As luck would have it, the then Members of Parliament took their parliamentary duties and obligations with utmost sincerity and seriousness and so the actual working of Article 85 of the Constitution posed some problems. This led to the First Amendment to the Constitution.
The parliamentary debate of 16th May, 1951 shows that when the Constitution (First Amendment) Bill was moved by Prime Minister Jawaharlal Nehru, he pointed out that Parliament had been in continuous session since November (1950) and the session was likely to carry on. Under these circumstances, some “acute interpreters” might hold the view that Parliament had not met in 1951 strictly in terms of the Constitution since Parliament had not been prorogued and the President had not addressed it. This would lead to a curious situation that if Parliament met continuously, then it could be interpreted that Parliament had not met at all!
Pundit Jawaharlal Nehru on summoning of Parliament
This is what he said:
“[O]ne of the articles – for the moment – I forget the number – lays down that this House should meet twice a year and the President should address it. Now a possible interpretation of that is that this House has not met at all this year. It is an extraordinary position considering that time this House has labored more than probably at any time in the previous history of this or the preceding Parliament in this country.
We have been practically sitting with an interval round about Xmas since November and we are likely to carry on and yet it may be held by some acute interpreters that we have not met at all this year strictly in terms of the Constitution because we started meeting in November and we have not met again – it has not been prorogued – the President has not addressed Parliament this year.
Put it in the extreme way, suppose this House met for the full year without break except short breaks, it worked for 12 months, then it may be said under the strict letter of the law that is has not met at all this year. Of course that article was mean not to come in the way of our work but to come in the way of our leisure. It was indeed meant and it must meet at least twice a year and there should not be more than six months’ interval between the meetings. It did not want any Government of the day simply to sit tight without the House meeting. Therefore it wanted to compel it by the force of the Constitution and meet at least twice a year but without a big gap. That again by interpretation leaves the curious situation that if you continue meeting, you do not meet at all!”
When Prime Minister Jawaharlal Nehru replied to the debate on this aspect on 2nd June, 1951 he reiterated that according to the strict meaning of Article 85 of the Constitution, Parliament had not “met” at all in 1951 since it had been summoned in 1950. It was to overcome this difficulty that an amendment was proposed to Article 85 of the Constitution. In another context, it was pointed out that Article 85 of the Constitution raises the questions – who should summon Parliament; who can summon Parliament and who only can summon Parliament.
Giving a reply, he said that under the Constitution, only the President can summon Parliament and if he does not do his duty, then other consequences may well arise. Similarly, if Parliament is not summoned within six months, it is a deliberate breach of the Constitution by the President and the Government of the day. It must be presumed that some final authority will function according to the Constitution and if it does not “then you pick the axe and cut off the head, whether he is a President or anybody.”
This is what was said by Prime Minister Jawaharlal Nehru:
“It was because of this actual difficulty, that it was thought that this article might be changed so that this question of being summoned twice a year need not be there, because if we are meeting all the time, then are we to break up simply to be summoned again? Of course, we may be summoned twice a year or more…………
That is to say, this article 85 actually deals, in the passive and the active, in both the voices, with who should summon, who can summon and who only can summon – there is no other authority which can summon, unless of course there is a breach of the Constitution and other things come into play. Therefore, as the Constitution is, it is only the President who can summon it, and if the President does not do his duty then other consequences may well arise. ………
………… [O]ur saying, “the President shall summon” is much more mandatory on the President than saying, as it is said here, “The Houses of Parliament shall be summoned” and the President shall do so. The meaning is the same but if the President does not summon within six months it is a deliberate breach of the Constitution by the President and the Government of the day. It does not require any argument – you catch him immediately he has not done a duty laid down, which is here an indirect duty. May be some minor excuse the President may advance, or not.
Therefore, in a sense you bind down the President – and when I say the President I mean the Government of the day which is also bound down by the Constitution to do a certain thing. If they do not do it then other consequences follow. They have deliberately flouted the Constitution. What happens then? Well, many things may happen. Parliament then presumably comes into conflict with the usurping Government, or the Government that carries on without the goodwill of Parliament and the people. Well, a conflict occurs. That kind of a thing would, if it occurs, presumably be decided by the normal constitutional means – other means may come into play, one does not know. …….
………… After all you have ultimately to have some final authority which you presume will function according to the Constitution. If it does not then you pick the axe and cut off the head, whether he is a President or anybody. That is the normal practice in Constitutions: that is the normal practice in revolutions. I do not understand the middle practice of confusing a Constitution with a revolution and a revolution with a Constitution. I therefore, submit that the wording suggested is the right wording. It does not endanger the Constitution; it does not give any special or additional powers to the President to come in the way. Such powers as he gets, such mischief as the future President might do, is always inherent in the nature of things and inherent also in the power of the people to put an end to the President who does that mischief.”
The amendment proposed by Prime Minister Jawaharlal Nehru was then accepted and Article 85 of the Constitution was amended to read as follows:
“85. Sessions of Parliament, prorogation and dissolution –
(1) The President shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.
(2) The President may from time to time – (a) prorogue the Houses or either House; (b) dissolve the House of the People.”
The corresponding provision for the Legislative Assembly for the States (Article 174 of the Constitution) was amended to read as follows:
“174. Sessions of the State Legislature, prorogation and dissolution –
(1) The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.
(2) The Governor may from time to time –
(a) prorogue the House or either House; (b) dissolve the Legislative Assembly.”
Although no authority other than the President or the Governor could summon the House, no discretion was conferred on either of them to do so, on his own or suo moto. Clearly, therefore, the President or the Governor can summon the House only on the aid and advice of the Council of Ministers.