TEXT :
17.10 hrs.
MR. SPEAKER: Now, we take up Item Nos. 17, 18, and 19.
SHRI P. SHIV SHANKER (TENALI): Sir, I am raising a constitutional objection to the introduction of the Goa Budget in this House... (Interruptions)
MR. SPEAKER: Hon. Members, please take your seats.
SHRI P. SHIV SHANKER : Sir, nobody would shed tears much less the crocodile tears for the imposition of the Presidential Rule in Goa the manner in which the developments had taken place.
I submit that the action that has been taken to impose the Presidential Rule is justified, but what has happened in this case is that while issuing the proclamation of the Presidential Rule, the Government of India dissolved the Legislature and vested the powers of the Legislature in the Parliament which it ought to do in the case of an action under Article 356(1)(a).
Sir, I am told just now by the Minister for Parliamentary Affairs that the proclamation, which it was approved in this House, was not approved in the other House. But just now, I am told that it has been approved in the other House. Be it as it may, in spite of that I am raising this objection.
My submission is, all of us are aware that under Article 141, read with Articles 142 and 144, the position is that an order or a judgement or a decree that is passed by the Supreme Court is binding on the entire nation. In other words, whatever the decision of the Supreme Court is, that is the law of the land. What the Supreme Court has said with respect to the imposition of the Presidential Rule? In the case of Bommai, the Supreme Court categorically said, and that is the view of the entire Court, that the dissolution of the
Legislature must take place only after the proclamation is approved by both the Houses.
Sir, this is a very important matter and it is having far reaching consequences, therefore, I beg the indulgence of the House to listen to me a little carefully. The Supreme Court has, in paragraphs 121 and 122, said and I quote:
"It is therefore, necessary to interpret clauses 1 and 3 of Article 356 harmoniously, since the provisions of clause 3 are obviously meant to be a check by the Parliament which also consists of Members from the concerned States on the powers of the President under clause 1. The check would become meaningless and render ineffective if the President takes irreversible action while exercising his power under subclause a, b and e of clause 1 of the said Article..."
This is important, Sir,
"...The dissolution of the Assembly by exercising the powers of the Governor under Article 174(2)(b) will be one such inevitable action. Hence, it will have to be held that in no case..."
"...in no case the President shall exercise the Governor's power of dissolving the Legislative Assembly till at least, both the House of Parliament have approved of the proclamation issued by him under clause 1 of the said Article."
Therefore, the constitutional provision is absolutely clear. Then, they say:
"Our conclusion, therefore, firstly is that the President has no power to dissolve the Legislative Assembly of the State by using his power under sub-article (a) of clause 1 of article 356 till the proclamation is approved by both the Houses of Parliament under clause 3 of the said article.
He may have power only to suspend the Legislative Assembly under sub-clause (c) of clause 1 of the said article.
Secondly, the court may invalidate the proclamation whether it is approved by the Parliament or not. The necessary consequence of the invalidation of the proclamation would be to restore the status quo ante and, therefore, to restore the Council of Ministers and the Legislative Assembly as they stood on the date of the issuance of the proclamation."
Therefore, the position is that the Legislative Assembly cannot be dissolved unless both the Houses of Parliament approve the proclamation.
Then, Sir, I would just like to bring to your notice one or two more paragraphs -- page 298. This is conclusion no. 4 of the Bench, which has been approved by the entire court. It says:
"Since the provisions contained in clause 3 of article 356 are intended to be a check on the powers of the President under clause 1 thereof, it will not be permissible for the President to exercise powers under sub-clauses (a), (b) and (c) of the latter clause to take irreversible action till at least both the Houses of Parliament have approved of the proclamation. It is for this reason that the President will not be justified in dissolving the Legislative Assembly by using the powers of the Governor under article 174(2)(b) read with article 356(1)(a) till at least both the Houses of the Parliament approve of the proclamation."
Sir, this has been approved by the entire court. I am reading paragraph 454 given in this judgement. These are the conclusions of the court. It says:
"In the light of the reasons given and conclusions recorded herein above, we find ourselves in agreement with the conclusions (1) (2) and (4) in the judgement of our learned Justice Sawant."
Therefore, the entire court agreed that unless both the Houses approve the proclamation, the dissolution cannot take place.
Now, let us see the proclamation itself. Nobody would shed tears, not even crocodile tears, as I said in the matter of imposition of Presidential rule. What the Government would have done is this. The Government, while imposing the Presidential Rule, should have placed the House in suspension and then got the approval of both the Houses of the proclamation and thereafter they should have dissolved the House.
Now, kindly see the notification. I am reading it. It says:
"Kindly, therefore, in exercise of the powers conferred under article 356 of the Constitution and of all the other powers enabling me in that, I hereby proclaim ...."
I will leave (a). I will quote (b):
"(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of the Parliament."
After dissolving the Legislature, the powers of the Legislature have been vested with the Parliament, which they could not have done. That means, this is purely an illegal notification. This does not have the sanction of law. The law is what the Supreme Court has said.
Therefore, my submission is that if the Legislature could not have been dissolved, then the only way out would be under article 196 read with article 198, it being a Money Bill, it will only go before the Legislature. Now, the position is this. This notification being totally illegal, it could not have been issued. If it has not been issued, then it will be deemed that the Legislature of Goa still survives; whether it is suspended or otherwise, I am not going into that question at this stage.
But once we come to the conclusion that this part of the Notification is illegal, then the position is that the Budget cannot be presented here. Parliament cannot assume the powers of the State Legislature for that purpose. Therefore, the only way out is that since they say now that the proclamation has been issued, either they have to issue a fresh proclamation and then go ahead for the dissolution after the proclamation is approved by both the Houses, and, then come here for the purpose of Budget. Otherwise, the Budget cannot be presented. This is my submission.
SHRI P. SHIV SHANKER: How?
SHRI P.R. KUMARAMANGALAM: May I complete? When one is challenging the legal validity of a proclamation, the appropriate time would be, to say that this House would not have jurisdiction to consider the Resolution for approval, at the time when the House was considering it. It is because fundamentally it is an illegal proclamation which should have been addressed to this House, if I may humbly submit, at the time when the House was considering it. The House has considered the proclamation and has approved it by Resolution. So has the Upper House. Today, I would like to inform that the Upper House has approved the proclamation by Resolution. The requirement under Article 356(3) insofar as approval is concerned, has been met with. Not only that, I think, I could quote even the Bommai judgement from my memory to say that they say that all acts done while the proclamation is there, could be valid acts while the proclamation stands during the period, even if it was disapproved in the other House. Now that situation does not arise here. Here the situation is very, very clearly one that we are now considering a Budget in our capacity under powers given, as rightly pointed, on behalf of the Legislature of Goa which stands dissolved. We are considering after it has been approved by both the Houses.
I think it is necessary for me also to inform that the Cabinet considered this in-depth. We also did receive a legal opinion from the Attorney-General and so did the Cabinet and the Government fully. And, we came to the conclusion that in the best interest of all that is there, between trying to adhere very hardly and tightly to a rule which is given in the Bommai judgement and to the option of looking at the grey areas which are there - there is a grey area - we had a situation that if we held the Assembly in suspended animation, the charge was coming from all across Party lines that this would give an opening for possible horse trading on all sides. It is with conscious analysis of the public interest involved, we said that here was a case where all parties put together including the Congress Party in Goa demanded that the House be dissolved. When it was done by all the Members of the Legislative Assembly and their respective leaders, we decided that this is one of those cases which is an exception to the rule of Bommai case. Therefore, we decided to go in for dissolution.
This being the position, the facts being different, the situation being different, the Constitution has to be worked harmoniously. If one goes by an extraordinary hard and fast rule, we will have a situation where many grey areas do arise in the Bommai judgement which we can go and dispute for a long time. It is not that the hon. Member, Shri P. Shiv Shanker's arguments are totally irrelevant. They are very relevant. But, I do believe that in the present circumstances of this particular case we did consider them and we did feel that these are not correct. Even when the Cabinet itself was considering the recommendations to the President, we have taken it into consideration, and, we believed that our action is legal.
It is legal essentially because there is a situation that if we try to follow the hard and fast rule, which is being suggested here, we would only have a situation where we will defeat the very purpose for which Article 356 is being invoked here in the case of Goa. In fact, the interpretation in the Bommai judgment has been given only in order to ensure that nothing irreversible happens. But, actually, here what would happen is that if we had suspended animation of the Assembly, a situation may arise that what is not supposed to operate might operate in the case of horse trading where we would have an Assembly where certain people will come forward having dealt with various Members. We did not want a situation like this. It was a demand, for this reason, across party lines in Goa Assembly that they wanted dissolution. It is in response to their demand looking at it, after receiving the Attorney General's opinion that the Cabinet decided. I am submitting once again respectfully that this is not the time to raise this issue. At the moment what is before this House is Goa Budget. There was an opportunity this House had when the Resolution for approval of the proclamation came. Therefore, I believe, once the House has resolved, I do feel that this argument will no longer stand in the way of the Goa Budget being considered.
SHRI P. SHIV SHANKER : Sir, my friend has totally bypassed the basic argument and he is trying to beat about the bush. May I just at this stage say that his Father had been a very eminent lawyer, perhaps one of the dozens in this country. ...(Interruptions). I may also tell you that I had the privilege of assisting him in some very important cases. ...(Interruptions). Let me also tell you for the knowledge of my friend even that even his wife is a very good lawyer. I may also bring to your notice that her chances has been interceded because of this gentleman. ...(Interruptions). Therefore, his arguments are basically breast beating arguments. He says that the issue should have been raised at the time when the proclamation was approved in this House. ...(Interruptions). Does an illegal Act become ? Then, he must go further and say that you are stopped from pleading it otherwise. The legal position is absolutely clear. If a thing has to be done it has to be done according to law or not at all. This is the concept on which we proceed. If this is the concept,even today, the position is that if they had taken a wrong action at the initial stage itself for dissolving the Legislature -- it is totally wrong, against the law of the land -- will this House permit them to proceed merely because he now says that the Attorney General of India has given them the opinion? Is he such a great personality that his opinion cannot be questioned? My friend has himself sat on the judgment of the opinions that were rendered by the former Chief Justices of the Supreme Court when he was the Minister of State for Law. He has said that he did not agree with them. Are they so great? Opinion could be only opinion. ...(Interruptions). Are they so great that their word is law? It is not. Wisdom is not the only repository of these personalities. We have also held some positions. We have also been lawyers. All of us know what it means. If legally the Supreme Court categorically says that you cannot dissolve the House unless the proclamation is approved by both the Houses, it is in unmistakable terms that the Supreme Court has expressed and that expression has to be taken as the law of the land.
Therefore, what has been done by the Government is totally wrong. I am saying that nobody will shed tears for the Presidential rule and I have myself categorically said that you should have imposed it. But if you had imposed it, the only thing you should have done is that you should have placed it in a suspended animation till both the Houses approved it, and then you should have dissolved the Assembly. That is what the Supreme Court says. You will act against the dicta of the Supreme Court and then say that what you have done is a justifiable action. I am sorry to say that this amounts to misleading this House and taking advantage of a situation...(Interruptions)
SHRI P.R. KUMARAMANGALAM: Can I interrupt for a moment?
SHRI P. SHIV SHANKER : Let me complete first.
SHRI P.R. KUMARAMANGALAM: I wanted to interrupt because there is a serious charge that you are making.
Mr. Speaker, Sir, I have a lot of respect for Shri Shiv Shanker Ji. When he pulled my legs a bit in the name of my father or my wife, I had no objection. But he should kindly desist from using words like `we are misleading the House'. That is a severe charge.
SHRI P. SHIV SHANKER : I never said in that manner...(Interruptions)
SHRI SATYA PAL JAIN (CHANDIGARH): Sir, when Shri Advani started his speech, he pointed out in his speech that if somebody had gone through the S.R. Bommai case, then somebody could have questioned even the validity of the Resolution. He did point out that. There is no question of misleading. Shri Advani himself said it in his speech. He did make this point which you are raising now, but still nobody raised that point at that time.
SHRI P. SHIV SHANKER : Sir, I said that the argument that is being addressed is highly misleading.
... (´ªÉ´ÉvÉÉxÉ)
MR. SPEAKER: You take your seat, please.
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we are estopped from raising it. If you can satisfy that we are estopped
from raising it, that is a different issue. But it is not. This is the legal question, and on a legal question there can be estoppel. Therefore, what I am submitting is that they cannot raise these arguments in the face of the judgement of the Supreme Court and, therefore, there is no question of the Bill being brought here. They will have to take a proper approach now. They will have to withdraw these Bills and come forward at a later stage, after duly dissolving the House. This is my submission.
SHRI SATYA PAL JAIN : Sir, Shri Shiv Shanker says that illegality has been committed. It is not a question of illegality. The Parliament has already ratified it. It is the decision of the Parliament. How can that be reopened now?
SHRI P.R. KUMARAMANGALAM: Mr. Speaker, Sir, I am sorry to say that if the House considered itself to be fit having the legal jurisdiction to approve it by Resolution one, unless they move today another Resolution withdrawing the approval, it is very very clear. I would like to use the words of hon. Shiv Shanker Ji himself. He said: "It does not mean that the Bommai judgement is the final and ultimate word in every form". We have looked at it in depth and I submit that it is an exception to the rule where we believe that the very purpose of article 356 of the Constitution will be defeated if in a case like Goa where the Constitution is not being able to be worked because of lack of majority of any party, and if we hold it in suspended animation, we will be destroying the very fundamentals of democracy by opening up the arena for horse-trading. This is something which I said very specifically and it was demanded at that time by all the parties. This being so, I think it is also too late now to suddenly wake up and rise to this occasion. This particular notification comes very squarely within what we believe is the right legal position of powers under article 356 for the President and I request that the House takes this up because at the moment the House is of the view that this is a valid notification and it has approved it. Once the House has taken this decision, it can be changed only if the House again passes a resolution to the effect that it withdraws the approval. Till then, let me tell you this is a valid decision. I do not want to use the word estoppel because the House does not estop anybody.