1. This is an application under Article 226 of the Constitution of India by Sri saradhakar Supakar, a member of the Orissa Legislative Assembly, praying for the issue of a writ on the Speaker and the Secretary of the Assembly, directing them
'to exclude the address of the Governor followed by a discussion thereof as provided for under Article 176 of the Constitution,'
from the list of business fixed for the 7th and 8th March 1952 and 'directing them not to hold any meeting of the Assembly on these dates for that purpose' It is said that a point of order raised for this very purpose was overruled by the acting Speaker on the 6th March 1952.
2. The petitioner urges that the first session of the Orissa Legislative Assembly after the recent General Elections commenced its sittings from the 4th March 1952 as the members had been summoned by the Secretary of the Assembly under the direction of the Governor of Orissa to meet on that date. A notice was issued by the Secretary of the Assembly forwarding a copy of the calendar of meetings for 'the first session of the Orissa Legislative Assembly commencing from. 4-3-52'. The calendar of meetings sent with this notice shows that the 4th and 5th March had been fixed for the administration of oath to the members, the 6th March for the election of the Speaker, and the 7th March for the address of His Excellency the Governor to be followed by a motion 'that a respectful address be presented to His Excellency in reply to his speech, expressing the thanks of the Assembly for the speech delivered by him.'
The contention on behalf of the petitioner is that the proposed address of His Excellency the Governor would fall under Article 175 of the Constitution of India and not under Article 176 which under Clause (2) thereof gives the right to the House to discuss the matters referred to in the address. Article 176 Sub-clause (1) as amended reads as follows:
'At the commencement of the first session, after each General Election to the Legislative Assembly, and at the commencement of the first session of each year, the Governor shall address the Legislative Assembly, or, in the case of a State having a Legislative Council, both the Houses assembled together, and inform the Legislature of the causes of its summons.'
Article 176(2) reads as follows :
'Provision shall be made by the rules regulating the procedure of the House or either house for the allotment of time for discussion of the matters referred to in such address.'
The petitioner's contention is that the first session of the Assembly has already commenced on the 4th March 1952. In support of this contention, reliance is placed on the language employed by the Secretary of the Orissa Legislative Assembly in the notice issued by him wherein he says that a copy of the calendar of meetings for the first session of the Orissa Legislative Assembly 'commencing from the 4th March' is sent to the members. If, as contended for by the petitioners, the session of the Assembly has already commenced on the 4th March, the Governor's address fixed for today, the 7th March, cannot be said to be one given 'at the commencement of a Session of the Assembly' as provided for in Article 176, Clause (1).
The Governor has the option, to address the Assembly under Article 175(1) and to send a message under Article 175(2), but this Article makes no express provision for allotment of time for discussion of the address of the message. Therefore, if the address that the Governor is to give today, the 7th March, is one under Article 175(1) the Assembly has no right to discuss it. All that is required under Article 175 is that the Governor may 'require the attendance of the members' for the purpose of his address. Article 176(1) on the other hand lays down, in express terms, that the Governor 'shall address the Legislative Assembly' and 'inform the Legislature of the causes of its summons'. The difference in the language of the two Articles is intended to serve two different purposes. Having regard to the terms of Article 176(1) it appears to me that at the first meeting of the Assembly after a General Election the Governor has no option but to address the Assembly and inform the members of the 'causes of its summons'.
3. The words 'causes of summons' and 'commencement of a session' have acquired a well recognized meaning in the Parliamentary practice of England and have been bodily incorporated in the Constitution of India. Dr. Ambedkar replying to the discussion on Article 87 of the Constitution observed :
' 'cause of its summons' is a phrase which we find used in the British Parliament....and after a long and great deal of search for proper phraseology, we are fortunate enough in finding those words in Campion, and I think it is a good phrase and ought to be retained.'
According to May's Parliamentary Practice
'when a new Parliament is summoned the members take their oaths and then the Speaker is elected, who, in turn, takes the oath, and then the King opens the Parliament by a speech from the Throne.'
The following passage at page 273 of the same book (14th Edition) makes the position, clear;
'When the greater part of the members of both Houses are sworn, the 'preliminaries peculiar to first session' are concluded and Parliament is ready to hear the King's speech, and, to proceed with the initial business of the session.'
Further down the learned author says that
'the session is opened at once by the King's speech.....Until the cause of summons is declared by the King neither House can proceed with public business.....This form is observed because no business can be transacted until Parliament has been opened by the Crown.'
The very same practice has been followed in India, both in the Constitution as well as in the Rules of Business framed by the Speaker of the Orissa Legislative Assembly under the Constitution (the Governor taking the place of the King of England). No member elected to an Assembly can take his seat except after taking the oath of allegiance, nor can the Legislature function without a Speaker being duly elected. After the Assembly is so constituted the Governor addresses the Assembly and explains 'the causes of its summons'. The Governor comes into direct and immediate communication with the representatives of the people. He draws the attention of the house to important public events which require their attention such as the circumstances which compel the Executive for instance to seek for more grants, etc.
The Assembly is then given the opportunity to discuss the address and express its opinion and then proceed to business, and it is only at this Stage that the Assembly can be said to meet in session. The Rules of Procedure and Business framed by the Orissa Legislature Assembly would indicate a similar procedure. The Secretary first issues summons to each Member for a session of the Assembly. Rule 5 says that
'when, after a General Election, there is a vacancy in the office of the Speaker of the Assembly, the Governor shall fix a date for the election of the Speaker.'
Then comes the provision for the election of the Deputy Speaker and for the appointment of a panel of Chairman. Under Sub-division III of the Rules, comes Rule 10 which provides for the special address of His Excellency the Governor 'at the commencement of every session'.
The expression 'commencement of every session' to my mind appears to be deliberate, because it is only at this stage that the session can be said to commence beginning with the address of the Governor under Article 176(1). It may also be noted that the 'first meeting' of the Assembly referred to in Article 172 commences from this date, and the duration of five years is to be counted from this meeting. I may also, in this connection, make a reference to Rule 3 of the Rules framed by the West Bengal Legislative Assembly for the conduct of its business. It lays down clearly that
'in the case of a session after dissolution on the first sitting of the Assembly, 'after the election of the Speaker', the Governor shall address the Assembly as required under Article 176 of the Constitution.'
A 'session' connotes the sitting together of the legislative body for the transaction of business. The legislature cannot be said to have 'met' until the preliminaries have been gone through.
To my mind, therefore, there is nothing in the language of Clause (1) of Article 176, which supports the contention raised on behalf of the petitioner that the first session of the Orissa Legislative Assembly commenced from the 4th March 1952, on which date the newly-elected members were summoned to take their oaths. I am accordingly of opinion that Article 176 has not been violated and that the order of business fixed for the Assembly on the 7th and 8th of March, does not constitute an infringement of any provision of the Constitution. The Rules of Business of the Assembly warrant the procedure, and Parliamentary practice justifies it.
4. But quite apart from this the petition can be disposed of on the ground that Article 212 of the Constitution operates as a bar to the jurisdiction of this Court being invoked for the issue of a writ under Article 226 against the Speaker of the Assembly or the Secretary of the Assembly, in a case of this kind, though it is contended that the Secretary of the Assembly cannot be said to be an officer of the Legislature and as such cannot claim immunity. In England, the Clerk and the Sergeant-at-Arms are treated as officers of the British Parliament and I do not see why the Secretary should not get the same protection. There can be no doubt that Article 212 constitutes a bar to the jurisdiction of this Court extending over the Speaker while functioning in his capacity as such inside the Legislature to regulate the conduct of business of the Assembly by virtue of the powers vested in him by the Constitution.
5. It was urged by Mr. Mohapatra, learned counsel for the petitioner, that this bar does not afford protection to the Speaker if the matter in question does not relate to the procedure or conduct of business of the Assembly. While the argument may appear attractive hypothetically, it is difficult to say that a point of order raised by a Member, as in this case, as to whether a certain matter should be discussed or not in the Assembly does not relate to the conduct of the business of the Assembly. It is said that the point of order was raised on the 5th but was overruled by the Acting Speaker on the 6th. Whether that ruling is right or wrong is not a question on which the Court is competent to pronounce; we are not called upon to decide whether an anticipatory point of order on an item which was not before the House could be entertained.
It may be open to any member of the Assembly to raise the matter again and obtain a ruling from the Speaker when the discussion is actually taken up. Mr. Mohapatra, however, points out that when a ruling has already been given on a point by the Speaker, the same point cannot be raised once again during the same session of the Assembly. I am not so sure that the House has not got the power to discuss a matter if permitted by the Speaker to do so. However that may be, I am of opinion, that, on the facts of this case, fins Court would not be justified in interfering with the business of the House or attempting to restrict the powers of the Speaker in regulating that business by the issue of a writ in the manner prayed for.
6. We would accordingly hold that the petitioner has no legitimate ground for complaint and that this petition is misconceived. It is dismissed.
7. I agree that the petition should be rejected, but for reasons slightly different from those given by my learned brother.
8. The principal question which has been argued at some length by Mr. Mohapatra is whether the address which His Excellency is going to deliver today to the Members of the Orissa Legislative Assembly can be said to be an address under Article 176 Clause (1) or under Article 175 of the Constitution. The answer to this question depends upon the construction of the words 'commencement of the first session' occurring in Clause (1) of Article 176. If it be said that the session commenced on the 4th March 1952, for which date the Assembly was summoned to meet by the Governor under Article 174, it is clear that on the 7th March the session had already commenced and consequently any address given by His Excellency would be an address under Article 175. If, however, it be held that a session of the Assembly does not commence until the Members have been sworn in under Article 188 and the Speaker has been elected under Article 178, then the address of the Governor made to the Members today would clearly be an address given under Article 176. Clause (1), and Mr. Mohapatra's contention must fail.
On this question, which is somewhat difficult, I would reserve my opinion because the petition can be disposed of on other grounds. The difficulty arises mainly because the election of the Speaker of the Assembly under Article 178 is part of the business of the Assembly and in one sense, may be said to take place after the commencement of the Session, such commencement having taken place immediately after swearing in of Members under Article 188. I would, however, prefer not to express any opinion on this point unless it is fully argued.
9. The main difficulty in admitting this petition arises from Clause (2) of Article 212 which expressly bars the jurisdiction of any Court to interfere with an order passed by an Officer of the Legislature regulating the procedure or the conduct of the business of the Legislature, in exercise of the powers vested in him either by the Constitution (sic). The rules adapted by the Speaker of the Orissa Legislative Assembly, in exercise of the powers conferred by Clause (2) of Article 208 of the Constitution have been shown to us, and they clearly lay down that it is the primary function of the Speaker to regulate the conduct of the business and procedure of the Assembly.
Rule 39 of the said rules further confers on him the power of deciding all points of order that may arise. The question which he has to decide in this case is whether the discussion on the address of the Governor to be delivered today would come under Clause (2) of Article 176, or else whether it would be a discussion of an ordinary resolution as permitted by the rules, of an address delivered under Article 175. The rules expressly confer on the Speaker the jurisdiction to decide this question for purpose of regulating the procedure and business of the Assembly, and by virtue of Clause (2) of Article 212, we are clearly barred from issuing any direction in exercise of our powers under Article 223.
10. It was (sic) that the interim Speaker who was functioning till yesterday had already (sic) on this question when it was raised as a point of order yesterday. But the new Speaker has been elected now, and it is always open to any Member of the Assembly to raise this question again and invite his decision.
11. On the facts of the present case, therefore, I am not satisfied that we have jurisdiction, to interfere, or else that the merits of the case call for interference.