XI LOK SABHA DEBATES,   Session IV (Budget) 

Thursday,March 13, 1997 / Phalguna  22, 1918 (Saka)


*t30

Type of Debate: STATUTORY RESOLUTIONS

Title: Regarding approval of continuance in force of Proclamation by President
in respect of the State of Uttar Pradesh general discussion - Uttar Pradesh 
Budget; Demands for Supplementary Grants (Uttar Pradesh). (Not Concluded)

TEXT :


 STATUTORY RESOLUTION RE: APPROVAL OF CONTINUANCE IN FORCE OF PROCLAMATION

 BY PRESIDENT IN RESPECT OF THE STATE OF UTTAR PRADESH

 GENERAL DISCUSSION -- UTTAR PRADESH BUDGET

 DEMANDS FOR SUPPLEMENTARY GRANTS (UTTAR PRADESH)

1649 hrs.

MR.  SPEAKER:  We  now  move on to the Statutory Resolution to be moved by the
Minister. As I said in the morning, Justice Lodha has raised a  Constitutional
point  on  the  issue of extension of the President's Rule. I said that before
taking a final decision I will hear the Members. Justice Lodha may speak.

THE  MINISTER  OF  HOME  AFFAIRS  (SHRI  INDRAJIT  GUPTA):  Shall  I  move the
Resolution?

MR. SPEAKER: No, he is objecting to the moving of the Resolution itself.

SHRI SOMNATH CHATTERJEE (BOLPUR): Very respectfully I would submit that he has
to take objection on certain proposal.  Unless it is moved, it is just a paper
proposal.  It does not become the property of the House.  It is entirely up to
you.  It is not very important but the question is of procedure.



SHRI JASWANT SINGH (CHITTORGARH):  Mr.  Speaker,  Sir,  in  this  context,  as
mentioned by my leader, Shri Atal Bihari Vajpayee and subsequently executed by
Shri  Atalji  and some other Members, we have actually also submitted for your
consideration that  for  this  particular  matter,  given  the  constitutional
complexity  of  the  situation,  given also the fact that the Supreme Court is
seized of the matter of President's Rule in UP and that we are dealing with an
exceptional situation, the Attorney General be invited to the House.  I  would
request  that  this  complex situation not be taken up for discussion today at
five o'clock in the evening. If at all some business is to  be  taken  up,  we
could,  perhaps,  consider the Budget of UP. Then this matter receives due and
proper consideration. Otherwise, we will be treating rather perfunctorily what
is a serious issue.

MR. SPEAKER: I will read out the notice given by Shri Lodha.

JUSTICE GUMAN MAL LODHA (PALI): I would complete my submission, Sir.

MR. SPEAKER: Shri Somnath Chatterji has raised a question. Though this  notice
may not be exactly in appropriate form, Shri Lodha has said:

        
        "The  Constitution  of India, Article 356 or any other Article,
        nowhere provides for such  extension  and  this  Resolution  is
        unconstitutional.  The  Government  should  come forward with a
        Constitutional Amendment if it desires to end the deadlock  and
        Constitutional  crisis  likely  to  be  created  on the 17th of
        April, 1997, by the expiry of the President's Rule."

SHRI SOMNATH CHATTERJEE (BOLPUR): This is an advisory notice. The  Member  has
given  advice  to  the  Government.  The Government may consider it or may not
consider it. What is the point there?

JUSTICE GUMAN MAL LODHA (PALI): I have not completed my submission. How can he
object to it?

MR. SPEAKER: Let the hon. Member make his submission.



JUSTICE GUMAN MAL LODHA (PALI): Under Article 356 of the Constitution  it  has
been provided that proclamation by the President can be issued, and thereafter
it  can be extended for another six months. Under Article 356, Clause (4), if,
after that, any further extension is required, the requirement of the  law  is
that  there must be a proclamation of emergency and after that proclamation of
emergency, there must  be  consultation  with  the  Election  Commission  that
elections  cannot  be  held,  and  then and then only further extension can be
made. Clause (5) reads like this:

        
        "Notwithstanding anything contained in clause (4), a resolution
        with respect to the continuance  in  force  of  a  proclamation
        approved  under clause (3) for any period beyond the expiration
        of one year from the date of issue of such  Proclamation  shall
        not be passed by either House of Parliament unless -

        
         (a) a Proclamation of Emergency is in operation, in the
                whole  of India or, as the case may be, in the whole or
                any part of the State, at the time of  the  passing  of
                such resolution, and

         (b)  the  Election  Commission   certifies   that   the
                continuance in force of the Proclamation approved under
                clause   (3)   during  the  period  specified  in  such
                resolution is necessary on account of  difficulties  in
                holding  general  elections to the Legislative Assembly
                of the State concerned.

	Now,  it  is not in dispute that after the Government led by the Chief
Minister  Mayawati  went  out  of  power,  a  proclamation  was  issued.  That
proclamation  was again extended for six months. During this period, elections
were held. On the 16th or 17th of October,  when  the  Assembly  elections  in
Uttar  Pradesh  have  been  completed  and the results have been declared, the
Governor of Uttar Pradesh, instead of calling  some  of  them  who  enjoy  the
confidence and who can run the Government to form the Government, on the 16th,
sent a report.

On account of that, another extension was given for six months. Now, what I am
saying is that that extension of six months after completion of one year could
not have been given because of the requirement of Clause 5 which is mandatory.
That extension was confirmed by this House also. But the hon.  High  Court  of
Allahabad  in  a writ petition held unanimously, and by a full bench judgement
consisting of three judges given on December 19 said - I will  read  only  one
sentence, the operative part of it:


        "Justice B.N. Lal delivered the judgement  in  a  packed  court
        room at 10.15 a.m."


	On behalf of all three judges he said:


        "This Court unanimously holds that  the  impugned  Presidential
        proclamation,  dated  October  17, 1996 reimposing Presidential
        rule under Article 356 of the  Constitution  of  India  in  the
        State  of Uttar Pradesh subsequently approved by the Parliament
        is unconstitutional, issued in colourable  exercise  of  powers
        and  is  based  on wholly irrelevant and extraneous grounds and
        therefore cannot be allowed to stand. Consequently, the same is
        hereby quashed."

	Hon.  Speaker,  Sir,  I  would like to repeat the last one sentence in
which he has said:


        "Unconstitutional, issued in colourable exercise of powers  and
        is  based  on  wholly  irrelevant  and  extraneous  grounds and
        therefore cannot be allowed to stand. Consequently the same  is
        hereby quashed."

	Now,  Sir,  this unanimous judgement of the Allahabad High Court which
has been delivered on December 19 has not been  set  aside  by  any  appellate
forum,  that  is,  the  hon. Supreme Court. Now, Sir, the position is that not
only according to our logic or our argument or our  contention  or  citing  of
some  precedents,  but  by  a  judicial  verdict of the full bench of the High
Court, it has been quashed and held to be  unconstitutional.  Therefore,  Sir,
the  question  is that another extension of six months which is now sought for
is again another unconstitutional act which has got no bedrock, which has  got
no  basis,  no legal foundation and nowhere contemplated by Article 356 of the
Constitution. 

	Therefore, Sir, the first point which I  want  to  raise  before  Your
Honour  is  that,  now,  there  is  no  ground, now there is no Constitutional
permissible jurisdiction under which  the  hon.  Home  Minister  can  ask  for
consideration  of this Resolution. It is because this Resolution in turn wants
to perpetuate  one  unconstitutional  act  by  another  unconstitutional  act.
Therefore,  I  would  submit  that  the  Resolution  should  not allowed to be
considered by Your Honour as a guardian of this House. It is because we owe to
our oath to the Constitution. We cannot go beyond it. All of us are  bound  by
it.  Therefore,  Sir,  this  is  one aspect which I want to put it before Your
Honour.

	Now, Sir, the second aspect is that it may be said that an appeal  has
been  filed  in  the  Supreme  Court  by the Union of India and that appeal is
pending.

Now the pendency of the appeal in itself would  never  mean  quashing  of  the
judgement of the Allahabad High Court.


	Secondly, if pendency of the appeal is likely to be used by them as an
armoury weapon for permitting the discussion on this extension of proclamation
then I would submit that it was for the Union of India to file an  application
before  the  hon.  Supreme  Court  and  obtain  an  order  with  regard to the
unconstitutionality of the earlier Presidential Proclamation.  The  matter  is
pending  before  the  hon.  Supreme  Court. According to the assessment of the
Governor, he has not been able to get any party or any person who can form the
Government. But according to my assessment, the party having the  majority  or
having the largest number of Members was entitled to be called and Shri Kalyan
Singh should have been called.

	This is what was said earlier also. This is what happened in the  case
of  this House when our leader Shri Atal Bihari Vajpayee was called having the
support of the largest number of Members. But whatever it  may  be,  it  is  a
matter  of  debate.  There  could be two views on that point because Allahabad
High Court has taken one view and the other view has been taken  earlier.  But
nonetheless, it was the duty of the hon. Minister of Law, the hon. Minister of
Home  Affairs  and  the Union of India to have filed an application before the
hon. Supreme Court and obtained a direction and have asked for  extending  the
proclamation  which  has been quashed for another six months in order to get a
decision of the Supreme Court. This they have not done. They can  do  it  even
now  because  the  expiry  of it would be on 17th of April. It is not expiring
today or tomorrow. There is no haste that one fine morning  they  get  up  and
request  Your  Honour and put a Resolution in the Agenda, of course, with your
permission. It is such a serious matter that the fate of fifteen crore  people
is  going  to  be  considered  because  they  are  living without a democratic
Government in spite of their Members having been elected. The surprising thing
is that the Governor has not even notified to the Election commission for  the
purpose  of giving them Oath. The Governor has not given them Oath and has not
allowed the Government to be formed.


	In the Bommai's case it was held that the floor test is the best test.
If  there  is  a  doubt in the mind of the Governor that who has go a majority
then he could have gone into it and obtained it on the floor after getting the
Government formed. That also he has  not  done.  Therefore,  today,  there  is
nothing to be extended.

	The Proclamation issued on 17th October 1996 is non est,  non-existent
on  account  of  being  declared  as  unconstitutional. There is nothing to be
extended. When there is nothing to be extended, I  would  respectfully  submit
that  because  of  the  bar of Clauses 3 and 4 of Article 356, the question of
getting this Resolution moved and considered, cannot  be  and  should  not  be
allowed by Your Honour.

	One more point I would like to submit before I take my seat. It may be
argued  that  on  behalf  of the other side, the Government, that not only the
appeal is filed but there is a limited Stay Order which has been issued by the
hon. Supreme Court. Now that is the point and I must answer this  point.  That
is  the  point  we  must know that what is the Stay Order. It would be perfect
justification, if the  operation  of  the  judgement  or  if  this  particular
operation  has  been  stayed  or  quashed.  Then  the  consideration should be
different.

	But I would read the Stay Order which has  been  issued  by  the  hon.
Supreme  Court  in  order  to  bring  home the point that the operation of the
judgement has not been stayed.

	All that has been stayed is that at the moment the Governor would find
out the possibilities of forming the  Government  and  in  that  respect  this
judgment  would not come into stay for that purpose and then we would hear the
case early and till then the matter is before the Governor.

	Now,  I  would read this one line Stay. Interim Stay of the High court
dated December, 19th says: "In the mean time ...(Interruptions)


	Kindly  listen. It is a delicate legal matter. If I am wrong, I can be
corrected. ...(Interruptions)

SHRI SOMNATH  CHATTERJEE  (BOLPUR):  This is a very important point, no doubt.
...(Interruptions)

JUSTICE GUMAN MAL LODHA (PALI): Hon.  Speaker,  the  legal  interpretation  of
every  word  is  very  delicate  and  it  requires some very calm and composed
consideration. So, I am praying with them to bear with me for a minute.

Interim Stay of the High Court Order dated December, 19th, says:

        
        " In the mean time, the Attorney-General assures us that  there
        will be no dissolution of the House. ..."
Because dissolution of  the  House  was  imminent,  so,  the  Attorney-General
assures us that there will be no dissolution of the House.

	It further says:

        
        "We  also  so  direct,  however,  this  will  not  preclude the
        formation of a popular government if possible. Liberty for  the
        petitioner  to approach for a date for hearing the petition and
        the matter will be taken up after the conclusion of  the  Civil
        Judge, Constitutional Bench."

	Therefore, as I respectfully  submitted  that  the  judgment  and  the
constitutionality  having  been  adjudicated  by the Allahabad High court Full
Bench, that adjudication of the constitutionality of the Proclamation being in
violation of Article 346 of  the  Constitution  stands.  It  would  either  be
confirmed  by  the hon. Supreme Court after full hearing or they can quash it,
either way. Till then, Sir, the Government can  be  formed.  Therefore,  I  am
submitting  that  this  Stay Order is an Order, a limited Order, on account of
which the Proclamation, constitutionality has not been revived, has  not  been
put  to  constitutional  what  was  unconstitutional and, therefore, Sir, this
would continue to be unconstitutional till it is quashed. Of  course,  it  was
open to them to move the hon'ble Supreme Court for such directions as they may
deem  proper. But having not done so, my respectful submission is that Article
356 Clause IV and V read with this judgment  and  all  the  orders  which  are
there,  the  facts  and the circumstances, they provide a complete bar for the
consideration of any non  est,  nonexistent  proclamation  and  my  respectful
submission  is  that  on account of that, I have submitted this constitutional
limited aspect and the rest, of course, can be submitted by the other Members.

	Thank you very much.

SHRI SATYA  PAL  JAIN  (CHANDIGARH):    Mr. Speaker, Sir, I have also given my
notice.   Please allow me to speak. ...(Interruptions)

MR. SPEAKER:  It is not a question of a notice.

SHRI  SATYA  PAL JAIN (CHANDIGARH): Sir, I am opposing the introduction of the
Bill. ...(Interruptions)

MR. SPEAKER:  It is not a Bill that we are introducing.

SHRI SATYA PAL  JAIN  (CHANDIGARH):  Sir,  I  am  sorry.  I  am  opposing  the
introduction  of this Statutory Resolution. Sir, I have also given a notice in
writing.

MR. SPEAKER:  Please do not come individually on serious issues like this.

SHRI SATYA  PAL  JAIN  (CHANDIGARH):    Sir, I have a right to say my point of
view.  Kindly give me some time to speak.  I have given it  in  writing  also.
...(Interruptions)

SHRI SOMNATH CHATTERJEE (BOLPUR): Sir, my intervention in this discussion  may
not be treated that on principle, I approve of the application of Article 356.

	Earlier when this Resolution had come up, I said that in  the  context
of  the  situation  prevailing  in  the State of Uttar Pradesh, we had decided
reluctantly to support that Motion. But now we do not want that  there  should
be  a genuine Constitutional chaos in Uttar Pradesh. Therefore, it is our duty
to see now as to what should be done and what the House should do in  view  of
the state of affairs as they prevail today in the absence of any likelihood of
a Government being constituted in Uttar Pradesh.

	I have heard very, very attentively to former Chief  Justice  and  our
distinguished  Member,  Shri Guman Mal Lodha's submission. I do not say he has
laid down a Lodha's jurisprudence! But it is some what surprising to hear from
a distinguished jurist who occupied the position of the  Chief  Justice  of  a
High Court. Be it of Assam!

DR.  MURLI  MANOHAR  JOSHI  (ALLAHABAD):  Sir,  he  is  referring  to   Assam.
(Interruptions)

SHRI SOMNATH CHATTERJEE (BOLPUR): No, that is for Shri Sontosh Mohan Dev. That
is not for you.

DR. MURLI MANOHAR JOSHI (ALLAHABAD): Or for anybody.



SHRI SONTOSH MOHAN DEV (SILCHAR): We were very happy with him. I have  nothing
against  him.  He  was  a  very  good  judge of the High Court. I have nothing
against him. I feel proud of you. Why are you annoyed?

SHRI SOMNATH CHATTERJEE (BOLPUR): He should have gone to the Supreme Court. He
was a very distinguished judge as Chief Justice of a High Court. I am sure  he
would,  as  a  former  Chief  Justice,  never  say that once a matter has been
decided by a trial court, subordinate court, although an appeal is pending and
where the appeal court has intervened as it has done here, therefore, that the
subordinate judge's decision is the final to the extent of no question can  be
asked  on that. I do not think that he could have passed that judgement. It is
a question of sub judice. It is well-known that whatever order is passed,  the
earlier  lower  courts  order will merge in that. The theory of merger is very
well-known. There obviously, he has to adopt `mix politics with law.' This  is
the trouble. One thing is very clear.

JUSTICE GUMAN MAL LODHA (PALI): Either of us is mixing.

SHRI SOMNATH CHATTERJEE (BOLPUR): Then you admit about yourself. It is good.

JUSTICE  GUMAN  MAL  LODHA  (PALI):  No, this is what I am saying that you are
doing it.



SHRI SOMNATH CHATTERJEE (BOLPUR): If I follow a distinguished jurist like you,
but I hope not to follow you. It has been said that the High  Court  has  held
that there was a colourable exercise of power. The only portion which has been
commented  on  by the learned hon. Member here, is that as there was no reason
for imposition of the President's Rule, the Governor should have continued  in
making  efforts, the Governor could have called Shri Kalyan Singh as Shri Atal
Bihari Vajpayee was called here even if that  Government  has  lasted  for  13
minutes  or  I do not know - it lasted here 13 days - and that exercise should
have gone on. Well, this is what has been argued. Is it a colourable  exercise
of power? Obviously `No' Sir. That it has no relation to the objects. That is,
there  is no nexus. So far as Article 356 is concerned, the basic nexus has to
be that it is not possible that a situation has arisen in which the Government
of the State cannot be carried on in accordance with  the  provisions  of  the
Constitution.




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