task of interpretation must be left to the judiciary for Judges are trained in the science of the law and as such they would be best fitted to arrive at a proper construction of the meaning of the statute and moreover, as pointed out by Mr. Justice Frankfurter, they are “free from the tensions and temptations of party strife, detached from the fleeting interests of the moment”. The content of Article 194(3) cannot, therefore, be finally determined by the House of the Legislature. The ultimate and authoritative determination must be with the Courts. As a matter of fact even in England, as pointed out by May in Parliamentary Practice, Seventeenth Edition, at page 173, the House of Commons has not for a hundred years refused to submit its privileges to the decision of the Courts and, therefore, it may be said to have given practical recognition to the jurisdiction of the Courts over the existence and extent of its privileges. The Australian Constitution offers a closer analogy. Section 49 of that Constitution is similar toArticle 194(3) andconstruing that section in Queen v. Richards (1955) 92 C.L.R. 157, Chief Justice Dixon said that the existence and extent of privilege is a justiciable matter and can be adjudicated upon by the High Court. It will, therefore, be seen that the claim implicit in the Communication of the Speaker that the Court has no jurisdiction to examine the existence and extent of privileges claimed by the Legislature and must accept the ipse dixit or the opinion of the House of the Legislature in that behalf as final, is wholly untenable.
6. We also note with regret that the Legislature should have held out a threat of contempt against the Court. We appreciate the solicitude of the Legislature for our welfare but we feel the threat of contempt could have been spared. We have the highest respect for the Assembly and the Speaker. We are not unmindful of the grandeur and majesty of the task which has been assigned to the Legislature under our Constitution. All the legislative chambers in India to-day are playing a significant role in the onward march of the country to the ideal of a welfare State where each citizen will have justice, social, economic and political and there will be equality of opportunity for all and that naturally gives to the Legislature “a high place in the making of history to-day”. But the Courts also have to play an equally important and significant role in the development of the rule of law. The successful working of the rule of law which constitutes the basic foundation of the democratic way of life requires bold, fearless and imaginative interpretation of the Constitution and the laws by a completely independent body of persons highly skilled in the law and that task is entrusted under our Constitution to the Judges. Unfortunately today in our country we find that attempts are being made to denigrate the judiciary but these attempts proceed on a total misconception of the true function of the judiciary under a written Constitution and a lack of awareness as to how essential and indispensable is this institution for maintenance of the democratic values which we cherish so much and to which we have given permanent abode in our Constitution. It must be remembered that both the Legislature and the judiciary are important constituents of a democratic State, each having a special function entrusted to it under the Constitution and they 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 alone will help the peaceful development, growth and stabilisation of the democratic way of life”. Democracy is a delicate, sensitive and highly sophisticated mechanism. It demands for its successful working a great sense of responsibility, maturity and restraint on the part of all those who are engaged in it. The slightest disturbance in the delicate balance of its adjustments can throw its mechanism out of gear and seriously impair its efficacy. Something of Pascal’s spirit of self search and self-reproach must, therefore, imbue every department of the State and each must be willing to recognise and concede the legitimate exercise of its function by the other. We are, therefore, pained that an attempt should have been made by the House of the Legislature to deflect us from our duty by the threat of contempt. We may assure the Legislature that we have no ambition to expand the scope and ambit of our authority. We have no desire to arrogate to ourselves jurisdiction which we do not possess. We do not wish to clutch at power which does not belong to us. But one thing is certain, we owe allegiance to the Constitution and if the Constitution requires that we shall adjudicate upon the existence and extent of the privilege claimed by the Legislature and if in our considered view it does not exist, we shall refuse to give effect to it, there is no power on earth which can deter us from doing our duty. Questions are brought before us for our determination by aggrieved persons. We do not seek those questions. They come to us and we have to determine them howsoever beset with doubts and difficulties they may appear. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution. Therefore, despite the threat of contempt we must proceed to examine whether the claim of privilege made by the Legislature is well-founded. We do so not in a spirit of criticism nor in assertion of any superiority but in discharge of a duty plainly laid upon us by the Constitution. This duty we must discharge conscientiously, objectively and according to the best of our judgment. We would have been very happy if the Legislative Assembly, instead of attributing omniscience to us, however flattering it may be, had chosen to appear and assist us in the discharge of this duty by making submissions on the question of jurisdiction as well as privilege. But since the Legislative Assembly through the month of the Speaker refused to do so, we were constrained in the interest of justice to request Mr. C.T. Daru to appear amicus curiae and assist us in the solution of these difficult questions of far-reaching importance. We are greatly indebted to Mr. Daru for the extremely able assistance he has given us.
7. We must at the threshold of our discussion start with an examination of the privileges enjoyed by the House of Commons at the commencement of the Constitution, for those are the privileges which are sought to be incorporated by reference in Article 194(3). The privileges of the House of Commons have been defined as “the sum of the fundamental rights of the House and of its individual Members against the prerogative of the Crown, the authority of the ordinary Courts of law and the special rights of the House of Lords”. These rights are “absolutely necessary for the due execution of its powers”. There are certain privileges which belong to the House collectively while there are certain others which belong to the individual Members but even the privileges of the individual Members are really in ultimate analysis privileges of the House itself for they are necessary for proper functioning of the House. They are enjoyed by the individual members “because the House cannot perform its functions without unimpeded use of the services of its Members”. These privileges are part of the law and custom of Parliament, and they have been recognised and given effect to by Courts as part of the law of the land. By doing so, the Courts have taken to themselves the power to interpret the privileges and to determine their limits and they regard it as their duty to decide any question of privilege arising directly or indirectly in a case which falls within their jurisdiction and to decide it according to their own interpretation of the law without being bound by any Resolution of the House. The House of Commons on the other hand claims that its admitted right to adjudicate on breaches of privilege implies in theory the right to determine the existence and extent of the privileges themselves. In other words, it claims to be the absolute and exclusive judge of its own privileges, and it has never expressly abandoned this claim. Naturally, as a result of this dualism the decisions of Courts are not accepted as binding by the House in matters of privilege, nor the decisions of the House by the Courts and as May points out in his “Parliamentary Practice”, on the theoretical plane the old dualism remains unresolved”. In practice, however, “there is a wide field of agreement on the nature and principles of privilege in spite of the apparent deadlock on the question of jurisdiction” and May describes it in the following words in the form of general conclusions at page 173:
(1) It seems to be recognized that for the purpose of adjudicating on questions of privilege, neither House is by itself entitled to claim the supremacy over the ordinary Courts of justice which was enjoyed by the undivided High Court of Parliament. The supremacy of Parliament, consisting of the Sovereign and the two Houses, is a legislative supremacy which has nothing to do with the privilege jurisdiction of either House acting singly.
(2) It is admitted by both Houses that, since neither House can by itself add to the law, neither House can by its own declaration create a new privilege. This implies that privilege is objective and its extent ascertainable, and reinforces the doctrine that it is known by the Courts.
On the other hand, the Courts admit:
(3) That the control of each House over its internal proceedings is absolute and cannot be interfered with by the Courts.
(4) That a committal for contempt by either House is in practice within its exclusive jurisdiction, since the facts constituting the alleged contempt need not be stated on the warrant of committal.
Of course, as pointed out in the majority opinion in the Presidential Reference and already discussed above, there is no scope under our Constitution for any such “dualism” as exists in England. The privileges having been expressly conferred by Article 194 Clauses (1), (2) and (3), the Courts as the final interpreters of the Constitution and the laws have the sole power to determine the existence and extent of the privileges. But it is clear from the above statement of the law from May that it is an admitted privilege of the House of Commons in England recognized by the Courts that the control of the House over its internal proceedings is complete and cannot be interfered with by the Courts. This privilege was recognized by each of the Judges who decided the case of Stockdale v. Hansard (1840) 11 Ad. and El. 253. Lord Denman said: “Whatever is done within the walls of either assembly must pass without question in any other place”. Patterson, J. said: “Beyond all dispute, it is necessary that the proceedings of each House of Parliament should be entirely free and unshackled, that whatever is said or done in either House should not be liable to examination elsewhere”. And Coleridge, J. said: “That the House should have exclusive jurisdiction to regulate the course of its own proceedings, and animadvert upon any conduct there in violation of its rules or derogation from its dignity, stands upon the clearest grounds of necessity”. The existence of this privilege was at no time doubted and indeed it could not be since it was statutorily recognized in Section 1 Article 9 of the Bill of Rights, 1688; but it was in the famous case of Bradlaugh v. Gossett 12 Q.B.D. 271 that this privilege for the first time in its full implications and consequences found a secure footing oh the soil of English law. Bradlaugh, a free thinker and atheist, was elected a member of Parliament for Northampton, and he required the Speaker to call him to take the oath which was required by the Parliamentary Oaths Act, 1860. The House resolved that he was not to be permitted to take the oath and authorized the Sergeant-at-Arms to exclude him from the House until he engaged “net further to disturb it”. Bradlaugh brought an action for an injunction to restrain the Sergeant-at-Arms from giving effect to the resolution on the ground that it was contrary to the provisions of the Oaths Act. The maintainability of the action was disputed on a demurrer and the Court of Queen’s Bench allowed the demurrer. Coleridge, C.J., said:
What is said or done within the walls of Parliament cannot be inquired into in a Court of law. On this point all the judges in the two great cases which exhaust the learning on the subject Burdet. v. Abbott 14 East 1 148 and Stockdale v. Hansard 9 Ad. and E. 1 are agreed, and are emphatic.
Stephen, J., in a classic exposition of the subject, held that the Court must decide the case on the supposition that the view taken by the House of Commons of the Oaths Act was erroneous. For, if it was correct, no question survived for the determination of the Court. But though the Court must decide the case on the above supposition, the Court could not further assume that the error was the result of a deliberate violation of the law by the House; it was more reasonable and proper to assume that for reasons not before the Court, and therefore not known to it, the House took the view which in the opinion of the House was not inconsistent with the law. The learned Judge then proceeded to state the principle in these terms:
I think that the House of Commons has the exclusive power of interpreting the statute, so far as the regulation of its own proceedings, within its walls is concerned; and that, even if that interpretation should be erroneous, this Court has no power to interfere with it directly or indirectly. 1 think that the House of Commons is not subject-to the control of Her Majesty’s Courts in its administration of that part of the statute law which has relation to its own internal proceedings…
Here we find clear and undoubted recognition of the privilege that the House of Commons has the exclusive right to regulate its own internal proceedings without interference from any external authority. The House is the sole master of its internal proceeding and they cannot be impeached or questioned elsewhere than in the House. Where a matter is a proceeding of the House which begins and terminates within its own walls and has its effect within the House itself, it is a matter concerning the internal proceedings of the House and hence it ought to be decided within the House itself and now where else it would be outside the jurisdiction of the Courts. This necessarily implies that the House has the exclusive power of interpreting the law so far as the regulation of its proceedings within its own walls is concerned. It is not subject to the control of the Courts in its administration of that part of the law which has relation to its internal proceedings. In other words, it is the sole Judge of the lawfulness of its proceedings even where the procedure of the House is dependant on statute. For such purposes, as pointed out by Stephen, J. in Bradlaugh v. Gossett (Supra) the House can “practically change or practically supersede the law”. But here it is necessary to notice a distinction which marks off the limit of this privilege and helps to appreciate its true scope and ambit. The privilege of exclusion of interference from external authority is restricted only to matters concerning the internal proceedings of the House. It is only with respect to rights exercisable within the House that the jurisdiction of the House is exclusive. Where, however, a proceeding of the House issues in action affecting rights of persons exercisable outside the House, the Courts for the purpose of adjudicating upon such rights in the exercise of their undoubted jurisdiction would have power to pronounce upon the legality of the proceeding. The proceeding of the House in such a case would be examined by the Courts incidentally for the purpose of deciding question properly within their jurisdiction as happened in the case of Stockdale v. Hansard (supra). This was recognised by Coleridge, C.J. in Bradlaugh v. Gossett when he said:
… there can be no doubt, that, in an action between party and party brought in a Court of law, if the legality of a resolution of the House of Commons arises incidentally, and it becomes necessary to determine whether it be legal or not for the purpose of doing justice between the parties to the action; in such a case the Courts must entertain and must determine that question. Lord Ellenborough expressly says so in Burden v. Abbott 14 East 148 : and Bayley, J. seems to assume it at p. 161. All the four judges who gave judgment in Stockdale v. Hansard assert this in the strongest terms.
Stephen, J. also emphasized this distinction and brought out the true nature of the privilege in these words:
Some of these rights are to be exercised out of Parliament, others within the walls of the House of Commons. Those which are to be exercised out of Parliament are under the protection of this Court, which, as has been shown in many cases, will apply proper remedies if they are in any way invaded, and will in so doing be bound, not by resolutions of either House of Parliament, but by its own judgment as to the law of the land, of which the privileges of Parliament form a part. Others must be exercised, if at all, within the walls of the House of Commons; and it seems to me that, from the nature of the case, such rights must be dependent upon the resolutions of the House.
This was the privilege of the House of Commons and as is evident from Rex. v. Graham Campbell (1935) 1 K.B. 594 and Dingle v. Associated News papers Ltd. (1960) 1 All E.R. 294 as also the statement of the law contained in the Sixteenth and Seventeenth Editions of May’s Parliamentary Practice, this privilege continued to be enjoyed by the House of Commons at the commencement of the Constitution. The question, however, arises whether these privileges could be said to be conferred on the Houses of Legislature in India on a proper interpretation of the content of Article 194(3).
8. Let us look again at Article 194(3). That Article consists of two parts. The first part empowers the Legislature to define by law from time to time its powers, privileges and immunities whereas the second part provides that until so defined, the powers, privileges and immunities shall be those of the House of Commons and of its members and Committees at the commencement of the Constitution. The argument of the learned Government Pleader was that all privileges which vested in the House of Commons at the relevant date would belong to the House of the Legislature by reason of the latter part of Article 194(3) and since the privilege recognised in Bradlaugh v. Gossett (supra) was one of them, it must be held to be conferred on the House of the Legislature. But this broad claim made on behalf of the Government cannot be accepted in its entirety because, as pointed out by Gajendragadkar C.J. in the majority opinion given in the Presidential Reference, there are some privileges which obviously cannot be claimed by the House of the Legislature. Take for example the privileges of freedom of access which is exercised by the House of Commons as a body and through its Speaker “to have at all times the right to petition, counsel or remonstrate with their sovereign through their chosen representative and have a favourable construction placed on his words”. It can hardly be disputed that the House of the Legislature in India cannot claim this privilege. Similarly the privilege to pass acts of attainder and impeachments cannot be claimed by the House of the Legislature. The House of Commons also claims the privilege in regard to its own Constitution. This privilege is expressed in three ways, first by the order of new writs to fill vacancies that arise in the Commons in the course of the Parliament; secondly, by the trial of controverted elections; and thirdly, by determining the qualifications of its members in cases of doubt. This privilege again admittedly cannot be claimed by the House of the Legislature. Therefore, it would not be correct to say that all powers and privileges which were possessed by the House of Commons at the commencement of the Constitution can be claimed by the House of the Legislature. Vide Paragraph 45 of the opinion of Gajendragadkar, C.J., in the Presidential Reference at page 764 of the Report. The question in each case would be whether the particular privilege claimed by the House of the Legislature can be read into Article 194(3) and that would depend upon whether it is consistent with the basic structure and fabric of the Constitution and its material provisions. It cannot be introduced if it would be a stranger in the environments of the Constitution or conflict with any essential features or provisions of the Constitution. It is from this standpoint that we will have to examine whether the privilege in Bradlaugh v. Gossett is incorporated in Article 194(3) or not.
9. To determine this it is necessary to appreciate the principle on which the recognition of the privilege in Bradlaugh v. Gossett was founded and for this purpose we may briefly recapitulate the history of the conflict of jurisdiction between the Courts and the House of Commons in regard to Parliamentary privilege. May points out that in cases affecting Parliamentary privilege the tracing of a boundary between the competence of the Courts and the exclusive jurisdiction of either House is a difficult question of constitutional law which has provided many puzzling cases, particularly from the seventeenth to the nineteenth centuries. It has been common ground between the Houses and the Courts that privilege depends on the “known laws and customs of Parliament” and not on the ipse dixit of either House. But the question in dispute was whether the law of Parliament was a “particular” law or part of the common law in its wide and extended sense and in the former case whether it was a superior law which overrode the common law. There was also another point of controversy arising out of this question and that was whether the matter of privilege should be judged solely by the House which it concerned, even when the rights of third parties were involved, or whether it might in certain cases be decided in the Court, and, if so, in what sort of cases. The points of view adopted by the Parliament and the Courts appeared to be irreconcilable. The Courts maintained that privilege was part of the law of the land and claimed the right to decide for themselves, where it became necessary to do so in proceedings before them, questions in relation to the existence or extent of these privileges whereas both the Houses, while admitting that neither acting alone could create a new privilege, claimed to be the sole and exclusive judges of their own privileges. There seemed to be thus complete antinomy or contradiction in law between two equally respectable principles urged with conviction and occasionally with heat by two co-ordinate authorities of equal jurisdiction, each supreme within its own sphere and neither of which could compel the submission of the other. But, as pointed out by Gajendragadkar, C.J. in Paragraph 85 of his opinion in the Presidential Reference, it is a tribute to the remarkable English Genius for finding pragmatic ad hoc solutions to problems which at first sight appear to be irreconcilable that for all practical purposes they resolved this deadlock “by adopting the conventional method of give and take”. The two conflicting points of view were reconciled in practice and a solution was evolved by tacit consent which was acceptable to both parties. This solution which is marked out by the Courts is to insist on their right in principle to decide all questions of privilege arising in litigation before them with certain large exceptions in favour of parliamentary jurisdiction. Two of these are the exclusive jurisdiction of each House over its own internal proceedings and the rights of either House to commit and punish for contempt. May adds that while it cannot be claimed that either House has formally acquiesced in this assumption of jurisdiction by the Courts, the absence of any conflict for over a century may indicate a certain measure of tacit acceptance. It will, therefore, be seen that the privilege that the House is the absolute master of its’ internal proceedings free from interference from any external authority and is the sole judge of the lawfulness of its proceedings was recognized by the Courts as a matter of practical solution with a view to resolving “dualism” arising by reason of conflicting claims of jurisdiction by “two constitutional authorities; each supreme in its own sphere and neither of which could compel the submission of the other. It was the result of a process of give and take which was tacitly acquiesced in by both parties. Stephen J., explaining in Bradlaugh v. Gossett why this privilege was conceded by the Courts to the House of Commons said: “if we were to attempt to erect ourselves into a Court of Appeal from the House of Commons, we should consult neither the public interest, nor the interests of Parliament and the Constitution, nor our own dignity. We should provoke a conflict between the House of Commons and this Court, which in itself would be a great evil; and, even upon the most improbable supposition of their acquiescence in our adverse decision, an appeal would lie from that decision to the Court of Appeal, and thence to the House of Lords, which would thus become the judge in the last resort of the powers and privilege of the House of Commons”. This reasoning on which the privilege was recognised by the Courts in England can have no application under our Constitution where, as pointed out earlier, there is no scope for “dualism”. We have a written Constitution under which the Courts are constituted the final interpreters of the Constitution and the laws and the entire basis on which the English Courts agreed to recognise this privilege in the House of Commons is absent in our case and we would not, therefore, be justified in holding that this privilege which the House of Commons was by tacit agreement allowed to possess as a matter of give and take in order to end an unhealthy “dualism” is vested in the House of Legislature in India. We are fortified in taking this view by the majority opinion in the Presidential Reference. There also the question was whether the privilege enjoyed by the House of Commons that a general or unspeaking warrant issued by it shall be conclusive and no Court shall go behind it was vested in the House of Legislature by reason of Article 194(3). Gajendragadkar, C.J. delivering the majority opinion pointed out:
… it would, we think, not be inaccurate to observe that the right claimed by the House of Commons not to have its general warrants examined in habeas corpus proceedings has been based more on the consideration that the House of Commons is in the position of a superior Court of record and has the right like other superior Courts of record to issue a general warrant for commitment of persons found guilty of contempt. Like the general warrant issued by superior Courts of record in respect of such contempt, the general warrants issued by the Mouse of Commons in similar situations should be similarly treated. It is on that ground that the general warrants issued by the House of Commons were treated beyond the scrutiny of the Courts in habeas corpus proceedings. The House, and indeed all the Legislative Assemblies in India, never discharged any judicial functions and their historical and constitutional background does not support the claim that they can be regarded as Courts of Record in, any sense. If that be so, the very basis on which the English Courts agreed to treat a general warrant issued by the House of Commons on the footing that it was a warrant issued by a superior Court of Record, is absent in the present case, and so, it would be unreasonable to contend that the relevant power to claim a conclusive character for the general warrant which the House of Commons, by agreement, is deemed to possess, is vested in the House.
10. We may also consider whether this privilege is consistent with the basic scheme of the Constitution and its material provisions. We have already pointed out that under our Constitution it is the Judicature which has been entrusted with the task of finally interpreting and applying the Constitution and the laws. The Judicature has to see and this is a solemn duty assigned to it by the Constitution that each organ of the State functions within the limits of the law, whether it be the law of the Constitution or the law enacted by the Legislature and there is no infraction or breach of the law resulting in violation of the rights of the citizens. This duty is discharged by the Judicature by means of the technique of judicial review and this technique is made available to the Judicature by Article 226. That Article is couched in the widest terms and it confers power 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 and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. The words employed in this Article to confer jurisdiction on the High Court are words of wide import. Any person or authority including even the House would be within the ambit and coverage of this large supervisory jurisdiction given to the High Court. As pointed out by Gajendragadkar, C.J. in the Presidential Reference in Paragraph 59 of his opinion: “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”. The House would be subject to the jurisdiction of the High Court under Article 226 unless there is any provision in the Constitution which clearly and unequivocally detracts from the operation of Article 226 and excludes the jurisdiction of the High Court in any particular situation. Such a provision may for instance be found in Articles 194(2), 212(1) and 212(2). Article 194(2) in so many terms provides that no member of the Legislature shall be liable to any proceedings in any Court in respect of anything said or any vote given by him in the Legislature or any Committee thereof and no person shall be liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings. This express provision must clearly prevail over Article 226. So also Article 212(1) excludes the jurisdiction under Article 226 by providing explicitly that the validity of any proceedings in the Legislature shall not be called in question on the ground of any alleged irregularity of procedure. Article 212(2) gives immunity from jurisdiction to an officer or member of the Legislature in respect of exercise by him of powers vested in him by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature. But save and except in cases falling within provisions of this kind the absolute and unrestricted jurisdiction of the High Court under Article 226 must extend to all persons and author-ties including the House and if the House has taken any action which is beyond its power or plainly contrary to law, the High Court would have power to examine the legality and validity of such action at the instance, of an aggrieved party. That would be merely one more instance of exercise of power conferred upon the High Court under Article 226 to maintain the rule of law. The question is whether the privilege in Bradlaugh v. Gossett can fit in appropriately in this scheme of the Constitution. The privilege gives to the House the exclusive power to interpret the laws so far as the regulation of its internal proceedings is concerned and makes it the sole Judge of the lawfulness of its proceedings. If this privilege were to be read in Article 194(3), the result would be that the House would have the sole power to the exclusion of the High Court to interpret finally the provisions of the Constitution relating to procedure such as Articles 198, 209, 211 and 213 as also laws made by the Legislatures in so far as they relate to regulation of its internal proceedings and even if on an erroneous view of the law, the House has acted without jurisdiction or plainly in violation of the law, the High Court’s jurisdiction under Article 226 would be excluded. The High Court would cease to be the ultimate and authoritative interpreter of the Constitution and the laws in the field on which the privilege operates. Such a privilege would nullity the provisions of Article 226 in respect of this area limited though it be. If that be so, can it be said that this privilege is consistent with the basic principle underlying the Constitution and its material provisions? Such a privilege would clearly be a stranger in our Constitution and we do not think it can legitimately be read in Article 194(3).
11. Mr. Daru, however, contended that this was not a correct approach to the problem of construction of Article 194(3). He urged that we must first read the privilege in Article 194(3) as if it were written out in pen and ink in that Article and then apply the principle of harmonious construction if that appears to conflict with any other provision of the Constitution. So construed, the privilege incorporated in Article 194(3) would have full efficacy in the area in which it operates and Article 226 would be restricted only to the extent to which it is over ridden by the privilege. As a matter of fact, said Mr. Daru, when the Court entertains the petition and finds that the proceeding of the House is covered by the privilege, the Court will give effect to the privilege since it is part of the Constitution and hold that it has no jurisdiction to question the legality of the proceeding. This argument of Mr. Daru, plausible though it may seem, suffers from a serious infirmity. It begs the question which is to be answered. The problem before us is whether the privilege can be read in Article 194(3). It is no answer to this problem to say “Read the privilege in Article 194(3) and then harmonise it with the other provisions”. If the privilege is inconsistent with the scheme of the Constitution and its material provisions, it cannot and should not be read in Article 194(3). The presumed intention of the Constitution-makers in such a case would be that such a privilege should not belong to the House of the Legislature. We derive considerable support for this conclusion from the implication raised from the first part of Article 194(3). If the Legislature makes a law defining the privileges of the House under the first Part of Article 194(3) and enacts the privilege in Bradlaugh v. Gosselt as part of such law, would such an enactment exclude the jurisdiction of the Court under Article 226? Would the House be entitled to assert the statutory privilege in the face of Article 226 or in other words, would the statutory privilege prevail over Article 226? The answer is obviously on the negative. Article 226 is paramount and it cannot be set at naught by any law made by the Legislature under the provisions of the Constitution. No provision enacted in a law made by the Legislature can exclude the jurisdiction of the High Court under Article 226. Notwithstanding such provision the jurisdiction of the High Court under Article 226 would remain unimpaired. The enactment of a law under Article 194(3) cannot be said to be in exercise of constituent power and it must, therefore, give way to Article 226. If that be so, it becomes at once material to inquire whether the Constitution makers could have really intended that the privilege in Bradlaugh v. Gossett should be read in Article 194(3) so as to take away a part of the jurisdiction of the High Court under Article 226 when a law made by the Legislature prescribing the privileges of the House could not do so. The first part of Article 194(3) thus throws considerable light on the true interpretation of the latter part of that Article and shows that it could never have been the intention of the Constitution-makers that the privilege in Bradlaugh v. Gossett should be read in Article 194(3). This is the same argument which found favour with the majority Judges in the Presidential Reference, Vide paragraph 37 of the majority opinion. We are, therefore, of the view that the privilege in Bradlaugh v. Gossett though enjoyed by the House of Commons at the commencement of the Constitution does not vest in the House of the Legislature under Article 194(3) and does not give immunity to the House from scrutiny of the Court even in respect of its internal proceedings. Of course, if there is any irregularity in the proceedings Article 212(1) affords complete protection and the High Court’s jurisdiction is excluded but if the proceeding suffers from lack of power or plain egregious violation of the law, the High Court would have power to interfere with it in the exercise of its undoubted jurisdiction under Article 226, as did the Supreme Court in Satyapal’s case A.I.R. (1969) S.C. 910.
12. That takes us straight to the question whether the House had the power to pass the impugned Resolution adjourning itself sine die. But before we examine this question it is necessary to dispose of a short argument advanced by Mr. Garg on behalf of the petitioners. He urged that if the impugned Resolution was invalid and did not have the effect of adjourning the House sine die, the sitting of the House was being illegally withheld and that violated the petitioners’ privilege of freedom of speech enshrined in Article 194(1). This argument was obviously advanced in order to stear clear of the privilege in Bradlaugh v. Gossett in case it was held that such privilege was incorporated in Article 194(3) for if the right of freedom of speech in Article 194(1) was violated, there could be no question of jurisdiction of the Court being excluded under Article 194(3). On the view taken by us that the privilege in Bradlaugh v. Gossett is not incorporated in Article 194(3), this argument becomes unnecessary but since it was advanced before us, we propose briefly to deal with it. In the first place, as pointed out above, the privilege of freedom of speech, though a privilege exercisable by an individual member of the House, is really, in the ultimate analysis, a privilege of the House itself and it can never be asserted against the House. No member of the House can be heard to complain that the House has violated his privilege of freedom of speech. It is a privilege against the outside world and not against the House and this becomes evident if we look at Article 194(2) which contains the provision giving potency to the right of freedom of speech conferred under in Article 194(1). No Resolution of the House can, therefore, be assailed as violative of the freedom of speech of a member. Secondly, the privilege of freedom of speech is exercisable only when there is a sitting of the House. If the sitting of the House does not take place for whatever reason, valid or invalid, there can be no question of exercising the privilege of freedom of speech. In such a case to borrow the words of Gajendragadkar C.J., from a judgment delivered on 27th October 1965 in Writ Petitions Nos. 47 and 61 of 1965, K. Ananda Nambiar v. The Chief Secretary to the Govt of Madras “no occasion arises for the exercise of the right of freedom of speech and no complaint can be made that the said right has been invalidly invaded. “The right of freedom of speech under Article 194(1) can be invoked only if there is a direct impact upon it and not in a case such as the present where the impact, if at all, is indirect and remote. It is, therefore, not possible to sustain the argument of the petitioners that the illegal adjournment of the House sine die violated the right of freedom of speech of the petitioners.
13. Now turning to the question on merits, the argument of the petitioners was based on Rule 9 of the Legislative Assembly Rules made by the Assembly in exercise of its power under Article 208(1) and that Rule read as follows:
9. The Speaker may adjourn any sitting of the House sine die or to any particular day and hour or to any part of the same day to be named by him without discussion or vote:
Provided that the Speaker may, if he thinks fit call a sitting of the House before the date or time to which it has been adjourned or at any time after the House has been adjourned sine die.
The petitioners contended that Rule 9 conferred sole and exclusive power on the Speaker to adjourn the House sine die and such power did not belong to the House. There was accordingly lack of power in the House to pass the impugned Resolution and it was null and void. This argument was sought to be met by Mr. Daru and the learned Government Pleader by a three-fold answer. Their first contention was that the Legislative Assembly Rules made by the House in the exercise of its power under Article 208(1) had no statutory force or effect and, therefore, Rule 9 did not displace the power of the House to adjourn itself which was an incident of its privilege to regulate its proceedings by settling its own code of procedure and even if the impugned Resolution was contrary to Rule 9, it did not give rise to a right enforceable in a Court of law. Secondly, it was urged and this contention was based on the assumption that the Legislative Assembly Rules had statutory force and were legally binding on the House-that the Speaker had ruled on a point of order raised by petitioner No. 4 that on a proper interpretation, Rule 9 did not exclude the power of the House to adjourn itself and the impugned Resolution was, therefore, within the competence of the House. This ruling was given on a matter within the cognizance of the Speaker and it was final and binding on the members under Rule 47 and its legality could not be questioned in a Court of law by reason of Article 212(2). Even if the ruling was not immune from the scrutiny of the Court under Article 212(2), it should not be interfered with by the Courts because the view taken by the Speaker on the question of interpretation was a reasonably possible view. If on account of either of these two reasons the ruling stood unchallenged or undisturbed, it was not open to the petitioners to contend contrary to the ruling that the impugned Resolution was not within the power of the House. And lastly, it was contended that in any view of the matter, the petitioners were liable to fail since on a proper construction of the Legislative Assembly Rules and the relevant provisions of the Constitution, the House had the power to adjourn itself and such power was not excluded by Rule 9. We shall now turn to an examination of these contentions.
14. The first question which arises for consideration is as to the true nature of the Rules made under Article 208(1). Are these Rules intended to have statutory force or effect so as to give rise to an enforceable right or obligation in a Court of law or are they meant to have effect only for regulating the procedure of the House and its conduct of business without creating any legal rights or obligations? The question is one of interpretation and like all other questions relating to interpretation, it has to be decided on a comprehensive view of the relevant provisions of the Constitution. To do so it is necessary to go back again to Article 194(3) and to refer to one other privilege of the House of Commons. It is clear from May’s Parliamentary Practice, (Seventeenth Edition) page 60, that the House of Commons has the privilege to regulate its own code of procedure. May says that this is such an obvious right-it has never been directly disputed-that it is unnecessary to enlarge upon it except to say that the House is not responsible to any external authority for following the rules it lays down for itself, but may depart from them at its own discretion. This being a privilege enjoyed by the House of Commons at the commencement of the Constitution would be incorporated in Article 194(3) unless it is excluded by an inconsistent provision of the Constitution. The only provision which could be pointed out by the petitioners as inconsistent with this privilege was Article 208(1). That Article provides that the House of Legislature may make rules for regulating, subject to the provisions of the Constitution, its procedure and the conduct of its business. The argument of the petitioners was that the Rules authorized under Article 208(1) were rules having statutory force or effect and were binding on the House and the House could not depart from them without committing a breach of a statutory obligation enforceable at law subject only to the exception contained in Article 212(1) and the privilege that the House may depart from its rules for conduct of business at its own discretion without being answerable to any external authority was, therefore, excluded by Article 208(1). But this argument suffers from the same fallacy as the argument of Mr. Daru and the learned Government Pleader in respect of the earlier contention. It assumes the validity of the premise which has to be established. We have to determine whether the rules under Article 208(1) have statutory force or effect in the light of the other provisions including Article 194(3). We cannot assume that they have statutory force or effect and conclude that, therefore, they exclude the privilege under Article 194(3). Moreover, the rule-making power conferred under Article 208(1) is by its very words subject to the other provisions of the Constitution which include Article 194(3) and, therefore, the privilege claimed under Article 194(3) cannot be excluded on the ground that it is inconsistent with Article 208(1). In any event we have to interpret Article 208(1) in the light of the privilege claimed under Article 194(3) and see whether on any reasonable interpretation of Article 208(1) the privilege in Article 194(3) can stand side by side with Article 208(1) without any inconsistency or incongruity. To this aspect of the matter we shall revert a little later.
15. Now it is not an inviolable canon of construction that rules or regulations made in exercise of statutory power must always be construed as enacting a statutory obligation. Take for example the recent decision of the Supreme Court in Executive Committee, U.P. Warehousing Corporation v. Chandra Kiran Tyagi . The question which arose for decision in that case was whether an order of dismissal passed by the U.P. Warehousing Corporation was null and void on the ground that it was passed in violation of regulations made by it in exercise of the statutory power under Section 54 of the Agricultural Produce (Development and Warehousing Corporation) Act, 1956. If the regulations had the force of law, the order of dismissal passed in violation of the regulations would be null and void but not so, if they did not have statutory force. It, therefore, became necessary for the Supreme Court to inquire what was the true nature of the regulations made by U.P. Warehousing Corporation. The Supreme Court held that the regulations though made in exercise of statutory power under Section 54 of the Act did not create statutory obligation of a mandatory character and their infraction did not render the order of dismissal null and void. Vaidialingam, J., speaking on behalf of the Court observed:
As pointed out by us, the regulations are made under the power reserved to the Corporation under Section 54 of the Act. No doubt they lay down the terms and conditions of relationship between the Corporation and its employees. An order made in breach of the regulations would be contrary to such terms and conditions, but would not be in breach of any statutory obligation, as was the position which this Court had to deal with in the Life Insurance Corporation case (supra).
This decision is merely an illustration to show that the rules or regulations made in exercise of statutory power do not necessarily have statutory force or effect: they do not in all cases give rise to statutory rights or obligations enforceable in a Court of law. Of course, where rules or regulations are in the nature of subordinate legislation intended to lay down binding rules or conduct for third parties, they would be held to be invested with legislative force and for all purposes of construction or obligation, they would be treated exactly as if they were in the statute and they would have the same effect as if contained in the statute. But where it appears clearly that the intention of the Legislature in conferring rule-making power on an authority was not to enable the authority to make binding rules of conduct, rules made by such authority would not have the effect of creating statutory rights and obligations enforceable at law. The word “rules”, it is true, has the effect of an opiate on the mind: it conjures up the image of something enforceable at law. But we must remember that merely because the nomenclature used by the Legislature is “rules, “it does not necessarily mean that they have statutory force or effect. Whether they have statutory force and effect or not would be a matter of construction and that again would depend on a number of relevant factors such as the scheme of the Act, the nature of the rule-making power, the authority on which power is conferred, the purpose for which the power is given and the subject matter of the rules and regulations. It is on a consideration of these and other like factors that we will have to determine whether the Legislative Assembly Rules made under Article 208(1) have statutory force or effect so as to create legally binding obligations enforceable at law.
16. Now in the present case even apart from Article 208(1) the House would have the power to make rules regulating its procedure and conduct of its business by virtue of the privilege incorporated in Article 194(3). The rule-making power contained in Article 208(1) is, therefore, not a new power conferred on the house which the house would not have had, but for the enactment of Article 208(1). Article 208(1) is really nothing but a recognition and express articulation of the power possessed by the House by virtue of the privilege of the House of Commons inherited by it under Article 194(3). Moreover if we have regard to the nature of the power referred to in Article 208(1), we find that it is a power to make rules for regulating internal procedure and conduct of business and the rules are to be made by the house itself. It is not as if the power to make rules is conferred on any outside authority; if such had been the case, it would have been possible to say that the power conferred was a power to make binding rules of conduct having statutory force qua the persons in respect of whom the rules would be made. But here is a power conferred on the house to make rules not for others but for itself in order to regulate its own procedure and its own conduct of business. It is difficult to see how such rules can be regarded as having statutory force or effect. We may in this connection profitably refer to the decision of the Supreme Court in Co-operative Bank Central Ltd. v. Industrial Tribunal Hyderabad . There the question was whether bye-laws of a Co-operative Society framed in pursuance of the provisions of the Andhra Pradesh Co-operative Societies Act, 1964, could be said to be law or to have the force of law. The bye-laws were made pursuant to a statutory power conferred under a section of the Act. Even so it was held by the Supreme Court that the bye-laws were intended only to govern the internal management, business or administration of the Society and they did not, therefore, have the force of law. Bhargava, J., speaking on behalf of the Supreme Court observed at page 252 of the report:
We are unable to accept the submission that the bye-laws of a co-operative society framed in pursuance of the provisions of the Act can be held to be law or to have the force of law. It has no doubt been held that, if a statute gives power to a Government or other authority to make rules, the rules so framed have the force of statute and are to be deemed to be incorporated as a part of the statute. That principle, however, does not apply to bye-laws of the nature that a cooperative society is empowered by the Act to make. The bye-laws that are contemplated by the Act can be merely those which govern the internal management, business or administration of a society. They may be binding between the persons affected by them, but they do not have the force of a statute.
Furthermore, the House which has the power to make Rules can also alter or rescind them. There is no limitation or restriction placed by the Constitution on the power of the House to modify or rescind the rules. It is no doubt true that a certain provision is made in Rules 211 to 213 for carrying out amendments or additions to the Rules but if we look at this provision it would be apparent that the provision is wholly procedural in character and does not in any way fetter or restrict the power of the House to alter or amend the Rules. The power to make rules implies the power to make them from time to time and that would include the power to amend or rescind the rules. No rule made by the House can curtail this constitutional power whether it be read in Article 194(3) or in Article 208(1) to alter or amend the rules in the only way in which all questions before the House are decided, namely, by majority of votes. Vide Article 189. If this be the position, the question immediately arises: could it have been intended by the Constitution makers that the Rules made by the House should be legally binding on itself? If the House has power to alter or rescind the rules at any time, can it be said with any semblance of justification that the Rules have statutory force or effect so as to bind the House? It would be absurd to suggest that Rules made by the House have a binding effect on the House when the House can at any time set them at naught by altering or rescinding them. The House is the author of the rules: it is their master and not their slave and it is not possible to say that the rules have force of law so as to create binding legal obligations on the House.
17. This conclusion derives considerable strength if we read Article 208(1) in the light of the privilege incorporated in Article 194(3). The privilege relied upon is that the House has the power to settle its own code of procedure and it may depart from the rules made by it at its own discretion without being answerable to any external authority. If the Rules made under Article 208(1) are construed as not having statutory force or effect so as to be liable to be altered or departed from at the will of the House, there would be no inconsistency between the privilege claimed under Article 194(3) and Article 208(1). As a matter of fact Article 208(1) would then be in exact conformity with the privilege under Article 194(3) and would be no more than a provision recognising and giving effect to this privilege. The privilege under Article 194(3) and the provisions of Article 208(1) would be completely harmonised and they would be able to stand side by side without any inconsistency or incongruity. Such a result moreover would be eminently fair and satisfactory for it is difficult to believe that the Constitution makers could ever have contemplated that the Rules made by the House under Article 208(1) should have statutory force or effect so as to result in legal rights and liabilities enforceable in a Court of law when they related only to regulation of its internal procedure and conduct of business. It could hardly have been intended by the Constitution makers that a proceeding of the House should be subjected to the scrutiny of the Court in respect of violations of rules regulating the procedure and conduct of business of the House. Moreover, it may be noted that Article 208(1) provides in so many terms that the regulation of the procedure and conduct of business of the House by Rules made by the House is to be subject to the provisions of the Constitution. If, therefore, there is any Rule which conflicts with any provision of the Constitution, it will have to yield to the provision of the Constitution on the express terms of Article 208(1), for the power to make Rules under Article 208(1) is conditional upon the exercise being consistent with the provisions of the Constitution. The Rules made by the House under Article 208(1) would, therefore, have to be in conformity with the privilege claimed under Article 194(3) and this circumstance also clearly suggests that the rules have no statutory force or effect and the House may depart from them at its own discretion without being answerable to any external authority. We must, therefore, uphold the contention of Mr. Daru that the Legislative Assembly Rules made by the House have no statutory force or effect and if that be so, it is clear that Rule 9 cannot have the effect of displacing the power of the House to adjourn itself which being a matter pertaining to conduct of business, namely, whether to transact a particular business or not and if so, at what time, is merely an incident of its privilege to regulate its own proceedings by settling its own procedure.
18. That takes us to the second contention urged by Mr. Daru and the learned Government Pleader. This contention proceeds on the assumption that the Legislative Assembly Rules made by the House under Article 208(1) have statutory force and effect and they create legal obligations enforceable at law. We have already set out the contention and we need not reiterate it. The contention rests on Rule 47 of the Legislative Assembly Rules and it would, therefore, be convenient to reproduce it in extenso. That Rule provides inter alia.
47. (1) A point of order shall relate to the interpretation or enforcement of these rules or such Articles of the Constitution as regulate the business of the House and shall raise a question which is within the cognizance of the Speaker.
(2) A point of order may be raised in relation to the business before the House at the moment:
Provided that the Speaker may permit a member to raise a point of order during the interval between the termination of one item of business and the commencement of another if it relates to maintenance of order in, or arrangement of business before, the House.
(3) Subject to the conditions referred to in Sub-rules (1) and (2), any member may, at any time, raise a point of order for the decision of the Speaker but in doing so, he shall confine himself to stating the point.
(4) The Speaker shall decide whether the point raised is a point of order and, if so give his decision thereon which shall be final.
(5) No debate shall be allowed on a point of order but Speaker may, if he thinks fit, hear members before giving his decision.
(6) xxx xxx xxx xxx xxx (7) xxx xxx xxx xxx xxx It was in exercise of his power under this Rule that the Speaker gave a ruling on the point of order raised by the fourth petitioner that on a proper interpretation, Rule 9 did not exclude the power of the House to adjourn itself and the House had, therefore, power to pass the impugned Resolution. The question which arises for consideration on this contention is as to what is the effect of this ruling. Now it is evident that white the business of the Assembly is going on, various questions in regard to procedure and conduct of business are bound to arise which would require interpretation of the rules as also of the Articles of the Constitution regulating the business of the House. The power to decide these questions Initially at any rate, must, therefore, be vested in some authority in order to ensure smooth and efficient functioning of the House. This power is entrusted by Rule 47 to the Speaker who presides over the House. The result is that so far as the actual conduct of business of the House is concerned the Speaker is authorized to interpret the rules and the provisions of the Constitution regulating the procedure and conduct of business and his ruling is made final. The Rules are, therefore, subject to interpretation by the Speaker and his interpretation is declared by Rule 47 to be final so far as the conduct of business of the House is concerned. That would be the statutory effect of Rule 47. Now in the present case the point of order raised by the fourth petitioner directly involved a question of interpretation of Rule 9. The contention urged by him was that by reason of Rule 9 the Speaker alone had the power to adjourn the House sine die and the House had no such power. This contention raised a pure question of interpretation of Rule 9 in the context of the Legislative Assembly Rules and the Speaker in the exercise of his undoubted power under Rule 47 gave a railing which was clearly within the ambit of his jurisdiction. The Speaker ruled that on a proper reading of Rule 9 the power of adjournment conferred on him was not an exclusive power and it did not take away the power of the House to adjourn itself. He interpreted Rule 9 and decided what was the impact of that Rule on the power of the House to adjourn itself. He did not ignore the Rule in the guise of interpreting it. It may be that he was wrong in interpreting the Rule though, as we have shown, it is not possible to say that his decision was erroneous. But even if it was erroneous, it was a matter within the jurisdiction of the Speaker and had a right to decide rightly or wrongly according to his own view of the law. We must of course introduce here a qualification, namely, that if the interpretation placed by the Speaker were so plainly and egregiously wrong that one might say that he had really, in the guise of interpretation, ignored the rule or asserted himself against the law, no finality would attach to his ruling. His ruling in such a case would suffer from the vice of being in colourable exercise of power and it would be robbed of all finality. But apart from such a case, where a ruling given by the Speaker is within jurisdiction, it would be final so far as conduct of the business of the House is concerned. Now if the ruling of the Speaker suffers from a patent error of law apparent on the face of the record, a question may well arise whether this Court in the exercise of its jurisdiction under Article 226 can quash and set it aside. It was urged before us that the ruling of the Speaker would be immune from the scrutiny of the Court by reason of Article 212(2) and it would not, therefore, be competent to the Court to examine whether there is any error apparent on the face of the record so far as the ruling is concerned. It is not necessary for purpose of this petition to decide what is the true effect of Article 212(2). Does it merely give personal immunity as was suggested by Mr. Garg on behalf of the petitioners or does it afford complete immunity from challenge as was canvassed by the learned Government Pleader on behalf of the Government? This is a debatable question and we do not propose to decide it. We will proceed on the assumption that Article 212(2) does not give complete protection against the supervisory jurisdiction of the Court under Article 226 and consider whether on the accepted principles of writ jurisdiction, there is any infirmity in the ruling of the Speaker which requires to be set right by us. It is evident that on the view taken by us it is not possible to say that the ruling of the Speaker is vitiated by any error of law apparent on the face of the record. The view taken by the Speaker is in any event a reasonably possible view and we do not think it would be right to exercise our supervisory jurisdiction even if we were inclined to feel that the other view is a better view. Now, obviously, if the ruling of the Speaker stands unchallenged it is not possible to hold that the House had no power to adjourn itself and the impugned Resolution passed by the House was invalid. Such a conclusion would be plainly in contradiction to the ruling of the Speaker and it would amount to going behind the ruling of the Speaker and in effect and substance setting it aside as if by a sidewind. We may point out that wholly different considerations would have arisen if the ruling of the Speaker were not within his jurisdiction under Rule 47. The ruling then would not have been able to secure any protection from the scrutiny of the Court even under Article 212(2). But that is not the case here. The petitioners are, therefore, precluded by the ruling of the Speaker from challenging the validity of the impugned Resolution on the ground that it was outside the power of the House.
19. We now go on to consider the last contention urged by Mr. Daru and the learned Government Pleader. That contention raised the question whether as a matter of plain construction the House had the power to adjourn itself or whether such power was vested exclusively in the Speaker by Rule 9. Now in the first place, as already pointed out above, the rules made by the House under Article 208(1) are expressly made subject to the other provisions of the Constitution which include the privilege incorporated in Article 194(3). The regulation of the procedure and conduct of business of the House by the Rules is subject to the privilege embodied in Article 194(3). The privilege includes the power to regulate its own procedure and conduct of business and as incidental to it, the House obviously would have the power to adjourn itself. It is no doubt true that the adjournment which is effected in the present case is adjournment sine die. But conceptually we do not think it should make any difference to the argument whether the adjournment is to a fixed date or it is sine die. When the adjournment is sine die all that it means is that there is no fixed date to which the sitting is adjourned. In either case it would be a matter pertaining to the conduct of business of the House. The question before the House would be whether the remaining business should be transacted now or at some future point of time. The House may very well decide that the remaining business may be transacted after a certain fixed time or the House may say that it maybe transacted at a future point of time which may be subsequently fixed if it is possible to do so or even that it may be carried forward to the next session. It is a question as to how the business of the House should be conducted. Therefore, as part of its privilege to regulate its own conduct of business and to settle its own code of procedure, the House would have the power to adjourn itself either to a fixed date or sine die. If this privilege belongs to the House under Article 194(3), no rule made by it under Article 208(1) can be so construed as to detract from this privilege. To do so would be to refuse to give effect to the words “subject to the provisions of this Constitution” in Article 208(1). Secondly, even on a plain construction of the language of Rule 9, it is difficult to see how it can be construed as vesting exclusive power to adjourn the House in the Speaker. What Rule 9 says is that the Speaker may adjourn any sitting of the House without discussion or vote. That does not mean that the House cannot adjourn the sitting with discussion and vote. The House can always adjourn itself with discussion and vote but apparently the House wanted to confer power on some authority to adjourn the House without discussion or vote and so it gave such power to the Speaker. The power conferred on the Speaker by Rule 9 is not an exclusive power but it is an additional power conferred on the Speaker which may be exercised by him without discussion or vote, that is, without taking the sense of the House, if he so thinks fit, for the more convenient transaction of the business of the House. Strong reliance was placed on behalf of the petitioners on Rule 39(2) to combat this conclusion; but if we look at this provision a little closely, it will be apparent that this provision, far from helping the argument of the petitioners, goes against it. Rule 39 Clauses (1) and (2) read as follows:
39.(1) A motion that consideration of a Bill which has been introduced or of any motion moved in the Assembly be adjourned to any future day in the same Session available for such business or to any future Session or sine die may be moved by any member at any time (except when a member is speaking) and such motion shall take precedence over any other motion then before the Assembly. The Speaker, after permitting a brief explanatory statement from the mover of the motion and, if the motion is opposed, from the member opposing the motion, may without further debate put the question thereon.
(2) The Speaker may disallow any motion for the adjournment of any business if, in his opinion, such motion is made for the purpose of securing the adjournment of the sitting.
The argument of the petitioners was that if a motion for adjournment of any business is in the opinion of the Speaker made for the purpose of securing an adjournment of the sitting, the Speaker can disallow such motion under Rule 39(2) and that showed inferentially that it was not competent to a member to move a motion for adjournment of the sitting. But this argument is based on a misreading of Rule 39(2). That rule confers power on the Speaker to disallow a motion for adjournment of any business if in his opinion such motion is made for the purpose of securing an adjournment of the sitting. It is a discretionary power and in the exercise of such power he may disallow the motion or he may refuse to disallow it according to his discretion which of course would be exercised according to the highest traditions. If the Speaker does not disallow the motion and it is passed, it would in effect and substance bring about adjournment of the sitting. Now if the House had no power to adjourn the sitting as contended on behalf of the petitioners, it is difficult to see why such a discretionary power should have been conferred on the Speaker which might be exercised so as to permit a motion really intended to secure adjournment of the sitting. Rule 39(2) could have easily said that if the motion was really made for the purpose of securing adjournment of the sitting in the guise of obtaining adjournment of any business, the Speaker shall disallow such motion. The word “may” in Rule 39(2) cannot be read as “shall” for we find several rules where the House is quite explicit in laying a compulsory obligation on the Speaker by using the word “shall” whenever it wanted to do so. We are, therefore, of the view that the House had the power to adjourn itself and the impugned Resolution passed by the House was not void as being beyond the power of the House.
20. We are not unmindful of the consequences of the view we are taking. It is possible that the power which we are recognising in the House to adjourn itself by a majority vote may sometimes be exercised in a manner oppressive to the minority. But that is no reason why we should deny that power to the House. Merely because power may be abused is no ground for denying its existence. All power is likely to be abused. That is inseparable from the nature of human institutions. The wisdom of man has not yet been able to conceive of a Government even an institution-with power sufficient to answer its legitimate ends and at the same time incapable of mischief. No political system can be made so perfect that its rules will always hold it to the true course. In the last analysis, a great deal must depend on the wisdom and honesty, integrity and character of those who administer it. The rule of majority is a basic principle underlying Parliamentary form of Government and its proper and successful functioning can be ensured only by a highly vigilant and sensitive electorate. If there is abuse of power by the majority, they, would be liable to be scourged into “retirement by their indignant masters”, namely, the people who elected them. The greatest safe-guard against abuse of power by the majority is the political force of the electorate. The sanction for proper exercise of power is that of the people and not the Court. As a matter of fact, it has been found in England which is the cradle of democracy that the power of adjournment has not lent itself to any abuse and if that be so, there is no reason why we should feel apprehensive in this country in reading that power as vested in the House of Legislature.
21. There were the only contentions urged before us and since in out view, there is no substance in them, the petition fails and the rule is discharged, There will be no order as to costs of the petition, Mr. K.G. Vakharia, learned advocate appearing on behalf of the petitioners, applies, for leave to appeal to the Supreme Court under Article 133(1)(c) of the Constitution. Leave so applied for is granted.
(Leave so granted was not availed of)