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Case Number

O.J.C No. 6 of 1952

Attorney(S)

H.Mohapatra

Judges

Hon'ble Mr. Justice Bachu Jagannadha Das

Acts

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Smart Summary

Judgment Summary — Panigrahi, J. (with concurring reasons of Narsimham, J.)

Factual and Procedural Background

This is an application under Article 226 of the Constitution of India by Sri Saradhakar Supakar, a member of the Orissa Legislative Assembly, seeking a writ against the Speaker and the Secretary of the Assembly. The petitioner prayed for directions (a) to exclude the Governor's address and any discussion thereof as provided for under Article 176, and (b) to direct that no meeting of the Assembly be held on 7th and 8th March 1952 for that purpose.

The relevant chronology and events set out in the opinion are: members were summoned to meet from 4th March 1952; a calendar of meetings (sent with the Secretary's notice) fixed 4th–5th March for administration of oaths, 6th March for election of the Speaker, and 7th March for the Governor's address followed by a motion of thanks. A point of order was raised (said to be on 5th) and overruled by the acting Speaker on 6th March, which prompted the present petition.

Legal Issues Presented

Whether the Governor's proposed address on 7th March 1952 is an address "at the commencement of a session" under Article 176(1) (thus attracting the allotment of time for discussion under Article 176(2)), or an address under Article 175 (which does not expressly provide for discussion).
Whether the first session of the Orissa Legislative Assembly had already "commenced" on 4th March 1952 (the date members were summoned to take oath), or whether the session commences only after the members have been sworn and the Speaker elected.
Whether Article 212 (and in particular Clause (2) thereof) bars the High Court from entertaining a writ under Article 226 directed at the Speaker or the Secretary in respect of the regulation of the procedure or conduct of business of the Assembly.
Whether the Secretary of the Assembly can be treated as an officer of the Legislature for the purposes of Article 212 and thus be immune from court interference in matters of internal procedure.

Arguments of the Parties

Petitioner's Arguments

The petitioner contended that the first session of the Orissa Legislative Assembly had commenced on 4th March 1952 (the date members were summoned and oath-taking was scheduled), as shown by the Secretary's notice describing the calendar as for the "first session ... commencing from 4-3-52".
On that basis, it was argued that the Governor's address fixed for 7th March would not be an address "at the commencement of a Session" under Article 176(1) but rather would fall under Article 175, and therefore the Assembly would have no right to discuss it under Article 176(2).
The petitioner further argued that Article 212 should not bar the High Court from issuing a writ because (a) the matter does not relate to procedure or conduct of business of the Assembly in a way that attracts Article 212 protection, and (b) the Secretary of the Assembly cannot claim immunity as an officer of the Legislature.

Counsel for the Petitioner (Mr. Mohapatra)

Argued that Article 212's protection does not extend to the Speaker if the subject-matter does not relate to procedure or conduct of business of the Assembly.
Emphasized that the Secretary is not necessarily an officer of the Legislature and therefore may not be protected by Article 212 from judicial review.
Contended that a prior ruling by the Speaker precludes re-raising the same point during the same session (an argument addressed by the Court in its reasoning).

The opinion does not set out any detailed affirmative arguments advanced on behalf of the Speaker or the Secretary in the record summarized; the court instead analyzes constitutional text, parliamentary practice, and the Assembly rules.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

Panigrahi, J. — The judge analyzed the dispute primarily by interpreting Articles 175 and 176 of the Constitution and by reference to established parliamentary practice (as recorded in May's Parliamentary Practice) and the Rules of Procedure of the Orissa Legislative Assembly.

Key steps of his reasoning:

Clarified the textual difference between Article 175 (which permits the Governor to address the Assembly or send messages and to require members' attendance but does not expressly provide for discussion) and Article 176 (which in Clause (1) requires the Governor to address the Assembly "at the commencement" of certain sessions and in Clause (2) requires rules to provide for allotment of time for discussion of matters referred to in such address).
Examined the meaning of "causes of summons" and "commencement of a session" in light of parliamentary practice (quoting authority that the King/Head of State opens Parliament after preliminaries) and observed that these phrases were intentionally incorporated into the Constitution to reflect that practice.
Applied that practice to Indian procedure: preliminaries (oaths to members, election of Speaker) must be completed before the Governor can properly be said to be addressing the Assembly at the commencement of the session; until the Governor declares the cause of summons the House cannot proceed to public business.
Noted the Rules of the Orissa Assembly (summons, rule for election of the Speaker, and a rule providing for the Governor's special address "at the commencement of every session") which, he held, corroborate the parliamentary practice analysis and demonstrate that the Governor's address at the stage fixed in the calendar was properly an address under Article 176(1).
Concluded that the petitioner's contention that the session had commenced on 4th March (the date for oath-taking) is not supported by the language of Article 176(1): the session, he held, begins with the Governor's address after the preliminaries and election of Speaker; consequently Article 176 had not been violated and the business fixed for 7th–8th March did not infringe the Constitution.
Independently, he held that Article 212 constitutes a bar to the High Court's jurisdiction in this matter: the Court could not, under Article 226, issue a writ directed at the Speaker or Secretary to interfere with the internal regulation of the business of the Assembly when done in exercise of powers vested by the Constitution, and the Secretary is to be treated like other officers of the Legislature for this purpose.
Addressed a contention that a ruling by the Speaker cannot be re-opened during the same session: the judge observed uncertainty on that point but indicated it was a matter for the House and the Speaker; in any event the Court should not invade the Speaker's domain.

Narsimham, J. — Agreed that the petition should be rejected but took a different emphasis in reasoning:

Recognized the same central question about construction of "commencement of the first session" in Article 176(1) (i.e., whether the session begins when members are summoned/sworn or only after the Speaker is elected) but expressly reserved opinion on this difficult point, preferring not to decide it without fuller argument.
Concluded that, irrespective of that unresolved textual question, Clause (2) of Article 212 clearly bars the High Court from interfering with an order passed by an officer of the Legislature in the regulation of procedure or conduct of business. He noted that the Rules framed under Article 208 confer on the Speaker primary authority to regulate business and, specifically, Rule 39 empowers the Speaker to decide points of order.
Therefore, because the rules gave the Speaker jurisdiction to decide whether the Governor's address would be discussed under Article 176(2) or treated as an ordinary resolution following Article 175, the High Court was barred from issuing directions in exercise of Article 226 jurisdiction.
Observed that the newly-elected Speaker could be invited to decide the point again and that members remain able to raise the matter in the House; thus judicial intervention was unnecessary and impermissible on the facts.

Holding and Implications

Holding:

DISMISSED — The petition is dismissed. The Court refused to issue the writs sought under Article 226 and did not order exclusion of the Governor's address or prohibit meetings on 7th–8th March 1952.

Immediate consequences for the parties:

The Speaker and the Secretary are not directed by the Court to exclude the Governor's address or to refrain from holding the scheduled meetings on 7th and 8th March 1952.
The Court held (per Panigrahi, J.) that the order of business fixed by the Assembly and the Rules of Business did not violate Article 176 and that parliamentary practice supports the procedure followed; and (per both judges) Article 212 operates as a bar to judicial intervention in respect of internal regulation of the Assembly's procedure and conduct of business.
The opinion notes that individual members remain able to raise procedural points in the Assembly and to invite rulings from the Speaker (including raising the point again before the newly-elected Speaker), rather than seeking judicial redress.

Broader implications:

The Court did not purport to lay down any novel constitutional principle beyond its interpretation and application to the facts: it applied parliamentary practice, the Assembly's Rules of Procedure and Articles 175, 176, 208 and 212 to conclude that judicial interference was barred. The opinion therefore resolves the dispute between these parties on the facts and constitutional provisions before it but does not announce a broader new precedent beyond that application.

This summary is compiled solely from the provided opinion and does not add information not contained therein.

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Saradhakar Supakar v. Speaker, Orissa Legislative Assembly And Secretary Orissa Legislative Assembly Opposite Party.

Panigrahi, J.:— 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,”

2. 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. 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.”

3. 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 Cl. (2) thereof gives the right to the House to discuss the matters referred to in the address. Article 176 sub-cl. (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.”

4. 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.”

5. 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, Cl. (1).

6. 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 legal 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”.

7. 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.”

8. 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.”

9. 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.”

10. 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.”

11. 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.

12. 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.”

13. 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 R. 10 which provides for the special address of His Excellency the Governor “at the commencement of every session”.

14. 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 R. 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.”

15. 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.

16. To my mind, therefore, there is nothing in the language of Cl. (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.

17. 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.

18. 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.

19. 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, this Court would not he 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.

20. We would accordingly hold that the petitioner has no legitimate ground for complaint and that this petition is misconceived. It is dismissed.

Narsimham, J.:— I agree that the petition should be rejected, but for reasons slightly different from those given by my learned brother.

21. 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. Cl. (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 Cl. (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. Cl. (1), and Mr. Mohapatra's contention must fail.

22. 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.

23. The main difficulty in admitting this petition arises from Cl. (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 Cl. (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.

24. 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 Cl. (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 Cl. (2) of Article 212, we are clearly barred from issuing any direction in exercise of our powers under Article 226.

25. 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. 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.

D.H

26. Petition dismissed.

Saradhakar Supakar v. Speaker, Orissa Legi...