Anand Bihari Mishra v. Ram Sahay, Madhya Pradesh High Court, Judgment, Law, casemine.com

Precedent	Rule or Principle Cited For	Application by the Court
Sunil Kumar Bose v. The Chief Secretary to the Govt. of West Bengal, AIR 1950 Cal 274	Invalidity of enactments due to repugnancy to the Constitution and timing of presidential orders.	Distinguished as inapplicable because no provision of the Interim Legislative Assembly Act was repugnant or void.
Brahmeshwar Prasad v. State of Bihar, AIR 1950 Pat 265	Similar to above, regarding timing of presidential orders and validity of enactments.	Distinguished on same grounds as above; not applicable here.
A. Nesamony v. T.M Varghese, 1950 DLR (Tr) 402	Continuance of Speaker under existing State Law despite absence of express constitutional provision.	Followed to support the view that absence of provision in Article 385 for Speaker's continuance does not affect validity of office continuation.
Bradlaugh v. Gossett, (1884) 12 Q.B.D 271	Judicial non-interference in internal parliamentary affairs and privileges.	Applied to recognize limited jurisdiction of courts in matters relating to internal legislative procedures.
Daya Bhai Patel v. Regional Transport Authority, AIR 1951 Madh B 121	Scope of High Court's powers under Article 226 to restrain unlawful occupation of public office.	Referred to affirm the Court's power to issue writs including quo warranto in appropriate cases.
R. v. Guardians of St. Martin, (1851) 17 QB 149	Application of quo warranto to offices created by Act of Parliament.	Used to support that quo warranto lies against statutory public offices, not only offices under the Crown.
Rex v. Speyer, (1916) 1 KB 595	Use of quo warranto for trial of rights to offices and franchises in corporations.	Supports the principle that quo warranto applies to substantive public offices created by statute.

Shinde, J.:— The petitioner Shri Anand Bihari Mishra advocate and member of the Interim Legislative Assembly Madhya Bharat has filed this petition for the issue of an information in the nature of quo warranto against Shri Ramsahai to enquire by what authority he supported his claim to the office of a speaker of the Legislative Assembly of Madhya Bharat in order that the right to the office may be determined. The petitioner alleges that the body functioning immediately before the Constitution of India as the Legislative Assembly of Madhya Bharat was the Legislative Assembly constituted under the Interim Legislative Assembly Act No. 23 of 1949. Shri Ramsahai was holding the office of a president of that Assembly. On the commencement of the constitution on 26th January, 1950 Interim Legislative Assembly Act terminated and as Article 385 of the Constitution of India does not make any provision for the President to continue as Article 382 of the Constitution does, Shri Ram Sahai had no right to be the speaker of the Legislative Assembly of Madhya Bharat. Nevertheless the counter-petitioner had, since the commencement of the constitution, occupied and continues to occupy the speaker's chair. Shri Ram Sahai has also not made and subscribed the oath required by Article 188 of the Constitution of India. This conduct of Shri Ram Sahai amounts to an illegal usurpation of a public office.

2. In order to fully appreciate the force of Mr. Anand Bihari's arguments it is necessary to outline the history of the Madhya Bharat Legislature immediately before the advent of the Constitution.

3. The Rulers of Gwalior, Indore and certain other States in Central India entered into a Covenant whereby they united their territories in one State with a common Executive Legislature and judiciary and named it “The United State of Gwalior, Indore and Malwa” (Madhya Bharat). By this Covenant which was entered into in 1948, the Rulers agreed to make over the administration of their States to the Raj Pramukh at the latest by the 1st of July 1948. Article X of the said Covenant provided for the formation of a Constituent Assembly to frame a constitution for Madhya Bharat. The said Article also provided for the constitution of an Interim Legislative Assembly which was to be dissolved automatically on the formation of the Constituent Assembly. In pursuance of this article first an Interim Legislative Assembly Ordinance and then the Interim Legislative Assembly Act No. 23 of 1949 were enacted. Later on the original Covenant was modified by a supplementary Covenant and it was agreed that the Constitution of India adopted by the Constituent Assembly of India-would be the Constitution for the United State of Madhya Bharat. Suitable consequential amendments in the original Covenant were also made by this supplementary Covenant.

4. Mr. Anand Bihari contends that at midnight on the 25th January, 1950 the Interim Legislative Assembly Act No. 23 of 1949 ceased to be operative and as Article 385 does not make any provision for the speaker to continue as Article 382 does, Mr. Ram Sahai, the President of the Interim Legislative Assembly, ceased to be the President of the New Legislature formed under the Constitution. He further contends that the President of India took the oath at about 10 a.m and hence the Constitution (Removal of Difficulties) Order No. II issued on the 26th January 1950 could only be issued after 10 a.m There was thus a vacuum left from the mid-night till 10 a.m during which period original Article 178 came into force. Hence the Madhya Bharat Legislature should have elected a speaker as enjoined by Article 178.

5. Article 372 lays down that:

“Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.”

6. Exception I defines the expression “law in force.” It says:

“The expression ‘law in force’ in this article shall include a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas.”

7. It is clear that all the law in force in the territory of India immediately before the commencement of the Constitution is to continue in force until altered or repealed subject to the provision of the Constitution. For instance, if any provision of the law in force is inconsistent with any provision of Part III, it will be void under Article 13(1). Three inconsistencies have been pointed out in the Interim Legislative Act by the petitioner. One is that the Act lays down that it is to be subject to the provisions of the Covenant (Vide Section 3 of the Interim Legislative Assembly Act); the other is that the legislature is to consist of the Raj Pramukh and the Assembly (Vide Section 3 of the Interim Legislative Assembly Act); the third is that the Assembly is to be dissolved on the formation of the Constituent Assembly referred to in Para. 1 of the Article X of the Covenant (Vide Section 4 of the Interim Legislative Assembly Act). It is true that the Interim. Legislative Assembly is to be subject to the provisions of the Covenant. But that provision has not been shown to offend against any provision of the Constitution. Article 238(7) lays down:

For every State there shall be a Legislature Which shall consist of the Rajpramukh and;

(a) in the State of Mysore, two houses;

(b) in other States, one Houses.”

8. Far from being inconsistent, it is actually is keeping with the provision of the Constitution. Section 4 of the Interim Legislative Assembly Act lays down the duration of the Legislature. Shri Anand Bihari is obviously unaware of the fact that this section is no longer in force. The original Covenant has been modified by a supplementary Covenant. Article 1 of this Supplementary Covenant is as follows:

“Article I, Notwithstanding anything contained in the original Covenant, the Constitution of India adopted by the Constituent Assembly of India shall be the Constitution for the United State of Madhya Bharat, and shall be enforced as such in accordance with the tenor of its provisions; and accordingly all references in the original Covenant to the Constitution framed thereunder shall be construed as references to the constitution of India.”

Article II reads thus:

“Article II.

In Article X of the original covenant:

(a) for paragraph (1), the following paragraph shall be substituted and shall be deemed always to have been substituted, namely:

“(1) There shall be a Legislature for the United State consisting of the Raj Pramukh and a Legislative Assembly”, and.

(b) in paragraph (3) for the words beginning with the words “Upon the formation” and ending with the words “assent of the Rajpramukh”, the words “Until the commencement of the Constitution of India” shall be substituted, and the words “or as the case may be, the Constituent Assembly” shall be omitted”

Article III reads thus:

“Article III.

9. Schedule III to the original Covenant shall be omitted.”

10. It is evident that the Rulers, who were party to the Covenant agreed by this Supplementary Covenant to adopt and enforce the Constitution of India in Madhya Bharat. Paragraph 1 article X of the Covenant now reads as follows:

“There shall be a Legislature for the United State consisting of the Raj Pramukh and a Legislative Assembly.”

11. The supplementary Covenant also predicates that this paragraph shall be deemed always to have been substituted. This substitution has the effect that para. (1) of Article X of the old Covenant has never been in existence. As the legislature is to be subject to the provisions of the Covenant according to Section 3 of the Interim Legislative Assembly Act, S. 4 has become superfluous and inoperative. These provisions of Sections 3 and 4 of the Interim Legislative Assembly Act, therefore, are not inconsistent with any provisions of the Constitution and offer no bar to the continuance of the Interim Legislative Assembly Act under Article 372 of the Constitution. The Act was passed by a competent authority before the commencement of the Constitution and has not been previously repealed. Hence it continues in force even after the commencement of the Constitution.

12. Having thus come to the conclusion that the Interim Legislative Assembly Act still continues in force, other contentions of Mr. Anand Bihari are deprived of much of their force. I shall however, deal with them one by one. Article 385 runs as follows:

“Until the House or Houses of the Legislature of a State specified in Part B of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body or authority functioning immediately before the commencement of this Constitution as the Legislature of the corresponding Indian State shall exercise the powers and perform the duties conferred by the provisions of this Constitution on the House or Houses of the Legislature of the State so specified.”

13. It lays down that until the House of the Legislature has been duly constituted and summoned to meet for the first session under the provisions of this constitution, the body or authority functioning immediately before the commencement of this constitution as the Legislature shall exercise the powers and perform the duties conferred by the Constitution on the House of the Legislature of the State. This article makes it abundantly clear that the body functioning as the Legislature, is to exercise the power and perform duties conferred by the Constitution. This article does not contemplate creating a new body under the Constitution to function as the Legislature. It continues the old one; but it has been empowered to function as the legislature under the constitution until the legislature is duly constituted under the provisions of the constitution. The question of electing a speaker, therefore, does not arise at all. The old body is to continue to exercise the powers under the constitution. The wording of Article 382 is different. It says the House or Houses of the Legislature shall exercise the powers. The House of the Legislature may or may not include a speaker. Besides as the Government of India Act of 1935 and the Indian Independence Act of 1947 by which these legislatures were constituted were repealed, it was necessary to provide for the continuance of the speaker in Part A States. Article 385 states that the body or authoriy functioning as the legislature is to exercise the powers under the constitution. The body functioning as the legislature includes, in my opinion even the speaker. Article 385 deals with different kinds of legislative bodies. It purports to deal with legislative bodies which may be elected, semi-elected or nominated. In such legislative bodies the speaker may be elected or nominated by a Ruler. Consequently the article contemplates continuing legislatures as they were constituted. Its object is to import into the Union the old legislative machinery in Part B States lock, stock and barrel. Besides the Interim Legislative Assembly Act has continued in force under art. 372 as already stated. Hence the President elected under the Act also continues ipso facto. This argument has, therefore, no force.

14. I would like to clear one point before proceeding to consider other contentions urged by Mr. Anand Bihari. The petitioner argued that the legislature contemplated by Article 385 is a new legislature and it is this new legislature that is empowered to exercise the powers under the constitution. This argument, in the face of the clear wording of article 385, is not tenable. The article does not create a new legislature. It gives power to the old legislature to exercise powers under the constitution. The opening words

“until the House or Houses of the legislature of a State specified in Part B of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of this constitution”

taken along with the words

“the body or authority functioning immediately before the commencement of this constitution as the legislature of the corresponding Indian State”

15. Make it amply clear that it is the old legislature that is continued. Besides if the article had contemplated constituting a new legislature under the constitution, it was unnecessary to state that it shall exercise the powers given by the constitution. On the contrary conferment of powers under the constitution denotes that it is the old legislature that is contemplated by article 385.

16. The next contention put forward by Mr. Anand Bihari is that the Constitution (Removal of Difficulties) order No. II issued on the 26th January, 1950 came into force after 10 A.M and thus left a vaccum from mid-night till 10 A.M; as the constitution came into force at midnight, article 178 became operative; hence the Interim Legislative Assembly should have elected a speaker. This argument proceeds on the assumption that the Interim Legislative Assembly Act or Section 8 of the said Act, which provides for the election of a President, ceased to operate. As already pointed out the Interim Legislative Assembly Act continues in force even after the commencement of the constitution. Section 8 of the said Act also continues in force as it is not repugnant to any of the provisions of the Constitution. Article 178 is attracted only when a Legislative Assembly is constituted under the provisions of the constitution. Article 385 purports to continue the old legislative body as a whole. Hence article 178 has no application.

17. The argument that the Constitution (Removal of Difficulties) Order No. II came into force after 10 A.M is also fallacious. Article 380 provides that such person as the Constituent Assembly of the Dominion of India shall have elected in that behalf shall be the President of India until a president has been elected, in accordance with the provisions contained in chapter 1 of Part V and has entered upon his office. This clearly lays down that a person elected by the Constituent Assembly of the Dominion of India is to be the President of India. The article prescribes no restrictions such as taking of oath as laid down in Article 60 of the Constitution. The Constitution (Removal of Difficulties) Order No. I however lays down that the person elected shall, before entering upon his office, make and subscribe the oath prescribed in Article 60. Consequently the President has to take the oath before entering upon his office. Article 367 however provides for the contingency. This article makes the General Clauses Act of 1897 applicable to the Constitution. Section 5(3) of the General Clauses Act states that unless the contrary is expressed a central Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. This implies that the Constitution (Removal of Difficulties) Order No. II issued on the 26th January, 1950 came into force immediately on the expiration of the 25th. In this view of the matter there is no vaccum left. The petitioner referred us to ‘Sunil Kumar Bose v. The Chief Secy, to the Govt. of West Bengal’, AIR (37) 1950 Cal 274 and ‘Brahmeshwar Prasad v. State of Bihar’, AIR (37) 1950 Pat 265. In both the cases their Lordships of the Calcutta and Patna High Court were dealing with provisions of enactments, which were void because of their repugnancy to the constitution. They had held that as the president could make no valid order until after 10-15 A.M on the 26th (when he took the oath), the subsequent order could not vivify the Act, which had become void simultaneously with the constitution coming into force. Both these decisions do not apply to the present case as none of the provisions of the Interim Legislative Assembly Act had become void because of repugnancy.

18. The Constitution (Removal of Difficulties) Order No. II provides that for Article 178 substitute:

“178. The speaker and the Deputy Speaker of the Legislative Assembly: So often as the office of the speaker or Deputy speaker of the Legislative Assembly of a State becomes vacant, the Assembly of a State becomes thereof to be its speaker or Deputy speaker, as the case may be.”

19. This provision is to be construed to have come into force at midnight on the 25-1-1950 by virtue of Section 5 of the General Clauses Act. What this order in effect did is to delete the first portion of Article 178 and to retain the last one. As that part of the article, which requires a Legislative Assembly to choose a speaker, is not in force from the midnight of the 25th, the argument of the petitioner falls to the ground. Election of a speaker is to be held only when there is a vacancy. Therefore even if it be conceded that article 178 is applicable to the Interim Legislative Assembly, election of a speaker is not necessary as the office has not fallen vacant.

20. The petitioner also contends that the President had no power to issue the Constitution (Removal of Difficulties) Order No. II. He argues that in issuing the said order he has exceeded the power conferred by Article 392 of the Constitution. His first objection is that there was no difficulty to remove and hence the Order should not have been issued. Article 392 runs thus:

“1. The President may, for the purpose of removing any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1935, to the provisions of this Constitution, by order direct that this Constitution shall, during such period as may be specified in the order, have effect subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient”.

21. The question is whether a subjective test or an objective test is to be applied to see whether there is a difficulty or not. Article 392 gives power to the President to remove the difficulties. Naturally it is the President who has to decide whether there is a difficulty or not. Hence it is the subjective test that is to be applied. If therefore the President was of the opinion that there was a difficulty, he certainly could issue an order under Article 392. This objection, therefore, has no force.

22. Another objection to the issue of the order is that the President substituted a new article for the original Article 178 which he has no power to do under Article 392. Mr. Anand Bihari argues that adaptations can be made, only by modification, addition or omission; but not by substitution. The word modify conveys the sense of a partial change and not a complete change. Now although the Constitution (Removal of Difficulties) Order No. II states that for Article 178 substitute the following, in actual fact the substituted form is only a modification of Article 178. As already stated in the earlier part of this judgment, all that the order does is to dispense with the first part and retain the latter. The adaptation of Article 178 is only by a modification. Consequently there is no room for this objection.

23. The last objection to the issue of the Order is that under Article 392 power of adaptation is given only to remove difficulties in relation to the transition from the provisions of the Government of India Act, 1935 to the provisions of this Constitution. Article 392 has already been reproduced. It says the president may, for the purpose of removing any difficulties ‘particularly’ in relation to the transition from the provisions of the Government of India Act 1935 to the provisions of this Constitution, by order direct etc. etc. This language clearly shows that the power is general. The mention of one particular instance in which it can be used does not circumscribe it. Hence this objection also cannot be accepted.

24. The first contention, therefore, cannot be accepted. The Constitution has actually provided by Article 372 for the continuance of all laws in force as long as they are not repugnant to any of the provisions of the Constitution. Consequently there is no doubt that the Interim Legislative Assembly Act of 1949 continued in force even after the commencement of the constitution. The Interim Legislative Assembly Act therefore continued even after the commencement of the constitution. Article 385 empowers the old legislatures to exercise powers under the Constitution. As Article 385 intended to continue the entire legislative machinery, it was not necessary to elect a speaker on the commencement of the constitution. Besides Article 178, by virtue of which election is claimed, being no longer in force since the inception of the constitution, election cannot be claimed under Article 178. The objections to the issue of the Constitution (Removal of Difficulties) Order No. II are devoid of any force. In ‘A. Nesamony v. T.M Varghese’, 1950 DLR (Tr) 402, Govinda Pillai J. observed as follows:

“After a careful consideration of the several provisions of the Constitution of India and the subsequent orders passed by the President by virtue of the powers vested to him under the provisions of the Constitution it does not apear to me that the absence of a provision in Article 385, Constitution of India for the continuance of the speaker of the Legislative Assembly of Travancore-Cochin State would in any way affect his continuance as such. The provisions relating to the same in Articles 379 and 382 were necessitated because of the repeal of the Acts of 1935 and 1947 referred to already.”

25. The first contention, therefore, must be rejected.

26. The second contention of the petitioner is that Shri Ram Sahai did not take the requisite oath and hence his occupation of the office is illegal. Article 188 lays down that every member of the Legislative Assembly shall before taking his seat make and subscribe before the Governor an oath or affirmation according to the form set out for the purpose in the Third Schedule. This article is essentially-meant to apply to legislatures constituted under the Constitution. In my judgment it does not apply to old legislatures continued by virtue of Articles 372 and 385. As already stated it was the old legislative machinery which was continued and was empowered to exercise powers under the Constitution. Besides under Article 372 the Indian Legislative Assembly Act of 1949 continued in force. If the members or the speaker had taken oath in accordance with the provisions of that Act, they can validly continue to be members or speaker of the said Assembly even after the commencement of the Constitution. It may also be mentioned here that Shri Ram Sahai actually did take the oath. He took the oath in the form prescribed in the third schedule with the modification that instead of calling himself a member he called himself a speaker. There is no special form prescribed for a speaker in the Constitution. This contention, therefore, has no substance.

27. Even if it be conceded that Shri Ram Sahai did not take the requisite oath, can a rule for information in the nature of quo warranto be issued? If the oath is not taken, a member does not cease to be a member. The penalty is prescribed in Article 193. It states that a member, who, without complying with the requirements of Article 188, sits or votes, shall be liable in respect of each day on which he so sits or votes to a penalty of Rs. 500/-. Section 11 of the Interim Legislative Assembly Act lays down that if a member fails to make the oath, the Government may by notification in the Gazette declare his seat vacant. Under the Interim Legislative Assembly Act the Government has been given a discretion to declare his seat vacant. But failure to make the oath does not ipso facto render his seat vacant. In these circumstances an information would be futile in its results and hence no information in the nature of a quo warranto would lie.

28. The learned Advocate General opposes the petition on the ground that the office of the speaker is not an office under the Crown i.e the Executive; hence no information in the nature of quo warranto would lie. An information in the nature of quo warranto will lie in respect of any particular office when that office satisfies the following conditions: (1) The office must have been created by charter from the Crown or by Statute. (2) The duties of the office must be of a public nature. (3) The office must be one the tenure of which is permanent’ in the sense of not being terminable at pleasure. (4) The person proceeded against has been in actual possession and user of the particular office in question (Vide Halsbury's Laws of England, Vol. X 1909 Edn pages 129 and 130 and 131). The office of the speaker has been created by statute. Article 178 of the Constitution and Section 6 of the Interim Legislative Assembly Act of Madhya Bharat provide for it. That the duties of the office of a speaker are of a public nature is not disputed by the Advocate General. The third and the fourth requisite conditions are also fulfilled in the present case. In these circumstances the objection of the Advocate General cannot be sustained.

29. In the result I see no ground to confirm the rule. The rule is, therefore, discharged and the petition is dismissed with costs. Advocate's fee is assessed as Rs. 100/-.

Dixit, J.:— This is a petition under Article 226 of the Constitution of India for the issue of a writ in the nature of quo warranto against the non-applicant Shri Ram Sahay to show cause as to by what authority, he is functioning as the Speaker of the Madhya Bharat Legislative Assembly and is exercising and performing the powers, duties and functions which may be performed or exercised by the Speaker under the Constitution, and for the issue of an injunction restraining the non-applicant from functioning as the Speaker and exercising and performing the powers, duties and functions of the Speaker. The petitioner is an Advocate of this Court and a member of the Madhya Bharat Legislative Assembly. He states in his application that just before the commencement of the Constitution he and the opponent Ram Sahay were members of the Legislative Assembly constituted under the Covenant entered into on 22-4-1948 by the Rulers of Gwalior, Indore and certain other States of Central India for the formation of the Madhya Bharat and that the non-applicant Ram Sahay was also the Speaker thereof; that this Assembly is, now under Parts VI and VII, the Constitution of India, the Madhya Bharat State Legislature and is empowered under Article 385 of the Constitution to exercise the powers and perform the duties conferred by the provisions of the Constitution on the Legislature of the State; that under Article 178, the State Legislature is required to choose a member of the Assembly to be the Speaker thereof and that every member of the Assembly has, before taking his seat, to take an oath or affirmation according to the provisions of Article 188; but that after the commencement of the Constitution no such election of the Speaker has been held and that the opponent Ram Sahay has not taken an oath or affirmation in the prescribed form and has thus illegally usurped the office of the Speaker. The petitioner, further, states that he questioned the legality of the non-applicant's continuance as the Speaker by raising a point of Order in the Assembly, but that the objection was overruled by the non-applicant. He, further, says that he addressed letters to the Raj Pramukh, the Minister for Law and Justice and the opponent himself seeking redress before approaching this Court for a remedy under Article 226.

30. In his return to the rule nisi issued by this Court, Shri Ram Sahay does not say that after the coming into force of the Constitution, the Legislature elected him as its Speaker. He, however, opposes the petition on the grounds (1) that as he was the duly elected Speaker of the Assembly before the commencement of the Constitution he is entitled under the provisions of the Constitution to continue in the office and to exercise the powers and perform the duties of the Speaker; (2) that the matter of the election of a Speaker and of his continuance as the Speaker is one exclusively pertaining to the internal affairs of the Legislative Assembly and that this Court is precluded from enquiring whether the continuance of the non-applicant as the Speaker of the Assembly is legal; (3) and that as he holds no office under the Government or any office similar to what may be described as an office under the Crown, a writ in the nature of quo warranto cannot be issued against him and he cannot be ousted in these proceedings from the office, which he is holding.

31. Before stating the contentions of the parties, it seems to me necessary to narrate certain material facts and to refer to the provisions of the Constitutions, relevant to the matter before us. In April 1948, the Rulers of Gwalior, Indore and certain other States in Central India entered into a Covenant for the formation of the United State of Gwalior, Indore and Malwa (Madhya Bharat). The Covenant contained provisions for the Union and integration of the several States into one United State and made the present Ruler of Gwalior, the Raj Pramukh during his life time. Article VIII of the Covenant enjoined that the Raj Pramukh shall execute on behalf of the United State an Instrument of Accession in accordance with the provisions of Section 6 of the Government of India Act, 1935, and in place of the Instruments of Accession of several Covenanting States. Article X of the Covenant provided for the formation of a Constituent Assembly to frame a Constitution for the United State, and for the Constitution of an Interim Legislative Assembly to function until the formation of the Constituent Assembly. Clause III of the Article gave to the Raj Pramukh the power to make and promulgate Ordinances for the peace and good Government for the United State. This power was subject to certain conditions. The Instrument of accession was accordingly executed by the Raj Pramukh accepting the matters mentioned in List I and List III of the Seventh Schedule to the Government of India Act, 1935 as the matters with respect to which the Dominion Legislature had the power to make laws for the United State. An Interim Legislative Assembly in accordance with the provisions of Article X of the Covenant was also constituted, and the petitioner and the opponent Shri Ram Sahay became the members of the Assembly. On 30-10-1948, the Raj Pramukh made and promulgated the Interim Legislative Assembly Ordinance (Ordinance No. 18 of 1948) containing provisions about the constitution of the Assembly, its dissolution, sessions, the election of the President, Deputy President and other connected matters. An election of the President was held under Sec. 8 of the Ordinance and the Assembly chose the non-applicant as its President. The provisions of this Ordinance were subsequently embodied in the form of an Act; namely, Interim Legislative Assembly Act (Act No. 23 of 1949) which replaced the Ordinance. Sometime towards the end of 1949, the Rulers of Gwalior, Indore and certain other States entered into a Supplementary Covenant modifying certain Articles of the original Covenant of 22-4-48. Article I of the Supplementary Covenant is in the following terms:

“Notwithstanding anything contained in the original Covenant, the Constitution of India adopted by the Constituent Assembly of India shall be the Constitution for the United State of Madhya Bharat, and shall be enforced as such in accordance with the tenor of its provisions; and accordingly all references in the original Covenant to the Constitution framed thereunder shall be construed as references to the Constitution of India.”

32. By Article II of the Supplementary Covenant, for the provision in the original Covenant relating to the formation of a Constituent Assembly, the following paragraph was substituted with the direction that “it shall be deemed always to have been substituted”. The substituted paragraph is as follows: “(1) There shall be a Legislature for the United State consisting of the Raj Pramukh and a Legislative Assembly.”

33. On 24-11-1949, the Raj Pramukh issued a proclamation accepting the Constitution framed by the Constituent Assembly of India as the Constitution for the State and enjoining its enforcement in the State. Thus, just before the commencement of the Constitution of India, the Interim Legislative Assembly was governed by the Interim Legislature Act (Act No. 23 of 49) and the counter petitioner Shri Ram Sahay was the duly elected Speaker of the Assembly under Section 8 of the Act.

34. Coming now to the provisions of the Constitution of India, we find that Part VII of the Constitution contains special provisions governing the Constitution of the States specified in Part B of the First Schedule, as also the modifications subject to which the provisions of Part VI are applicable to Part B States. Article 168 of the Constitution as applied to Part B States says:

“For every State there shall be a Legislature which shall consist of the Raj Pramukh and (a) in the State of Mysore, two Houses; (b) in other States one House.”

Article 178 provides that:

“Every Legislative Assembly of a State shall, as soon as may be, choose two members of the Assembly to be respectively Speaker and Deputy Speaker thereof and, so often as the office of Speaker or Deputy Speaker becomes vacant, the Assembly shall choose another member to be Speaker or Deputy Speaker, as the case may be.”

35. Under Article 188 every member of the Legislature of a Part B State must, before taking his seat make and subscribe before the Raj Pramukh or some person appointed in that behalf by him an oath or affirmation according to the form set out for the purpose in the Third Schedule. Clause 2 of Article 189 declares that any proceedings in the Legislature of a State shall be valid notwithstanding that it is discovered subsequently that some person who was not entitled so to do, sat or voted or otherwise took part in the proceedings. Article 193 prescribes the penalty for sitting and voting before making oath or affirmation under Article 188. The next material and important Article is Article 385. It is as follows:

“Until the House or Houses of the Legislature of a State specified in Part B of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of the Constitution, the body or authority functioning immediately before the commencement of this Constitution as the Legislature of the corresponding State shall exercise the powers and perform the duties conferred by the provisions of this Constitution on the House or Houses of the Legislature of the State so specified.”

36. On the 26th January, 1950, the Constitution (Removal of Difficulties) Order No. II was made by the President in exercise of the powers conferred on him by Clause I of Article 392. By this Order, it was provided that until both Houses of Parliament and the State Legislatures have been duly constituted and summoned to meet for the first session under the provisions of the Constitution, the Constitution of India shall have effect subject to the adaptations specified in Part I and Part II of the Schedule to the Order. One result of these adaptations is that during the transitional period indicated in the Order, Article 168 in its applicability to the States specified in Part B of the First Schedule is made to read to this effect, namely,

“Subject to the provisions of Article 385, there shall be for every State a Legislature which shall consist of the Raj Pramukh and (a) in the State of Mysore, two houses; (b) in ether States, one House.”

37. A new Article 172(A) inserted in the constitution by the Order No. 2 makes the provisions of Articles 169 to 172 inapplicable to the House or Houses of the Legislature of any State functioning under Article 385. The Order also substituted for Article 178 the following Article:

“So often as the Office of Speaker or Deputy Speaker of the Legislative Assembly of a State becomes vacant, the Assembly shall choose a member thereof to be its Speaker or Deputy Speaker, as the case may be.”

38. Special provisions have also been inserted in the Constitution by the Order No. 11 rendering inapplicable certain Articles of which Article 178 is one, to any Part B State which has no House of the Legislature.

39. The petitioner presents before us his case in two aspects. First of all, it is said that the Constitution (Removal of Difficulties) Order No. II in so far as it makes adaptations in the Constitution as applied to the Part B States, is invalid for certain reasons, to which a reference will, be made later on. The Petitioner, then, assumes the Madhya Bharat Legislative Assembly which was functioning immediately before the commencement of the Constitution and which has been empowered under Article 385 to exercise the powers and perform the duties conferred by the provisions of the Constitution on the State Legislature, as the Legislature for the State of Madhya Bharat under Article 168, and argues that as Article 385, unlike the preceding Articles 379 and 382, does not contain any provision for the continuance in the Office of Speaker of any person who was, immediately before the commencement of the Constitution, the Speaker of a Legislative Assembly in a Part B State, the election of the Speaker of the Legislature functioning under Article 385 must be held in accordance with the provisions of Article 178. The applicant also says in the alternative that even it is assumed that the Constitution/Removal of Difficulties) Order No. II is valid, an election of the Speaker must be held under Article 178 as adapted by the Order. It is argued that there being no provision in the Constitution for the continuance in the Office of Speaker of any person holding that Office immediately before the commencement of the Constitution in a Part B State, the Office must become vacant by the commencement of the Constitution itself. The second way in which the case is submitted before us is that as the non-applicant has not taken an oath or affirmation in the manner prescribed under Article 188, he is not entitled to take his seat in the Assembly and that, therefore, he cannot continue as Speaker of the Assembly and exercise the powers and perform the duties of the Speaker.

40. In these proceedings the State has been permitted by us to intervene. The learned Advocate General has, on behalf of the State, contrayerted all the points raised by the petitioner. His argument, which has been adopted by Mr. Shiv Dayal the learned counsel appearing on behalf of the non-applicant Shri Ram Sahay, may be concisely summarised thus: The contention of the petitioner that with respect to the former Indian States who had acceded to the Dominion of India in accordance with the provisions of the Government of India Act, 1935 as adapted after 15th August 1947 and who are now the States specified in Part B of the First Schedule of the Constitution of India, it could not be said that there was a transition from the provisions of the Government of India Act, 1935 to the provisions of the Constitution, is unwarranted and untenable. So also is the contention of the petitioner that for that reason the Constitution (Removal of Difficulties) Order No. II in so far as it adapts the provisions of the Constitution in their applicability to Part B States during the period of transition, is ultra vires. It is said that the Order is valid; it came into force by virtue of Section 5(3) of the General Clauses Act, 1897 from the midnight of 25th January, 1950 and not, as the applicant says, from some time after the President took the oath on 26th January, 1950 at 10-15 a.m and entered upon his office; and that, therefore, as directed by this Order, Article 178 does not apply during the transitional period specified in that Order and the Assembly is not required to choose one member as its Speaker. It is, further argued that Article 385 of the Constitution itself contemplates continuance of the “body or authority functioning immediately before the commencement of this Constitution as the Legislature of the State” without any alteration in its structure. The word ‘body’ in Article 385 in relation to a State which has a House of Legislature functioning under Article 3854 includes the Officers of the State Legislature. The Office of Speaker in a House of the Legislature of any State specified in Part B functioning immediately before the commencement of the Constitution does not, therefore, fall vacant by the commencement of the Constitution itself and no election of Speaker is necessary under Article 178 as adapted by the Constitution (Removal of Difficulties) Order No. II. The learned Advocate General, further contended that as the Interim Legislative Assembly Act of 1949 is a law which was enforced in Madhya Bharat immediately before the commencement of the Constitution, it still continues in force under Article 372, and that Shri Ram Sahay who was duly elected under that Act as the Speaker of the Assembly must also continue in the Office on the coming into force of the Constitution of India, and that the absence of an express provision in Article 385 for the continuance of the Speaker of a House of the Legislature of a Part B State does not in any way affect the continuance of the non-applicant in the office. As to the objection that the non-applicant had not taken an oath according to the form set out for the purpose in the Third Schedule, the reply of the learned Advocate General is that Shri Ram Sahay did take an oath before the Raj Pramukh on 26th January, 1950 describing himself as the Speaker of the Legislative Assembly and declaring that he would bear true faith and allegiance to the Constitution of India as by law established and he would faithfully discharge his duties as the Speaker. It is, however, argued that even if Shri Ram Sahay has not taken an oath strictly conforming to the form set out in the Third Schedule, his failure to do so does not render his seat in the Assembly or the office of Speaker, which he is holding, vacant, and that in any case the question whether Shri Ram Sahay should be permitted to take his seat and exercise the powers and perform the duties of the Speaker as he has not taken the prescribed oath, was one exclusively pertaining to the internal affairs of the Legislative Assembly which cannot be enquired into by this Court. The learned Advocate General next contended that this application was not maintainable. No writ in the nature of quo warranto could be issued against the opponent, because as the Speaker of the Assembly, he does not hold “what can be described as an office under the Crown”. The learned Advocate General also suggested that as under Article 194(3) the powers, privileges and immunities of a House of Legislature of a State are at present those of the House of Commons of the Parliament of the United Kingdom, the matter of the continuance or the election of Speaker is one exclusively of the rights and privileges of the Legislature and that, therefore, the jurisdiction of this Court to enquire into the matter is excluded.

41. I now proceed to consider the several points raised by the petitioner. I must say that I feel I have had small success in following the arguments addressed to us by the applicant. The petitioner questioned the validity of the Constitution (Removal of Difficulties) Order No. II by first saying that under the Constitution, the President has no power at all to modify the provisions of the Constitution for the removal of difficulties. When his attention was drawn to the fact that the President derives this authority under the Constitution itself and that Article 392, in express words gives him the power to remove difficulties by directing that the constitution shall, during such period as may be specified in the Order, have effect subject to such adaptations whether by way of modification, addition or omission as he may deem to be necessary or expedient, the petitioner challenged the validity of the Order on the ground that in respect of the former Indian States, there has been no transition from the provisions of the Government of India Act 1935 to the provisions of the Constitution and that there was no difficulty in holding an election of the Speaker under Article 178 in a State specified in Part B of the First Schedule having a House of the Legislature. He also attacked the order on the ground that Article 392 does not give to the President the power to adapt the Constitution by way of substitution, as has been done in the case of Article 178, and that the Order does not specify the period during which the Constitution shall have effect in the modified form. The last objection may be disposed of by saying that the words “whether by way of modification, addition, or omission” in Article 392(1) are sufficiently comprehensive to include an adaptation by way of substitution. For, after all, substitution of one Article of the Constitution by another is in substance nothing but an omission of one Article and the addition in its place of another. The Order also specifies with Reference to an event which is reasonably certain, namely, the summoning of the Parliament and the State Legislatures to meet for the first session after they are duly constituted under the Constitution, the time during which the Constitution is to be effective subject to certain adaptations.

42. There is no substance in the other objections also as to the validity of the Order. From the material facts already narrated — facts which are now historical and indubitable — there can be no doubt that during the period from 15-8-47 to 26-1-50, the transformation in the status of this state, as of other former Indian States, from that of an Acceded State to the Dominion of India to a State specified in Part B of the First Schedule of the Constitution, the transition is from the provisions of the Government of India Act, 1935 to the provisions of the Constitution, by virtue of the Instruments of Accession executed by the Rulers of the Indian States and subsequently by the Raj Pramukhs and subject to their terms, the Governor General of India, the Domini, on Legislature, the Federal Court, and the other Dominion Authorities exercised in; relation to the States and in respect of the matters mentioned in List I and List III of the; Schedule 7 of the Government of India Act, I the functions that were vested in them by or under the Government of India Act, 1935. It is, no doubt, true that outside the limits of the Instruments of Accessions, the autonomy of the States was not affected in any way by the Government of India Act, 1935. But by their accession to the Dominion of India, the scope and character of their sovereignty was affected by the Government of India Act, 1935. It is not necessary to discuss here how the sovereignty of the States was affected by their accession to the Dominion of India. It is sufficient to say that their sovereignty was by their accession to the Dominion of India considerably impaired and wholly transformed, and they became subject to the provisions of the Government of India Act, 1935 to the extent specified in their Instruments of Accession. I can find no shadow of a justification for contending that in respect of the former Indian States which are now specified in Part B and C of the First Schedule of the Constitution, there has been no transition from the provisions of the Government of India Act, 1935 to the Provisions of Constitution and that, therefore, as regards these states, the Constitution (Removal of Difficulties) Order No. II should not be given effect to.

43. Again, it appears to me from the language of Article 392 that under that Article, the power of the President to make any adaptations in the Constitution is not limited to the removal of only those difficulties which may arise in relation to the transition from the provisions of Government of India Act, 1935 to the provisions of Constitution. It is wider. The word ‘particularly’ used in that Article does not limit or cut down the generality of the preceding words, namely, “for the purpose of removing any difficulties”. The Constitution is “a contrivance of human wisdom to provide for human wants”. As such, it is by no means infallible; for it is beyond the wit of man to devise anything that can be called perfect. Difficulties are, therefore, bound to arise especially in relation to the transition. As the nature of these difficulties, and of the provisions which should be made for meeting them could not have been clearly foreseen at the time of the framing of the Constitution, Article 392 was included in the Constitution for the purpose of facilitating the transition. In relation to the State Legislatures, with which we are concerned, difficulties arose because of the operation, after the commencement of the Constitution, of the various provisions dealing with the Legislatures, which have not yet come into being and because of the continuance by the Constitution of certain bodies to exercise the powers and perform the duties conferred by the provisions of the Constitution on the Legislatures until the limited period specified in Articles 382 and 385. The measure of a difficulty contemplated by Article 392 is not, as I conceive, whether it is practicable to do a thing required to be done under an article of the Constitution, to wit, whether it is practicable to hold election of the Speaker under Article 178. It is, whether consistently with the transitional provisions contained in Part XXI of the Constitution it can be done. Judged by this test, the Constitution (Removal of Difficulties) Order No. II which secures harmony between certain Articles of the Constitution which are material here and the transitional provisions contained in Part XXI of the Constitution cannot on the ground urged by the applicant be held as invalid.

44. Indeed, if the contention of the petitioner that the Order is invalid so far as Part B States are concerned, is accepted, the petitioner is out of Court. For, then there is no provision in the Constitution under which the petitioner can claim that the body, of which he is a member, is required to hold an election of Speaker. He cannot say that the election should be held under the original Article 178. This Article is applicable only to a Legislature duly constituted under the provisions of the Constitution. That the body of which the petitioner is a member and which has been empowered under Article 385 to exercise the powers and perform the duties conferred by the provisions of the Constitution, is not a Legislature duly constituted under Chapter III of Part VI as applied to this State, is clear enough. If it was one, there would be no need for the provision in Article 385 that

“It shall exercise the powers and perform the duties conferred by the provision of this Constitution on the House or Houses of the Legislature of the State so specified.”

45. It is only with the aid of the Constitution (Removal of Difficulties) Order No. II, which inter alia modifies Article 168 and suspends the operation of Articles 169 to 172 that the petitioner can argue that when the modified Article 168 says that subject to the provisions of Article 385, there shall be for the State a Legislature, it means that during the limited period specified in the Constitution (Removal of Difficulties) Order No. II, the Legislature for the State shall be, in the manner indicated in Article 385 and that the substituted Article 178 applied to such a Legislature.

46. The applicant felt himself constrained by force of logic to argue in the alternative that even assuming that the Constitution (Removal of Difficulties) Order No. II is valid, an election of Speaker is necessary under the substituted Article 178 for the reason that there being no provision in the Constitution for the continuance of the Speakers in Part B States, the office which the non-applicant Shri Ram Sahay was holding fell vacant by the commencement of the Constitution. The applicant drew our attention to the difference between the wording of Article 385 and that of 382, sub-clause 3 of which contains a provision for the continuance in office of the Speakers in Part A States. The point sought to be made was that the absence in Article 385 of a provision similar to-sub-clause 3 of Article 382 shows that it was not the intention of the framers of the Constitution that any person holding office immediately before the commencement of the Constitution as a Speaker, in a State specified in Part B of the First Schedule, should continue in office even after the coming into force of the Constitution. This alternative argument does not appeal to me. I agree With the learned Advocate General that on a literal construction of the plain language of Article 385, the Article contemplates that “the body or authority functioning immediately before the commencement of the Constitution as a Legislature of the State” should continue without any alteration in its structure. It is not disputed by the applicant that Article 385 enables the body or authority functioning immediately before the commencement of the Constitution as a Legislature in a State to continue in existence after the commencement of the Constitution. If, therefore, in a State where such a body consists of a House of Legislature and the body continues under Article 385 without any alteration in its structure, then, the Speaker of the Legislature who is a part of the structure must also continue. It is to be observed that Article 385 does not deal merely with Houses of the Legislatures in certain Part B States. The words “body or authority functioning as the Legislature” in Article 385 are intended to cover legislative machinery of every type functioning in Part B States before the Constitution came into force. Article 385 continues the existence of all these bodies or authorities without any distinction. If it was intended, to treat a body in the shape of a House of the Legislature differently or that such bodies should continue with certain alterations in their structure, the framers of the Constitution would have proceeded to insert express provisions to that effect in Article 385 of the Constitution and indicate precisely the alterations. In my view, it is completely erroneous to apply the analogy of Sub-clause 3 of Article 382 to the construction Article 385. What is so often lost sight of, is the cardinal rule that in the construction of a statute, first the words employed should be considered and their ordinary grammatical meaning should be ascertained. It is only where the words are ambiguous that it is permissible to look at the scheme of the Act or the language used in other parts of the statute for gathering the intention. The same rule would apply in the construction of any Article of the Constitution and where the words of an Article are plain, effect must be given to them. The Court would not be justified in depriving the words of their only proper meaning in order to give effect to some intention of the framers of the Constitution which they omitted to express. We are not entitled to read words into an article unless there is some clear reason for it in the Constitution, itself. No such case exists here. According to the language of Article 385, the body or authority that is empowered to exercise the powers and perform the duties conferred by the provisions of the Constitution on the State Legislature, is the body or authority as constituted and composed of certain person or persons under a law of the State concerned and functioning under that law as the Legislature in that State immediately before the commencement of the Constitution. I cannot imagine any language less suitable than that used in Article 385 to say that where in a State such a body is in the form of a House or Houses of the Legislature, while the membership of the persons composing the body is to continue, the office of Speaker is excluded from the Constitution of the body and the incumbent will cease to hold the office on the commencement of the Constitution. I am not even sure that the absence in Article 385 of a provision analogous to Sub-clause 3 of Article 382 is unintentional. For, whereas the Government of India Act, 1935, under which the Legislatures in Part A States were constituted and the Speakers thereof were elected has been repealed by Article 395 of the Constitution, the law under which the body or authority referred to in Article 385 functioned in a Part B State, is continued in force by Article 372(1) of the Constitution. There was, therefore, no necessity to provide expressly in Article 385 for the continuance of the Houses of the Legislature and the officers thereof in Part B States. In this State, the law under which the non-applicant was duly elected as the Speaker of the Madhya Bharat Legislative Assembly, is to be found in the Interim Legislative Assembly Act (Act XXIII(23) of 1949. By virtue of Article 372(1) and the Adaptation of Laws Order, 1950 made by the President under Sub-clause 2, the Act is still in force. The non-applicant who was elected as the Speaker in accordance with that law must, therefore, continue to function. The petitioner attempted to argue that the Interim Legislative Act has ceased to operate after the commencement of the Constitution, because sections 3 and 4 of the Act which speak of the Constitution of the Legislative Assembly subject to the provisions of the Covenant and its dissolution on the formation pt the Constituent Assembly referred to in Para. I of Article X of the Covenant, are repugnant to the provisions of the Constitution. The argument ignores altogether the fact that by the Supplementary Covenant, the provision contained in the original Covenant about the formation of a Constituent Assembly, has been deleted. There is, therefore, now no such repugnancy between the Interim Legislative Assembly Act and the Constitution. The petitioner, then, faintly suggested that the Act No. XXIII of 1949 is, under Article 18(1) void. The suggestion has only to be stated to be rejected. It was, then, said that as the Interim Legislative Assembly Act is a temporary law, it cannot be continued in force by virtue of Explanation III to Article 372. I fail to see how Explanation III to Article 372 is applicable to the Interim Legislative Assembly Act. The Act is not a temporary law. It does not fix a date for its expiration. After the deletion of the provision in the original Covenant about the formation of the Constituent Assembly, it cannot also be maintained that the Act would have expired on a date fixed by it if the Constitution had not come into force. Thus, there is no force in the objections of the petitioner that the Interim Legislative Act ceased to be operative from the commencement of the Constitution. In my judgment, both under Article 385 and the Interim Legislative Assembly Act, the non-applicant Shri Ram Sahay is entitled to continue in the office of Speaker and that the contention of the petitioner, that by the commencement of the Constitution, a vacancy occurred in the office and that, therefore, an election of Speaker is necessary under Article 178, must fail.

47. A case similar to the present case came up for consideration before the Travan-core-Cochin High Court in ‘Nesamony v. T.M Varghese, 1950 DLR (Tr) 402. In that case the continuance of a person in the office of Speaker of Travancore-Cochin Assembly was challenged by way of quo warranto proceedings on the same grounds, as were urged before us by the petitioner. The contentions were not accepted by Govinda Pillai, J., and the prayer for the issue of a writ in the nature of quo warranto was rejected. According to Govinda Pillai, J., the Constitution allowed the existing State Law to continue the Legislative Assembly of Travancore-Cochin State constituted and the Speaker elected as under that law would also continue to function and that the absence of a provision in Article 385 for the continuance of the Speaker of the Legislative Assembly did not in any way affect his continuance as such. An appeal was filed against the decision of Govinda Pillai, J., to a Division Bench. In affirming the decision of Govinda Pillai J., the learned Chief Justice of Travancore-Cochin High Court said with reference to Article 385 that:

“The natural meaning that can be attributed to the clause in Article 385 that this body shall exercise the powers and perform the duties conferred by the new Constitution would give a continuity of existence as a temporary measure to the Speaker as well.” (See 1951 Dominion Law Reporter Travancore-Cochin, p. 347).

48. At this stage, I may refer to the argument of the petitioner, which seeks to say that as the Constitution (Removal of Difficulties) Order No. II came into force some time after 10-15 a.m on 26-1-1950 when the President was sworn as President and not at midnight of 25-1-1950, there was a vacancy in the office of Speaker and the election of Speaker must, therefore, be held. I must confess, I am utterly unable to follow the reasoning of this argument. The continuance of the non-applicant in the Office of Speaker is not the result of any adaptation made in Article 385 by the Constitution (Removal of Difficulties) Order No. II. As I have already said, the continuance of Shri Ram Sahay as the Speaker of the Madhya Bharat Legislative Assembly follows from the language of Article 385 itself, and further, that Article 178 in its original form has no applicability to the Legislative Body of which the petitioner and the opponent are members. The question, therefore, as to the time of the commencement of the Order does not affect the continuance of the non-applicant Shri Ram Sahay in the office of Speaker. For, even if it be assumed that the Order came into force from the time alleged by the petitioner, it cannot be maintained that during the few hours that elapsed between the coming into force of the Constitution on the midnight of 25-1-50 and the time of taking of oath by the President, the Office of Speaker became vacant rendering a fresh election necessary. In this view of the matter, I do not think it necessary to express any opinion on the question whether the Constitution (Removal of Difficulties) Order No. II came into force some time after 10-15 a.m on 26-1-50 or from the midnight of the 25-1-50. That point may have to be considered in a suitable case where the Court may be of the opinion that the question of the time of the commencement of the Order is material. I would only say that as at present advised, there seems to be some force in the contention of the learned Advocate-General that by virtue of Article 380(1) of the Constitution and of S. 5(3) read with Section 3(12) of the General Clauses Act, the Constitution (Removal of Difficulties) Order No. II, even though it might have been actually made by the President after 10-15 a.m on 26-1-50, would be deemed to have come into force for legal purposes from the midnight of 25-1-50. His criticism that in the decisions reported in A.I.R (37) 1950 Patna 265 and AIR (37) 1950 Cal. 274, which seems to support the contrary view, Article 380(1) has not been referred to at all and Sections 3(12) and 5(3) of the General Clauses Act have not been fully considered, is justified. I would only add that the view taken by the Calcutta and Patna High Courts in the above cases has not been followed by Orissa High Court in Prahalad Jena v. State, A.I.R (37) 1950 Orissa 157.

49. I now pass to consider the contention of the petitioner that as the non-applicant Shri Ram Sahay has not taken an oath or affirmation in the manner prescribed under Article 188, he is not entitled to take his seat in the Assembly and that, therefore, he cannot continue in the Office of Speaker. I am not sure how far the applicant desired to suggest that the opponent Shri Ram Sahay's seat and also his Office of the Speaker became vacant by the failure of the non-applicant to take the oath according to the form set out in the Third Schedule. The petitioner's grievance is not that Shri Ram Sahay did not take any oath at all but that the oath which he took on the 26-1-50 before the Raj Pramukh, was not in accordance with the prescribed form. In reply, the learned Advocate General contended that even if the non-applicant did not take an oath strictly conforming to the prescribed form, by that omission his seat in the Assembly or the Office of the Speaker did not become vacant, and further that the question, whether for this reason Shri Ram Sahay should be permitted to take his seat and exercise the powers and perform the duties of the Speaker being one exclusively pertaining to the internal affairs of the Assembly, cannot be enquired into by this Court. The learned Advocate-General also raised the larger question, which may be conveniently dealt here, whether in view of the provisions of Article 194(3) a Court of law has jurisdiction at all to determine the validity of the continuance of the non-applicant Shri Ram Sahay in the Office of Speaker on any of the grounds alleged by the petitioner. In support of his contention that the Court has no jurisdiction, the learned Advocate-General referred us to pages 172, 173 and 176 of the May's Parliamentary Practice 14th edition and to the Leading Cases of ‘Bradlaugh v. Gossett’, (1884) 12 Q.B.D 271 and ‘Rex v. Graham Campbell’, (1935) 1 KB 594, on Parliamentary Privileges.

50. I am unable to accede to the objection of the petitioner that in taking an oath before the Raj Pramukh on 26-1-50 in the form, he did, the opponent Shri Ram Sahay did not comply with the provisions of Article 188. This Article requires every member of the Legislature to take an oath or affirmation according to the form set out for the purpose in the Third Schedule. It should be noted that the Article does not say that an oath or affirmation shall be taken in the form set out for the purpose in the Third Schedule. It uses the expression “according to the form.” This expression does not mean “in the form”, that is, a verbal and literal following of the form set out in the Third Schedule. It means the substantial following of the form. In other words, the Article means that the form set out in the Third Schedule or any form as near thereto as circumstances admit, shall be used in taking an oath or affirmation under the Article. In the present case both the petitioner and the opponent could not have clearly made an oath or affirmation in the form set out for the purpose in the Third Schedule, because they were neither elected nor nominated, after the Constitution came into force, as members of the Legislative Assembly under the Constitution. At the commencement of the Constitution, they happened to be members of a body referred to in Article 385 and after the commencement of the Constitution, they were continued as members of the body by virtue of Article 385. If, therefore, the petitioner is not inclined to dispute that an oath or affirmation made by a member of this body describing himself as a member of the body would be a substantial compliance of Article 385, there is no reason to hold that the oath taken by the non-applicant Shri Ram Sahay describing himself as the Speaker of Madhya Bharat Legislative Assembly and thus impliedly as a member of that body, is not a substantial following of the form.

51. The important question raised by the contentions of the parties is the extent to which Courts of Justice have jurisdiction to entertain matters which relate to the Legislative bodies under the Constitution, and the conduct of their affairs. Much as I desire to deal with the question fully, I think I should restrain myself from doing so, because we have not had the advantage of hearing full arguments on the point from the petitioner. I, therefore, propose to indicate here the broad principles on which the answer to the question must, in my view, depend. As the Legislature and its Speaker are entirely the creatures of the Constitution, it is necessary to turn to the Constitution itself in order to determine the question. Article 208 provides for the making, by a House of the Legislature, of rules for regulating, subject to the provisions of the Constitution, the procedure and the conduct of its business. Article 212 says that:

“1. The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.

2. No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers.”

52. Article 194 defines the powers, privileges and immunities of State Legislatures and their members. Sub-clause 3 of this Article stated that the powers, privileges and immunities of a house of the Legislature and of the members shall, until they are defined by the Legislature, be those of the House of Commons of the Parliament of the United Kingdom and of its members and Committees at the commencement of the Constitution. It will be observed, from the wording of Article 212 that the validity of the proceedings of the Legislature can be called in question on a ground other than the ground of an irregularity of procedure. Thus, the proceedings would not be protected if they are held in defiance of the provisions of the Constitution or by exercising some powers which the Legislature under the Constitution does not possess. It is also necessary to note that under Article 194, the powers, privileges, and immunities of State Legislatures and their members are not absolute. They are subject to the provisions of the Constitution and are modified by the fundamental principle that it is the Constitution which is Supreme and not the Legislature. It cannot, therefore, be inferred from the possession of certain powers and privileges by the House of Commons of the Parliament of the United Kingdom, that the like powers necessarily belong to the Legislatures under the Constitution. If a power or privileges claimed by the Legislature is clearly repugnant to the Constitution, then, notwithstanding the fact that it is one which the House of Commons enjoyed at the commencement of the Constitution, it must be denied to the Legislatures. It is unnecessary to enumerate here the powers, privileges and immunities of the House of Commons and to discuss which of these, the State Legislatures under our Constitution have. The existence of a power, privilege or immunity which is asserted must be determined with reference to each case in which it is in issue. The determination of a breach of recognised privilege is, however, a matter for the Legislature.

53. In the present case, the claim made by Shri Ram Sahay, is that if he has not taken an oath in conformity with Article 188, it is for the Legislature to prevent him from taking his seat and performing the duties and exercising the powers of the Speaker and that this Court has no jurisdiction to interfere in this matter falling within the ambit of the internal affairs of the House. I think the claim must be conceded both because it is recognised by the Constitution, and enjoyed by the House of Commons of the Parliament of the United Kingdom. It must be remembered that when the petitioner asks us to hold that the office of Speaker of the Assembly has fallen vacant and to restrain the opponent Shri Ram Sahay from discharging the functions and duties of the Speaker, the ground of attack is really this, that since the non-applicant, is not entitled to take his seat as he has not taken an oath in compliance with the provisions of Article 188, he is not, therefore, entitled to continue in the office of Speaker, Now, there is no Article in the Constitution providing that the seat of a member of a House of the Legislature shall become vacant if he fails to comply with the requirements of Article 188. Article 190 specifies the circumstances in which the seat of a member becomes vacant. The failure to take an oath or affirmation under Article 188 is not one of those circumstances. Sub-clause 4 of Article 190, however, gives the power to the House to declare the seat of a member vacant, if for a period of sixty days the member without permission of the House absents from all meetings thereof. Under Article 189(2) the proceedings in the Legislature are valid notwithstanding that it is discovered subsequently that some persons who were not entitled so to do, sat or, voted or otherwise took part in the proceedings. A member who sits in the House before complying with the requirements of Article 188 is liable to a penalty under Article 193. In my judgment, by providing that the proceedings in the Legislature shall not be invalid if a member sits in the House without taking an oath or affirmation as required by Article 188, by subjecting such a member to a penalty and by giving the House the power to declare the seat of a member vacant if he remains absent for a period of sixty days from the meetings of the House, the Constitution treats the matter of the failure to make an oath or affirmation as one relating to the internal affairs of the House and gives to the House itself adequate power to deal with such a member. It is open to the House to exclude a member who has not made an oath or affirmation under Article 188 and to declare his seat vacant under Article 190(4). On the other hand if such a member persists in taking his seat, the House can initiate appropriate proceedings under Article 193 against the member. As the sitting in the House of a member, who has not taken an oath or affirmation, does not render the proceedings in the Legislature invalid and as such a member is subject to a penalty, there can be no ground for a Court to make an order of restraint against the member only to prevent him from making himself liable to the punishment.

54. That in the House of Commons of the Parliament of the United Kingdom, a matter such as this relates to the internal affairs of the House and the Court has no jurisdiction to interfere, is clear from the decision in ‘Bradlaugh v. Gossett’, (1884) 12 Q.B.D 271. In that case Bradlaugh asked the Speaker to call him to the table to take the oath but the Speaker declined on account of what had happened on a previous occasion. The House resolved on motion that the Sergent-at-Arms should exclude Bradlaugh from the House until he stopped attempting to take the oath in disregard of a resolution of the House and of the Parliamentary Oaths Act, 1866. Bradlaugh, thereupon, claimed an injunction from the Queen's Bench Division to restrain the Sergent-at-Arms (Gossett) from enforcing the order of the House and a declaration that the order was void. The Court took the view that it was a matter relating to the internal management of the procedure of the House, and one of its members and that in consequence, the Court had no power to interfere. Stephen, J., held that the House of Commons was not subject to the control of the Courts in its administration of that part of its statute law which had relation to its own proceedings. He also observed — the observation is very much in point in the present case that if the Court had been moved to restrain Bradlaugh from taking his seat until he had taken the oath, it would certainly have refused to do so. It was also pointed out by the learned Judge that if the House had attempted by Resolutions or otherwise to protect Bradlaugh against an action from penalties, the Court would have disregarded such resolutions and determined the right of the parties according to its own interpretation of the Statute. I am, therefore, disposed to think that even if it be assumed in the present case that Shri Ram Sahay did not make an oath or affirmation under Article 188, this Court cannot restrain him from taking his seat and from discharging the duties and functions of the Speaker.

55. I do not, however, feel able to concur in the view that this Court cannot, on any ground, enquire into the legality of the continuance of the opponent Shri Ram Sahay in the office of Speaker. To the other grounds on which the petitioner challenges the continuance of the opponent in the office of Speaker, the analogy of the British House of Commons being the sole Judge of determining the question whether any person who claims to be the Speaker, is so, cannot, in my opinion, even remotely be applied. It is obvious that the objections to the validity of any person holding the office of Speaker in the form in which they have been raised here, can never arise in England. If the jurisdiction of the English Courts to determine matters challenging the legality of any person in the office of Speaker of the House of Commons is excluded, it is because of the limits imposed by the law of their Constitution, on the various institutions of Government and thus upon the extent to which the Courts are required to control the Parliament which is I supreme. To my mind, the objections raised by the petitioner as to the legality of the continuance of Shri Ram Sahay in the office of Speaker under Article 385 of the Constitution is not one relating to the internal affairs of the Assembly. The question at issue was no doubt, raised by the petitioner in the Assembly by way of a point of order. But the determination of the matter by the House or the Speaker is not conclusive. The question raised is of declaring the status of a person on the interpretation of the Constitution. Under our Constitution, it is the duty of this Court faithfully to expound and give effect to it according to its own terms. The claim, therefore, that it is not the function of this Court to declare whether under the Constitution Shri Ram Sahay has or has not the status of the Speaker of the Madhya Bharat Legislative Assembly, being one opposed to the first principles of the Constitution, must be rejected.

56. The last matter for consideration is the contention of the non-applicant that the relief sought should not be granted as he does not hold “what can be described as an office under the Crown”. Quite apart from the principles of English Law governing the issue of a writ of quo warranto, it is clear from the wide scope of Article 226 that this Court has the power to issue an order restraining any person acting in an office in which he is not entitled to act and also, if the case so requires declaring the office vacant, whereas in the present case the office said to be usurped, has been created by the Constitution itself with certain functions and duties attached to it. In this connection, it is sufficient to refer to the recent decision of a Bench of five Judges of this Court in ‘Daya Bhai Patel v. Regional Transport Authority’, AIR (38) 1951 Madh B 121, where the scope of the powers of this Court under Article 226 has been fully explained. In England information in the nature of quo warranto was not restricted only to an improper assumption of an office under the Crown. It appears to me from the decision in ‘R. v. Guardians of St. Martin’, (1851) 17 QB 149, and other cases that information in the nature of quo warranto lay in respect of an office not derived from the Crown but created by an Act of Parliament and that it lay in all cases where the office was of a public nature and substantive office. In the case of ‘Rex v. Speyer’, (1916) 1 KB 595, Lord Reading, C.J, pointed out that informations in the nature of quo warranto were used for the more easy trial of the rights of offices and franchises in Corporations and boroughs. The procedure of an information in the nature of a writ of quo warranto has now been abolished in England by Section 9(1) of the Administration of Justice (Miscellaneous Provisions) Act, 1938 and it is now provided that the High Court may grant an injunction restraining a person from acting in a public office to which he is not entitled. The principles which governed the former procedure, however, are still applied by the English Court in granting an injunction. In the view I have taken of the merits of the petition, I consider it unnecessary to express any opinion as to what is a public office and whether the office held by the opponent is a public office. On these matters, we have not heard full arguments from the parties. I must, therefore, reserve all these points for consideration if and when the question arises again, and where the Court may be of the opinion that it is necessary to issue a writ in the nature of quo warranto.

57. On a consideration of the several questions argued before us and for the reasons stated above, I think this petition must be dismissed with costs.

58. BY THE COURT: The rule is discharged and the petition is dismissed with costs. We fix Rs. 100/- as fees of the counsel for the opponent Shri Ram Sahai. In our opinion this petition does not involve any substantial question of law as to the interpretation of the Constitution. A certificate to file an appeal to the Supreme Court is, therefore refused.

59. Petition dismissed.

Misc. Appln. No. 3 of 1950

Anand Bihari Mishra v. Ram Sahay

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent's (Shri Ram Sahai's) Arguments

State's Arguments (Advocate General)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Anand Bihari Mishra v. Ram Sahay

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