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Yogendra Nath Handa and ors. Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. Nos. 203, 204 and 219 of 1966
Judge
Reported inAIR1967Raj123
ActsConstitution of India - Articles 19, 21, 176, 194(1), 212 and 226; Conduct of Business Rules - Rules 14, 15 and 16
AppellantYogendra Nath Handa and ors.
RespondentState and ors.
Advocates: M. Mridul, Adv. in No. 203,; C.L. Agarwal, Adv. in No. 204 and;
DispositionPetitions dismissed
Cases ReferredSaradhakar Supakar v. Speaker Orissa Legislative Assembly
Excerpt:
.....any right to put questions, or make submissions to the governor even before he has proceeded to address the assembly. 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. it lays down clearly that: accordingly, we are satisfied that the petitioners have not made out a case for holding that the governor had not delivered his address. 9. apart from the provisions of article 212 of the constitution, the powers of disciplinary control..........be said to have begun only from 7th march, 1952, as it will be deemed to have begun on the day the governor addressed it. after adverting to certain replies given by dr. ambedkar in the constituent assembly when article 87 of the constitution was being discussed, the learned judges observed as follows:'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.....
Judgment:
ORDER

1. We have before us three writ petitions under Article 226 of the Constitution filed by three members of the Rajasthan Legislative Assembly respectively, by which they seek to challenge the validity of certain proceedings of the Rajasthan Legislative Assembly taken on 26th February, 1966 and 28th February. 1966, and pray for issuances of appropriate writ, direction or order against the respondents. As the writ petitions raise certain common questions, they can conveniently be dealt with together.

2. Writ petitions of Servashri Yogendra Nath Handa and Manikchand Surana were argued by Shri C.L. Agarwal and that of Shri Ramanand Aggarwal was argued by Shri R.K. Garg The writ petitions referred to certain events that took place in the Rajasthan Legislative Assembly on 26th Feb 1966 and 28th February 1966, and they are like this.

3. The Governor of Rajasthan summoned the Rajasthan Legislative Assembly to meet for its budget session on 26th February, 1966, at 11.00 a.m. Accordingly the Assembly met in the Assembly Hall on 26th February. 1966. The Governor of Rajasthan entered the Hall to deliver his address under Article 176 of the Constitution However before the Governor could deliver his address, one of the three petitioners namely, Shri Ramanand Aggarwal started addressing the Governor about his having issued certain Ordinances and for some other actions of his and he submitted that it would have been better of instead of issuing Ordinances, the necessary. Bills were introduced in the Assembly itself At this the Governor is said to have taken offence and he ordered the Serjeant-at-Arms of the Assembly to turn out Shri Ramanand Aggarwal from the Assembly Hall and accordingly the Serjeant-at-Arms, respondent No. 5, forcibly removed Shri Ramanand Aggarwal from the Assembly Hall. While Shri Ramanand Aggarwal was being so removed, another member Shri Ram Kisan is said to have protested against the treatment meted out to Shri Aggarwal. but this had no result and on the contrary Shri Ram Kishan was ordered by the Governor to be removed from the Assembly Hall and the Serjeant-at-Arms forcibly removed him as well. The protest was repeated by Shri Umrao Singh Dhabaria, another member of the Rajasthan Legislative Assembly, and he suffered the same fate. Servashri Yogendra Nath Handa and Manik Chand Surana were amongst those who also protested in turn and they too were removed. It is averred that in this way 12 members of the Assembly were removed from the Assembly Hall under orders of the Governor.

Thereafter, it is alleged, that on a motion by Shri Maharawal Laxman Singh, Leader of the Opposition Group, a resolution was passed by the House that the address of the Governor may be taken to have been read. The Governor then left the Assembly Hall. The meeting of the Assembly was then over, but it met again in the after-noon when some of the members, who had been expelled by the Governor, attended the session, 27th February, 1966, was a holiday and, therefore, the Assembly met again on 28th February, 1966. On that day Shri Ram Prasad Ladha, respondent No. 6, moved a resolution in the House to the effect that the conduct of all the 12 members of the Rajasthan Legislative Assembly including the petitioners amounted to obstruction to the Governor in reading his address and it also amounted to improper and indecent act which was also contempt of the Constitution and insult to the Nation and, therefore, these 12 members be suspended till the end of the current session. Certain members of the House including the petitioner Shri Manik Chand Surana raised objections about the admissibility of this motion, but the Speaker, after three hours discussion, admitted the motion and this motion expelling the 12 members including the petitioners for the remaining part of the current session was passed. The same day a motion was moved by two of the petitioners and some other members to the effect that the Governor had committed breach of privileges of the members and of the House by turning out certain member of the House from the Assembly Hall with the aid of the Serjeant-at-Arms, as the Governor had no authority whatsoever in this behalf When this motion was moved, the Speaker of the Assembly, respondent No. 4, reserved it for his further consideration saying that he would give his ruling after studying the various constitutional points raised by the movers. On 3rd March, 1966, one of the members of the Assembly moved a motion of thanks for the Governor for his address. At this, some members raised objections that as the address had not been delivered and the causes for summoning the Assembly not declared, there was no occasion for conveying thanks to the Governor. When this objection was raised the Speaker gave his ruling to thp effect fhat as the Governor had read some portions of his address occurring in the beginning and some at the end and as it had already been taken as read by the House, the objection raised had no force.

4. The petitioners claim that as members of the Legislative Assembly, their freedom of speach and liberty was unfettered vide Article 194(1) of the Constitution and the Governor had acted wholly without jurisdiction in ordering their expulsion from the Assembly Hall on 26th February, 1966. At is submitted that the petitioners were within their legal rights to make submissions and protest to the Governor. According to the petitioners, it was the Speaker alone who could control the proceedings of the House and decide about the commission of any breach of discipline or otherwise by any member of the House and to take appropriate action if necessary. The petitioners further urged that the Governor was not entitled to refuse to address the Legislative Assembly as directed by Article 176(1) of the Constitution or to refuse to inform it of the causes for its summon. It is also submitted that the address could not he taken to have been read when, in fact, it was not read simply because the Assembly passed a resolution. In the circumstances it is pointed out that without an address of the Governor the subsequent proceedings of the Assembly cannot be taken to be valid. Taking their stand on this ground the petitioners urge that the resolution moved by Shri Ram Prasad Ladha and which was passed by the Assembly for expulsion of the petitioners for remaining part of the session was illegal and without jurisdiction.

In the alternative it is urged that even if such a motion could have been moved before the House, it was necessary for the House to first consider the question as to whether the Governor had committed any impropriety or illegality in taking the law in his own hands by ordering the removal of the members of the Assembly by the Serjeant-at-Arms. Then, it is urged that the House should have supplied each individual member with the definite charge against him and the action could not have been taken on the vague allegation that the members had obstructed the Governor in discharge of his constitutional duty or that their action was contempt of the Constitution and insult to the Nation. In this behalf it is urged that for any breach of privileges of the House by any member a through enquiry by a committee to be appointed by the House was necessary any action could have been taken only after the report of the committee. In the result, it is urged that the action taken against the petitioners was mala fide and was stirred by the motive to crush the strength of the opposition during the budget session.

On these allegations this Court is asked to declare:

(1) that the Governor had no right or jurisdiction to take any disciplinary action against any of the members of the House by turning them out from the Assembly Hall through the Serjeant-at-Arms or any other officer;

(2) that it should be held that the Governor had not addressed the Assembly in accordance with Article 176(1) of the Constitution and consequently the entire proceedings of the Rajasthan Legislative Assembly were absolutely null and void:

(3) that a mandamus be issued to the respondents that they should treat all the proceedings of the Assembly in connection with the taking of the disciplinary action against the petitioners as null and void and that a mandamus be issued to the Speaker and the Legislative Assembly itself to set aside all its proceedings; and

(4) that the Governor be directed by a writ of mandamus to address the Legislative Assembly after calling it and informing it of the causes of its being summoned and the Assembly be directed to refrain from conducting its business till the Governor so addresses the Assembly.

5. Shri Ramanand Aggarwal has limited his prayer to (i) quashing the order of the Governor dated 26th February, 1960, expelling the petitioner from the House; and (ii) issuing an order or direction restraining the Marshall and the Government of Rajasthan from enforcing the order of the Governor punishing the members of the House. In this writ petition the only respondents are the Governor of Rajasthan and the Marshall of the Rajasthan Legislative Assembly. He claims that he has a fundamental right of free speech under Articles 19 and 194(1) of the Constitution of which he could not have been deprived under orders of the Governor. It was further urged that fundamental right of the petitioner under Article 21 of the Constitution was also invaded by the Governor.

6. The petitioners have relied on Article 19 of the Constitution of India, but we think that apart from the suspension of this Article during the period of emergency consequent to the proclamation of the President under Article 358 of the Constitution of India, it does not come into picture so far as the present case is concerned. The fundamental rights under Part III of the Constitution of India including the right of freedom of speech and expression under Article 19, or that of protection of life and personal liberty under Article 21 thereof, are guaranteed for all citizens of this country and should not be confused with the constitutional rights under Article 194(1) including the special right of freedom of speech in the House which is available only to the members of the Legislature over and above the fundamental rights. The real grievance of the petitioners in these cases is about the alleged infringement of their constitutional rights. The real grievance of the petitioners in these cases is about the alleged infringement of their constitutional rights or privilege under Article 194(1), but the proper forum to raise questions relating to them is the House. The argument about invasion of fundamental rights under, Articles 19 and 21 has been raised in vain, because there is no allegation that any member's personal liberty or his right of freedom of speech was violated the moment he was brought outside the precincts of the House and left as a free ordinary citizen as distinguished from the member of the Legislative Assembly. Freedom of speech available under Article 194 is subject to the provisions of the Constitution and to the rules and standing orders regulating the procedure of the Legislature.

Article 170 under which the Governor is under a duty to address the Legislative Assembly at the commencement of the first session runs as under:

'Article 176. Special address by the Governor at the commencement of every session. (1) At the commencement of the first session after each general election to the Legislative Assembly and at the commencement of the first session of each year the Governor shall address the Legislative Assembly or, in the case of a Stale having a Legislative Council, both Houses assembled together and inform the Legislature of the causes of its summons.

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

Sub section (2) provides that the rules of procedure for the House shall make provision for the allotment lime for discussion of the matters referred to in such address and Rule 14 of the Rajasthan Legislative Assembly-Rules of Procedure and Conduct of Business, hereinafter to be referred as the 'Rules', provides for the allotment of time for the discussion of the matter referred to in the Governor's address in the House under Article 176(1) of the Constitution. Rule 15 of these Rules provides that on such day or days, or part of any day, the House shall be at liberty to discuss such matters referred to in such address on. a motion of thanks moved by a member and seconded by another member. Rule 16 provides for amendments that may be moved for such motion of thanks. In the circumstances we are not satisfied that prior to the stage contemplated by Rule 15 of the Rules, the members have any right to put questions, or make submissions to the Governor even before he has proceeded to address the Assembly.

Indeed, according to the petitioners themselves, in the absence of address by the Governor the proceedings before the House cannot be taken to have been validly commenced. The term 'session' connotes the silting together of the Legislative body for the transaction of business and the natural meaning of the term 'address' is 'to direct one's words to' or 'speak directly lo' or 'to present a formal address' (vide Chambers' Twentieth Century Dictionary) According to the scheme of the Constitution, therefore, the other business in the Assembly including putting of questions or the making of any speech by a member can only follow and not precede an address by the Governor. We are fortified in this view by a Division Bench cage of the Orissa High Court reported as Saradhakar Supakar v. Speaker Orissa Legislative Assembly, AIR 1952 Orissa 234. In Orissa Legislative Assembly certain newly elected members had been given notice of taking their oaths on 4th, 5th and 6th March, 1952 and 7th March. 1952, was fixed for the address of the Governor and other business was to be transacted thereafter. The question that arose for consideration of the learned Judges was as to from what date the session of the Assembly can be said to have begun and it was held that the Sessions can be said to have begun only from 7th March, 1952, as it will be deemed to have begun on the day the Governor addressed it. After adverting to certain replies given by Dr. Ambedkar in the Constituent Assembly when Article 87 of the Constitution was being discussed, the learned Judges observed as follows:

'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 state 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 WestBengal Legislative Assembly for the conduct ofits 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 shalladdress 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 Parliarmentary Practice justifies it.' (Underlining (bracketed herein : Ed.) is ours).

7. Thus, it is only after the Governor has delivered his address that the Assembly is given the opportunity to discuss the same and express its opinion and then proceed to business. We are therefore, unable to hold that the petitioners could legitimately claim any right to put questions to the Governor or make any kind of comments even before he had addressed the Assembly, in exercise of their right under Article 194(1) of the Constitution.

8. The next question is whether the Governor can be said to have addressed the Assembly, it is clear from the writ petitions themselves that according to the Speaker's ruling Governor read some portion of his speech from the beginning and a portion of his concluding speech and the House by its resolution took the speech as read. As we have observed above, what was of the essence of the matter in the address was the Governor, coming into direct and immediate communication with the representatives of the people, The speech was certainly directed to the members of the Legislative Assembly and the Governor came face to face with the representatives of the people and if, in the circumstances that arose as a result of the action of some of the members, the whole of the address was not read, then it was certainly open to the House to say that the address may be taken to have been delivered. Article 212 in such a situation will stand in the way of the petitioners calling in question the validity of such a proceeding. It is not a case of no address having been made at all. Some portions of that address had certainly been read and the petitioners have not told us that the portion actually read was of no consequence.

Accordingly, we are satisfied that the petitioners have not made out a case for holding that the Governor had not delivered his address. Thus, the subsequent resolutions of the Assembly dated 28th February, 1966, in the circumstances, cannot be said to be without jurisdiction or illegal as alleged.

9. Apart from the provisions of Article 212 of the Constitution, the powers of disciplinary control of the House over its members regarding their behaviour within the four walls of the House itself are wide The Legislative Assembly has all the powers, privilege's and immunities enjoyed by the House of Commons of the Parliament of the United Kingdom at the commencement of the Constitution (vide Article 194 of the Constitution) and dealing with such privileges, Erskine May in his 'Parliamentary Practice' has observed that it is the collective privilege of each House to decide what it will discuss and it has also the collective right to settle its own Code of Procedure. It may lay down its own rules of procedure and even may depart from them at its own discretion and for that alone it will not render its responsibility to any external authority for not following the rules it has laid down for itself it has also the implied right to punish its own members for their conduct in Parliament (vide May's Parliamentary Practice, 17th Edition, p. 60) in our view, therefore, it is not open to the petitioners to challenge the action of the Rajasthan Legislative Assembly in expelling them for the remainder of the session by its resolution dated 28th February, 1966, nor can they ask for any writ, direction or order for cancellation of the proceedings of the Rajasthan Legislative Assembly.

10. As regards the action of the Governor in expelling them from the Assembly Hall on 26th February, 1966, we are not persuaded to entertain that matter in the exercise of our discretionary powers under Article 226 of the Constitution and our reasons are three-fold: firstly, the petitioners and some other members have already moved a motion for breach of privilege by the Governor which, according to the petitioners, is still receiving the consideration of the Speaker; secondly, the petitioners themselves have been found to be in the wrong box inasmuch as they have been expelled from the House for the remainder of the session on account of their improper behaviour on the opening day of the session; and lastly, they were expelled during the address of the Governor, only to enable him to discharge his constitutional duty of delivering the address and to unable other members to hear him and they, later on, attended the subsequent meeting of the House on the same day in the afternoon. In the circumstances, all that we could have done was only to grant a relief in the nature of declaration.

While in an appropriate case the Court may give a mere declaratory relief, it should be given only where exceptional circumstances are made out. Mr. Garg has tried to make out that the order of expulsion by the Governor was in the nature of a punishment and as the Governor had, no authority to inflict such a punishment, his action was hull and void and we should quash it. It may be observed that the events after 26th February, 1966, had already moved much further and the House took disciplinary action against the petitioners and the petitioners alongwith some other members have moved a motion for breach of privilege against the Governor which is still pending. We do not consider it just and proper, in these circumstances, to enter into the merits of this question. It will be for the House to settle this matter for itself and we cannot anticipate its decision. Then Mr. Garg pointed out that he has limited his prayer only to seek relief against the Governor and the Marshall and he submits that we should not lake the facts mentioned in the other writ petitions into consideration. We are unable to accept this submission. The mere fact that while the other petitioners have given all the relevant facts and Shri Ramanand Agarwal has not chosen to do so, perhaps as a matter of strategy, should not make any difference. Writ petitions were heard one after the other and we have to bear in mind all the facts that have come to our notice regarding the happenings in the Assembly on 26th and 28th February, 1966.

Mr. Garg referred to us to Churchill's History of the English Speaking People and also cited some passages from 'The Law and Custom of the Constitution' by the Rt. Hon. Sir William R. Anson Volume I, Fifth Edition, p. 330-31 with a view to showing how Parliament and the Speaker in England vindicated their position against the autrocratic ways of Kings and argued that a Head of State cannot claim the power to ride rough-shod over the privileges of the members of the Assembly. These passages were, no doubt, quite interesting, but they were hardly of any assistance to us. In India there was no occasion for any conflict between the King and the Parliament. Here, it is the people who gave the Constitution unto themselves and our country is a Sovereign Democratic Republic. The Constitution has reserved power in the Parliament to impeach even the President. Our founding fathers did not consider it necessary to provide for impeachment of the Governor for the obvious reason that he is appointed by the President and holds office during his pleasure. Thus, the struggles for power in English history between the King and Parliament do not afford much guidance in considering the working of our Parliamentary institutions.

11. Mr. Garg lastly drew our attention to Special Ref. No. 1 of 1964, in re. Article 143 of the Constitution of India, AIR 1965 SC 745 and urged that it is open to us to examine the legality of the action of the Legislative Assembly and the Governor and as, in the present case, there has been a clear infringement of the petitioners' legal rights, we should interfere. We have no doubt about the powers of the High court in seeing that the various authorities created by the Constitution, including the legislatures and the Governors, remain within the bounds of their authority demarcated by our Constitution, but, as we have already observed, the matter regarding the alleged breach of privileges against the Governor is still pending with the Speaker and, therefore, we are not inclined to entertain matter it is primarily for the House to vindicate its privileges by its own processes if it considers it necessary to do so. According to the petitioners, everything happened in the House when the Speaker was occupying his chair by the side of the Governor. It will be for the Speaker and the House to say if the expulsion of the petitioners from the Assembly Hall on 26th February, 1966, had the tacit approval of the Speaker or the House. Although the petitioners have tried to gave it a colour of the breach of their fundamental right, the matter is essentially one of privileges of the members and the House vis-a-vis the Governor.

11A. In the circumstances, we do not find any substance in these writ petitions which we hereby dismiss in limine.


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