The Facts of the Case

At the Fourth General Elections Congress won 43 seats in the Legislative Assembly which has a membership of 104. The other parties (none of which had a majority in the House) combined and formed the United Front Party. A Ministry was formed under Sardar Gurnam Singh. Some of the respondents in the present case Minister and members supporting the Ministry. Lt. Col. Joginder Singh Mann and Dr. Baldeo Singh were elected Speaker and Deputy Speaker respectively. On November 22, 1967, 18 members of United Front Party including Sardar Lachman Singh Gill defected and formed a new party–Punjab Janta Party.

With the support of the Congress a new Ministry was formed under Sardar Lachman Singh Gill on November 25, 1967. The Legislative Assembly was then summoned to meet on February 22, 1968. As the budget was to be considered, the Financial Statement was discussed on 4, 5 and6 March. On the last day, following some disturbance in the House and consequent disciplinary action, a Resolution was moved expressing non-confidence in the Speaker. The House granted leave and then adjourned itself to the following day.

When the Session commenced Sardar Gumam Singh raised a point of order under rule 112(1) of the Rules of Procedure made under Art. 208 of the Constitution that there was a contravention of Art. 179(c) in moving the Resolution. The Speaker declared the motion of non-confidence to be unconstitutional and deemed not to have been moved.

Another Resolution was then moved which led to rowdy scenes. Speaker purporting to act under Rule 105 (1) adjourned the Assembly for two months. A political crisis then arose. The budget had to be adopted before March 31, 1968 but the House stood adjourned to May 6, 1968. No expenditure in the State could, therefore, be made from April 1, 1968. The Governor then acted under his constitutional powers. On March 11, 1968 the Governor prorogued the Assembly under Art. 174(2) (a) (2). The order of the Governor was caused to be printed in the State Gazette the same day by the Chief Secretary and copies of the Gazette were dispatched to the Secretary of the Assembly, the Speaker and other members on the following day.

On March 13, 1968 the Governor promulgated Ordinance No. I of 1968 (The Punjab Legislature Regulation of Procedure in Relation to Financial Business Ordinance, 1968). On March 14, 1968 the Governor summoned the Legislative Assembly under Art. 174(2) fixing March 18, 1968 for its sitting and under Art. 175(2)(a) directed the Assembly to consider:

(i) Supplementary Estimates, 1967-68 (Second Installment). (ii) The Punjab Appropriation Bill, 1968, relating to the Supplementary Estimates, 1967-68 (Second Installment).

(iii) Demands for Grants as included .in the Budget Estimates for the year 1968-69.

When the Legislative Assembly met it began by considering certain other matters such as privilege motions, arrangement for Watch and Ward’ Staff. The Speaker then read the Message of the Governor referred to above. Sardar Gurnam Singh rose to move a point of order but the Speaker asked him to wait and the House attended to some other matters. It granted leave of absence to one member who was ill and the Speaker named the Panel of Chairmen. The Ordinance was then placed on the Table of the House.

The Provisions of the Ordinance

The Ordinance consisted of four sections. Section 3 provided that the sitting of either House of Legislature was not to be adjourned without the consent of that House until completion of financial business, and section 4 provided that the annual financial statement laid before the House under Art. 202 or the statement showing the estimated amount of any supplementary or additional expenditure had been laid under Art. 205 was not to lapse by reason of the prorogation of the House and that it would not be necessary to relay such statements before the House.

Sardar Gurnam Singh again rose to urge his point of order. He was reminded that a Resolution to the same effect was to be brought before the Assembly, but he continued with his point. He stated that the Ordinance was issued when the Assembly was in Session and the House was summoned by the Governor before it was prorogued. A debate, punctuated with uproar in the House, followed. It appears that the Speaker at first was of the opinion that he had no power to adjourn the House in view of section 3 of the Ordinance but Sardar Gumam Singh maintained that he had such power under Rule 105.

The Speaker observed: “Yes, I can adjourn the (House) but what about the Ordinance?” Sardar Gumam Singh opined that there was no Ordinance. The Speaker then ruled that the House was prorogued not on 11th March but on the 18th and gave the ruling in the following words:

“The order by the Governor dated 14-3- 1968 summoning the House is also illegal and void and he had no power to resummon the House once adjourned under Rule 105 of the Vidhan Sabha Rules referred to above. Therefore, in accordance with my earlier ruling dated 7-3-68 the House stands adjourned for two months from that date. (The Sabha then adjourned) 5.05 p.m.”

The meeting had lasted 3 hours. The Chief Minister then moved that the consideration of the Financial Business be completed within half an hour. There was uproar in the House. The motion was carried. Next the Estimates of Expenditure, the Demands for Supplementary grants, the two Appropriation Bills and the other demands were passed. A Resolution that the Speaker be removed from office was moved and forwarded to the Leader of the House after granting leave and the Assembly was adjourned to meet at 2 p.m. on April 5, 1968. The time taken is not stated but there is reason to think that the limit of 1/2 hour was not exceeded.

The Bills were then transmitted to the Legislative Council certified by the Deputy Speaker that they were Money Bills. An objection was raised that the certificate under Art. 199(4)(1) must be signed by the Speaker of the Legislative Assembly. This was overruled by the Chairman and the Bills were passed. They were then placed before the Governor with another certificate of the Deputy Speaker. The Governor signified his assent.

Writ Petitions in the High Court

Two writ petitions were then filed in the High Court. Civil Writ Petition (1226/68) was filed by Shri Satya Pal Dang, M.L.A. against the State of Punjab. the Chief Minister, the finance minister, the Secretary to the Governor, the Secretary Legislative Assembly and the Deputy Speaker.

The second petition (1227/ 68) was filed by 6 members and was directed against those named in the other petition and also joined the Speaker, the Chairman and Deputy Chairman of the Legislative Council, the Controller of Printing and Stationery and one Sardar Kirpal Singh, M.L.A. The arguments in the High Court ranged over a wide field. They were summarized into eight points by Justice S.B. Capoor which, it is common case, represent the essence of the matter.

Stated briefly, the arguments were that the prorogation took effect on the 18th March. As a consequence the summoning of the Legislature before prorogation was invalid. These points go together. Since both the prorogation and resummoning of the Legislature were invalid the House continued to be in session although adjourned. Since the Legislature was in “Session”, the Ordinance could not be passed and it was a fraud upon the Constitution.

Section 3 of the Ordinance was specially attacked as unconstitutional. The ruling of the Speaker given on March 18, 1968 was not open to challenge in courts and the further proceedings in the Assembly were illegal. Even if everything was regular it was in issue whether the Speaker alone was entitled to endorse a Money Bill and certify it to the Legislative Council and the Governor and since the certificates were by the Deputy Speaker, the two Acts were said to be ultra vires.

In the High Courts the Full Bench unanimously held against the petitioners on the question of the prorogation and resummoning of the Legislature which were held to be regular and legal. The Full Bench also held unanimously that the ruling given by the Speaker on the 18th March made the later proceedings illegal. There was a difference ‘on the point that the certification by the Deputy Speaker in place of the Speaker was valid. The majority holding that it was not.

Similarly, a majority of Judges held that “(4) There shall be endorsed on every Money Bill when it is transmitted to the Legislative’ Council under Article 198, and when it is presented to the Governor for assent under Article 200, the certificate of the Speaker of the Legislative Assembly signed by him that it is a Money Bill.” section 3 of the Ordinance was unconstitutional and invalid and the Full Bench unanimously held the Appropriation Acts to be unconstitutional. ‘

Case in Supreme Court

In dealing with these appeals the Supreme Court followed the sequence of events and examine the legality and constitutionality of each happening.

The Prorogation

The question here was did the Governor possess the power to prorogue the Legislature and was his action bad merely because he was making way for the resummoning of the Legislature after passing an Ordinance under Art. 213(1).

The power under Art. 213 is available to the Governor when the Assembly is not in session, The position after the 7th March adjournment of the Assembly was this:

The Assembly was in session but it was put in a state of inaction for 2 months by the adjournment which the Governor had no power to rescind and the Speaker would apparently not be prepared to recall. Time was running out and the Budget Session of the Assembly had to reach a conclusion before March 31. After that date no money could be drawn from the Consolidated Fund [Art. 266(3)]. The Governor thus had to act and act quickly to put back the Legislative machinery of the State into life. Only two courses were open. One was for the Ministers to ask the Speaker under Rule 16 to recall the Assembly which was, perhaps, attempting the impossible. The other was to prorogue the Assembly to get rid of the adjournment and then to resummon the Assembly. The second was not only a reasonable solution but the one most properly adapted to achieve a constitutional result and it was followed.

The action of the Governor may now be considered. Article 174(2) which enables the Governor to prorogue the Legislature does not indicate any restrictions on this power. Whether a Governor will be justified to do this when the Legislature is in session and in the midst of its legislative work, is a question that does not fall for consideration here. When that happens the motives of the Governor may conceivably be questioned on the ground of an alleged want of good faith and abuse of constitutional powers.

The bona fides of the Speaker’s ruling adjourning the Assembly for so long as 2 months when the Financial Statement and the budget were on the agenda and time was running out are more in question than the conduct of the Governor. No mala fides were attributed to the Governor except to say that he acted in excess of his powers or in colorable exercise of them. The power being untrammeled by the Constitution and an emergency having arisen, the action was perfectly understandable.

We shall presently show that the Governor acted not only properly but in the only constitutional way open to him. There was thus no abuse of power by him, nor can his motives be described as mala fide as has been said by one of the learned Judges in the judgment under appeal. It is a matter of regret that such a conclusion was reached without any plea or material.

Under the business Rules, the Chief Secretary deals with all questions relating to the Assembly and the Council and the Governor in notifying it in the Gazette through the Chief Secretary was acting under the Business Rules. As a matter of fact copies of the notification were dispatched on the 12th and presumably reached the Secretary of the Assembly and also the Speaker the same day. Therefore, the Governor’s act became a public act after the notification. This was on the 11th March 1968. We are also satisfied that there was no other motive than to set right the constitutional machinery by the invocation of the powers conferred expressly on the Governor.

Power of legislation by Ordinance is as wide as the power of Legislature

After the prorogation there was no further curb on the legislative power of the Governor. The power of legislation by Ordinance is as wide as the power of Legislature of the State. Article 213 (2) provides that an ordinance promulgated under that Article has the same force and effect as an Act of the Legislature of the State assented to by the Governor except that it must be laid, before the Legislative Assembly of the State and the Legislative Council (where there is one) and expired after the expiration of 6 weeks or earlier if it is withdrawn by the Governor or disapproved by the Legislature of the State.

Counsel argued that the power of the Governor is only to pass a law under the second and third of the Legislative Lists and not under Art. 209. We see no force in this submission which is not supported by any provision of the Constitution or authority of this Court. In fact, the powers of the legislature are expressly indicated in Art. 209 and the Governor must therefore possess an equal power unless there be an expression of intention to the contrary in the Constitution. There is no such expression of intention and none can be implied from Arts. 245 and 246 in the face of the special provisions of Art. 213(2). The Ordinance was therefore, validly enacted under the power derived from Arts. 209 and 213.

Article 209 is intended to speed financial business in the legislatures so that attempts to filibuster, adjourn or otherwise delay such business may be avoided. If ever there was an occasion for the regulation of procedure in the legislature of the State in relation to the financial business by a law under Art. 209, it was this. The Legislature could not be allowed to hibernate for 2 months while the financial business languished and the constitutional machinery and democracy itself were wrecked. To suggest that the President’s rule should have been imposed instead, it is to suggest a line of action which a party not in majority would have obviously preferred but it would have cut at the root of parliamentary government to which our country is fortunately committed.

If by adopting the present course parliamentary government could be restored there was neither an error of judgment nor a mala fide exercise of power. There was nothing colourable about it. It was intended to achieve a definite purpose by using the constitutional power of the Governor.

The resummoning of the Legislature immediately afterwards was also a step in the right direction. It set up once again the democratic machinery in the State which had been rudely disturbed by the action of the Speaker. Knowing that it would ordinarily take much time to finish the Financial Business, that time was short and attempt would be made to delay matters, the Ordinance created a law which Art. 209 enables to be enacted for the speedy disposal of financial business. The matters were, therefore, left in the hands of the Legislature with the only restriction that the Legislature would not adjourn except when a House by a majority desired it. This respected the democratic right of the Legislature but put down the vagaries of action calculated to delay the business. The measure was eminently healthy and as it was also legal the Assembly was bound by the law thus enacted.

Reference

The Article is and edited extract from the Judgment State Of Punjab vs Sat Pal Dang & Ors  (1968)