TMI Blog1987 (12) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... d to take judicial notice of the said proceedings under section 57 of the Indian Evidence Act, 1872. We are, therefore, of the view that the two Proclamations of Emergency were kept in force by virtue of the resolutions passed by the Houses of Parliament until they were duly revoked by the two Proclamations which were issued by the Vice-President acting as President of India in the year 1977. Since the two Proclamations of Emergency were in force when the House of the People (Extension of Duration) Act, 1976 (Act 30 of 1976), was passed, its validity cannot be questioned. The Lok Sabha passed the Finance Act, 1976, during the extended period of its duration and, therefore, the validity of the Finance Act, 1976, also cannot be questioned. In view of the foregoing, this petition should fail and it is accordingly dismissed. - - - - - Dated:- 17-12-1987 - Judge(s) : E. S. VENKATARAMAIAH., K. N. SINGH JUDGMENT The judgment of the court was delivered by VENKATARAMIAH J.-Shri Baburao alias P. B. Samant, the petitioner herein, who has argued this case in person with great clarity and precision has raised the following contentions in this petition : (1) The Proclamation of Eme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Houses of Parliament approving the said Proclamation of Emergency as required by clause (2) of Article 352 of the Constitution as it stood during the relevant time had not been published in the Official Gazette of the Government of India. The petition is opposed by the Union of India. The Union of India has contended that the two Proclamations of Emergency had been duly issued by the President and approved by the resolutions of the two Houses of Parliament as required by law and that actually the Proclamation of Emergency of December 3, 1971, had been revoked by the Vice-President acting as the President by the Proclamation dated March 27, 1977, and the Proclamation of Emergency dated June 25, 1975, had been revoked by him by the Proclamation dated March 21, 1977. In the month of February, 1976, when the House of the People (Extension of Duration) Act, 1976 (Act 30 of 1976), was passed by Parliament, both the Proclamations of Emergency were in force and therefore Parliament was entitled to extend the period of the House of the People for a period not exceeding one year at a time. The Finance Act, 1976, passed during the period so extended had been, therefore, validly passed. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y thereof was threatened whether by war or external aggression or internal disturbance, he might by Proclamation make a declaration to that effect. The Proclamation issued under clause (1) of article 352 of the Constitution could be revoked by a subsequent Proclamation. It was required to be laid before each House of Parliament and the Proclamation would cease to operate at the expiration of two months unless before the expiration of that period, it was approved by resolutions of both Houses of Parliament. On December 3, 1971, when India was attacked by Pakistan, the President issued a Proclamation under clause (1) of article 352 as he was satisfied that the security of India had been threatened by external aggression. The said Proclamation was published in the Official Gazette on the same date. It reads thus: "MINISTRY OF HOME AFFAIRS NOTIFICATION New Delhi, 3rd December, 1971 C.S.R. 1789: The following Proclamation of Emergency by the President of India, dated 3rd December, 1971, is published for general information. Proclamation of Emergency In exercise of powers conferred by clause (1) of article 352 of the Constitution, I, V. V. Giri, President of India, by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed under a notification dated June 26, 1975, in the Official Gazette. It read thus : MINISTRY OF HOME AFFAIRS NOTIFICATION New Delhi, the 26th June, 1975 G.S.R. 353 (B).-The following Proclamation of Emergency by the President of India, dated the 25th June, 1975, is published for general information : Proclamation of Emergency In exercise of the powers conferred by clause (1) of article 352 of the Constitution, 1, Fakkhruddin Ali Ahmed, President of India, by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by internal disturbance. New Delhi, the 26th June, 1975 Sd. F. A. Ahmed, President No. 11 /16013/1/75-S P (D-11) S. L,. Khurana, Secy. " A resolution was moved in the Lok Sabha on July 21, 1975, seeking the approval of the Lok Sabha to the Proclamation of Emergency dated June 25, 1975, and also the order of the President dated June 29, 1975, made in exercise of the powers conferred by sub-clause (b) of clause (4) of article 352 of the Constitution (as it stood then) as applying to the State of Jammu and Kashmir. The Proclamation of Emergency was also laid on the table of the Lok Sabha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " 2. Extension of duration of the present House of the People. The period of five years (being the period for which the House of the People may, under clause (2) of article 83 of the Constitution, continue from the date appointed for its first meeting) in relation to the present House of the People shall, while the Proclamations of Emergency issued on the 3rd day of December, 1971, and on the 25th day of June, 1975, are both in operation, be extended for a period of one year: Provided that if both or either of the said Proclamations cease or ceases to operate before the expiration of the said period of one year, the present House of the People shall, unless previously dissolved under clause (2) of article 83 of the Constitution, continue until six months after the cesser of operation of the said Proclamations or Proclamation but not beyond the said period of one year." The Finance Act, 1976, was passed by the Lok Sabha after its period was extended as stated above and by the Rajya Sabha in the early part of the year 1976 and it received the assent of the President on May 27, 1976. Aggrieved by the levy of the rates of income-tax and of wealth-tax as provided by the Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Proclamations of Emergency were in fact in operation on February 16, 1976, when the first Act was passed as also on November 24, 1976, when the second Act, 109 of 1976, was passed. It is not possible for us to accept the submission of the petitioners that for the various reasons assigned by them, the first proclamation must be deemed not to be in existence and that the second proclamation must be held to have been issued mala fide, and therefore, non est. The evidence produced before us is insufficient for recording a decision on either of these matters. It must follow that the two Acts by which the duration of the Lok Sabha was extended are valid and lawful. The 40th and the 42nd Constitutional Amendments cannot, therefore, be struck down on the ground that they were passed by a Lok Sabha which was not lawfully in existence." The petitioner, however, contended before us that the above decision had been rendered on insufficient material and that if it was open to any person to place before this court sufficient material, the court should reconsider the question of the validity of the Proclamations of Emergency. Assuming that it is possible for this court to reopen the case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liament which had the effect of continuing the duration of emergency, being of the same character as the Proclamations themselves, should have been published in the Official Gazette and in the absence of such publication, the Proclamations of Emergency should be deemed to have become ineffective on the expiry of the period of two months from the issue thereof. Article 352 of the Constitution does not prescribe that a Proclamation of Emergency should be published in the Official Gazette. " Proclamation of Emergency is defined in article 366(18) thus : " 366(18) 'Proclamation of Emergency' means a Proclamation issued under clause (1) of article 352." Article 366(19) of the Constitution defines a " public notification thus : " 366(19) 'public notification' means a notification in the Gazette of India, or, as the case may be, the Official Gazette of a State." Wherever the Constitution expressly requires a certain notification should be published in the Official Gazette, it has stated that the said notification shall be published in the form of a public notification. By way of an illustration, reference may be made to article 364(1) of the Constitution which reads thus: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... States empowering Parliament to legislate with respect to any matter in a State List in national interest ; (v) article 252-Resolutions of the House or Houses of State Legislatures of two or more States to enable Parliament to legislate on a State subject or adoption of a, law made under article 252 by a State Legislature which had not requested Parliament to make it before it was passed by Parliament; (vi) article 312-Resolution passed by the Council of States creating a new All-India Service ; (vii) article 315(2)-Resolutions of the House or Houses of State Legislatures of two or more States to enable Parliament to provide a common Public Service Commission to such States; (viii) article 320(5)-Amendment or repeal of Regulations made by the President or the Governor under the proviso to article 320(3); (ix) Original article 352(2)(c) and the present article 352(4)-Approval of Proclamations of Emergency by the Houses of Parliament (x) article 356(3)-Approval of Proclamation made under article 356(1); (xi) article 360(2)-Approval of the Proclamation of financial emergency by the Houses of Parliament ; (xii) Proviso to article 368-Resolutions to be passed by the State Legislatures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This court held that the mere passing of the resolution of the Council without further publication or promulgation of the law was not sufficient to make the law operative and the Jaipur Opium Act was not, therefore, a "valid law. It further held that the said Act was not saved by section 3(b) of the Jaipur Laws Act, 1923, as it was not a valid law in force on November 1, 1924, and the mere addition of a clause in 1938 that it came into force from 1924 was of no use. In State of Punjab v. Satya Pal Dang [1969] 1 SCR 478; AIR 1969 SC 903, one of the questions which arose for consideration was whether the decision of the Governor proroguing the Legislative Assembly was required to be communicated to each and every member of the Legislature before it could become effective. This court held that article 174(2) of the Constitution which enabled the Governor to prorogue the Legislature did not indicate the manner in which the Governor was to make such orders known and that he could follow the well-established practice that such orders were ordinarily made known by a public notification which meant no more than that they were notified in the Official Gazette of the State. There was such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cable, publish it in such form and manner as the Chairman may, from time to time, direct. " The Rules of Procedure of both the Houses of Parliament are made under article 118(1) of the Constitution which reads thus : " 118.(1) Each House of Parliament may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business. (2) Until rules are made under clause (1), the rules of procedure and standing orders in force immediately before the commencement of this Constitution with respect to the Legislature of the Dominion of India shall have effect in relation to Parliament subject to such modifications and adaptations as may be made therein by the Chairman of the Council of States or the Speaker of the House of the People, as the case may be ...... .." Section 57 of the Indian Evidence Act, 1872, requires the court to take judicial notice of the facts stated therein. Clause (4) of section 57 of the Indian Evidence Act, 1872, reads thus : " 57. The court shall take judicial notice of the following facts ...... (4) The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y part thereof with respect to any of the matters enumerated in the Provincial Legislative List or to make laws, whether or not, for a province or any part thereof, with respect to any matter not enumerated in any of the lists in the Seventh Schedule to this Act... (3) a Proclamation of Emergency (a) may be revoked by a subsequent Proclamation; (b) shall be communicated forthwith to the Secretary of State and shall be laid by him before each House of Parliament; (c) shall cease to operate at the expiration of six months, unless before the expiration of that period it has been approved by Resolutions of both Houses of Parliament." The Governor-General had issued a Proclamation in exercise of his powers under section 102(2) of the Government of India Act, 1935, declaring that a grave emergency existed, whereby the security of India was threatened, by war on September 3, 1939, on receipt of information from His Majesty's Government in the United Kingdom that a state of war existed between His Majesty and Germany and on September 29, 1939, the Defence of India Act, 1939, was enacted. The appellant in that case was convicted by the Additional Chief Presidency Magistrate at C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartments, or of any Provincial Government or any department of any Provincial Government'; (2) ' Proceedings of the Legislatures', which may be proved ' by the journals of those bodies respectively, or by published acts or abstracts, or by copies, purporting to be printed by order of the government concerned ' ; (3) ' Proclamations, orders or regulations issued by Her Majesty or by the Privy Council or by any department of Her Majesty's Government'; (4) 'The Acts of the Executive or the proceedings of the Legislature of foreign country', which may be proved 'by journals published by their authority, or commonly received in that country as such ', and in certain other ways not here material. In our opinion, the proceedings of Parliament fall under either the second or fourth of the categories set out above. It may be said that the reference in the second category to proceedings of ' the Legislatures ', following immediately upon the first category which is confined to acts, orders or notifications of Governments in British India, is to be taken as a reference to the Legislatures of British India only. We find it difficult, however, to believe that section 78 excludes any reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two months. A little delay in publishing the proceedings would not affect the validity of the resolutions. Let us take the case of an Act of Parliament. Under section 5 of the General Clauses Act, 1897, where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent of the President and unless the contrary is expressed, a Central Act shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. Even if there is some delay in the publication of the Central Act in the Official Gazette, its operation does not get suspended until such publication unless the contrary is expressed in the statute itself. While on the face of it, as observed, by Sir C. K. Allen in his Law and Orders (2nd Edn.), at page 132, it would seem reasonable that legislation of any kind should not be binding until it has somehow been " made known to the public, " that is not the rule of law and if it were, the be seriously and most inconveniently impaired ". The reasoning was that statutes at least received publicity of Parliamentary debate and that therefore, they were ..... X X X X Extracts X X X X X X X X Extracts X X X X
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