Patna High Court
Indra Kumar vs State Of Bihar And Ors. on 8 April, 1988
Equivalent citations: AIR1988PAT309, AIR 1988 PATNA 309
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER S.B. Sinha, J.
1. This writ petition raises a question as to whether this Court in exercise of its power conferred upon it under Article 226 of the Constitution of India can decide the validity of a bill, which is yet to become an Act.
2. In this writ petition the petitioner has prayed for a declaration that the Government of Bihar had no authority to introduce the Criminal Procedure (Bihar Amendment) Bill, 1982 in Bihar Legislature and the Bihar legislature in turn had no authority to pass the aforesaid bill, which is void ab initio, unconstitutional and ultra vires.
3. The petitioner is a member of the Bihar Legislative Council. It is asserted that the 'bill' known as the Criminal Procedure (Bihar Amendment) Bill, 1982 was introduced in the Bihar Legislative Assembly on 27-7-1982, which was passed on the same day and transmitted to the Bihar Legislative Council. The said bill was also passed by the Bihar Legislative Council on 30th July, 1982.
According to the petitioner, in terms of Article 37 of the Constitution of India an embargo has been put upon the State Legislature in making any law contrary to the provisions contained in Part IV of the Constitution. It has been asserted that under Article 51A of the Constitution mandatory duties has been assigned to cherish and follow the noble ideals which inspired our national struggle for freedom.
According to the petitioner separation of judiciary from the executive was also one of the noble ideals of the national struggle, which is envisaged under Article 50 of the Constitution. According to the petitioner, although the Parliament separated the judiciary completely from the executive by enacting Code of Criminal Procedure, 1973 (Act 2 of 1974), but contrary thereto the amendment bill is being passed According to the petitioner in terms of the amendment bill, power is sought to be transferred from the judiciary in favour of the executive and as such the same is beyond the legislative competence of the State Legislature.
4. The petitioner appeared in person and ably argued his case. The petitioner, when questioned, as to whether this court can declare a 'bill' to be null and void, he relied upon Articles 200 and 201 of the Constitution of India. The petitioner further submitted that as the decision of the Supreme Court given under its advisory jurisdiction under Article 143 of the Constitution is also a law within the meaning of Article 141 thereof, the same power can also be exercised by the High Court in exercise of its power conferred upon it under Article 226 of the Constitution.
The petitioner has further submitted that 'bill' is also a law within the meaning of Article 246 of the Constitution. In support of his arguments the petitioner has relied upon Hoechst Pharmaceuticals Ltd. v. State of Bihar, AIR 1983 SC 1019; Re: The Special C6urts Bill, 1978, AIR 1979 SC 478 : (1979) 1 SCC 380 and Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 : AIR 1973 SC 1461 as also U. P. State Electricity Board v. Hari Shanker Jain, AIR 1979 SC 65.
5. The learned Additional Advocate General, appearing on behalf of the State, on the other hand, submitted that this Court cannot exercise its power conferred upon it under Article 226 of the Constitution in declaring a bill unconstitutional.
In this connection the learned Additional Advocate General has referred to a case reported in AIR 1961 Ker 324, Thirumalpad v. State of Kerala.
Code of Criminal Procedure, 1973 was! enacted to consolidate and amend the law relating to criminal procedure. Criminal Procedure including all matters included in the Code of Criminal Procedure at the commencement of the Constitution finds place in Item No. 2 of List III (Concurrent List) of 7th Schedule of the Constitution of India.
Evidently, therefore, the State Legislature has the requisite power to make law amending the provisions of the Code of Criminal Procedure, 1973 subject to the other provisions of the Constitution.
5A. Legislative procedures of the State Legislature are contained in Articles 196 to 201 of the Constitution. Article 200 of the Constitution reads as follows : --
"When a bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President.--
Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom;
Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill."
5B. The Supreme Court in Re : The Special Courts Bill, 1978 reported in (1979) 1 SCC 380 : AIR 1979 SC 478 considered in details the scheme of the Constitution and held as follows : --
"Our federal or quasi-federal Constitution provides by a copious written instrument for the setting up of a judiciary at the Union and the State levels. Article 124, which occurs in Chapter IV of the Constitution called "The union judiciary", provides for the establishment of the Supreme Court of India. Its powers and functions are defined in Article 32(2), Article 129, Article 131 to 140 and in Article 143 of the Constitution. Likewise, Article 214 provides, subject to Article 231, for the, establishment of a High Court for each State. Article 226 confers powers on the High Courts to issue certain writs while Article 227 confers upon them the power of superintendence over all courts subordinate to their appellate jurisdiction. These provisions show that the power of reviewing the constitutional validity of legislations is vested in the Supreme Court and the High Courts and in no other body. The British Parliament being supreme, no question can arise in England as regards the validity of laws passed by it. The position under our Constitution is fundamentally different because, the validity of law passed by the Indian Legislature has to be tested having regard to the scheme of distribution of legislative powers and on the anvil of other constitutional limitations like those contained in Article 13 of our Constitution. The right of the Indian judiciary to pronounce a legislation void if it conflicts with the Constitution is not merely a tacit assumption but is an express avowal of our Constitution. The principle is firmly and wisely embedded in our Constitution that the policy of law and the expediency of passing it are matters for the legislature to decide while interpretation of laws and questions regarding their validity fall within the exclusive advisory or adjudicatory functions of Courts."
6. Evidently, therefore, the right to Indian judiciary to pronounce a legislation void is in the Supreme Court or in the High Court; but the question that arises for consideration is as to whether a 'bill', which is yet to receive assent of the Governor can be challenged on the ground of it being unconstitutional in a High Court under Article 226 of the Constitution in other words, whether a 'bill' is a 'legislation' within the meaning of the provisions of the Constitution.
The answer to the aforementioned question is provided for in the judgment of Untwalia, J. in the case of Special Courts Bill (AIR 1979 SC 478) (supra) itself wherein it was held as follows : --
" But if in some it becomes expedient to do so, as in my opinion in the instant one it was so, I think it saves a lot of public time and money to remove any technical lacuna from the bill if the Government thinks that it can agree to do so. Of course, the bill by itself is not a law. It would be a law when passed by the Parliament. But even at the stage of the bill when opinion of this Court is asked for, it seems to me quite appropriate in a given case to make some suggestions and then to answer the reference on the footing of acceptance by the Government of such of the suggestions as have been accepted."
7. It is, therefore, evident that but for Article 143 of the Constitution, even the Supreme Court of India could not have considered the question as to whether a 'bill' which is yet to become an Act satisfies the requirement of the Constitution or would otherwise be constitutionally valid or not.
8. The Supreme Court further in Hoechst Pharmaceutical Ltd. v. State of Bihar, (AIR 1983 SC 1019) (supra) after taking into consideration in details the effect of Articles 199 and 200 of the Constitution held as follows: --
Paragraph 87 :-- "There was quite some discussion at the Bar as to whether the assent of the President is justiciable. It was submitted that since not only Sub-section (1) of Section 5 of the Act which provides for the levy of a surcharge on dealers having a gross turnover of Rs. five lakhs in a year but also Sub-section (3) thereof which interdicts that no such dealer shall be entitled to recover the amount of surcharge collected from him, are both relatable to Entry 54 of List II of the 7th Schedule, there was no occasion for the Governor to have referred the bill under Article 200 to the President for his assent It is somewhat strange that this argument should be advanced for the first time after a lapse of 30 years of inauguration of the Constitution. Immediately provocation for this argument appears to be an obiter dictum of Lord Diplock while delivering the judgment of the Judicial Committee in Teh Cheng Poh v. Public Prosecutor, Malaysia, (1980) AC 458 at p. 473, that "the courts are not powerless when there is a failure to exercise the power of revocation of a proclamation of emergency" issued by the ruler of Malaysia under Section 47(2) of the Internal Security Act. The ultimate decision of the Privy Council was that since by virtue of Section 47(2) of that Act the security area proclamation remained lawful until revoked by resolution of both Houses of Parliament or by the ruler. It could not be deemed to lapse because the conditions upon which the Ruler had exercised his discretion to make the proclamation were no longer in existence. That being so, the decision in Teh Cheng Poh's case, supra, is not an authority for the proposition that the assent of the President is justiciable nor can it be spelled out that the court can enquire into the reasons why the Bill was reserved by the Governor under Article 200 for the assent of the President nor whether the President applied his mind to the question whether there was repugnancy between the Bill reserved for his consideration and received his assent under Article 254(2)."
Paragraph 88 :- The constitutional position of a Governor is clearly defined. The Governor is made a component part of the legislature of a State under Article 168 because every bill passed by the State Legislature has to be reserved for the assent of the Governor under Article 200. Under that Article, the Governor can adopt one of the three courses, namely : (1) He may give his assent to it, in which case the bill becomes a law; or (2) He may except in the case of a 'Money-Bill' withhold his assent therefrom, in which case the Bill falls through unless the procedure indicated in the first proviso is followed i.e. return the Bill to the Assembly for consideration with a message; or (3) He may "on the advice of the Council of Ministers" reserve the Bill for the consideration of the President in which case the President will adopt the procedure laid down in Article 201. The first proviso to Article 200 deals with a situation where the Governor is bound to give his assent and the Bill is reconsidered and passed by the Assembly. The second proviso to that Article makes the reservation for the consideration of the President obligatory where the Bill would, "if it becomes law, derogate from the powers of the High Court". Under Article 201, when a Bill is reserved by the Governor for the consideration of the President, the President can adopt two courses, namely; (1) He may give his assent to it in which case again the Bill becomes a law; or (2) He may except where the Bill is not a 'Money-Bill', direct the Governor to return the Bill to the House or, as the case may be, the Houses of the Legislature of the State together with such message as is mentioned in the first proviso to Article 200. When a Bill is so reserved by the President, the House or Houses shall reconsider it accordingly within a period of six months from the date of receipt of such message and if it is again passed by the House or Houses with or without amendment it shall be presented again to the President for his consideration. Thus, it is clear that a Bill passed by the State Assembly may become law if the Governor gives h is assent to it or if, having been reserved by the Governor for the consideration of the President, it is assented to by the President."
Paragraph 89 :-- There is no provision in the Constitution which lays down that a Bill which has been assented to by the President would be ineffective as an Act if there was no compelling necessity for the Governor to reserve it for the assent of the President A Bill which attracts Article 254(2) or Article 304(b) where it is introduced or moved in the Legislative Assembly of a State without the previous sanction of the President or which attracted Article 31(3) as it was then in force, or falling under the second proviso to Article 200 has necessarily to be reserved for the consideration of the President. There may also be a Bill passed by the State Legislature where there may be a genuine doubt about the applicability of any of the provisions of the Constitution which require the assent of the President to be given to it in order that it may be effective as an Act. In such a case, it is for the Governor to exercise his discretion and to decide whether he should assent to the Bill or should reserve it for consideration of the President to avoid any future complication. Even if it ultimately turns out that there was no necessity for the Governor to have reserved a Bill for the consideration of the President, still he having done so and obtained the assent of the President the Act so passed cannot be held to be unconstitutional on the ground of want of proper assent, This aspect of the matter, as the law now stands, is not open to scrutiny by the Courts. In the instant case, Financial Bill which ultimately became the Act in question was a consolidating Act relating to different subjects and perhaps the Governor felt that it was necessary to reserve it for the assent of the President. We have no hesitation in holding that the assent of the President is not justiciable, and we cannot spell out any infirmity arising out of his decision to give such assent."
(Underlining is mine).
9. Evidently, therefore, even the question as to whether Governor should give his assent to the Bill or not take recourse to one or other procedures laid down under Article 200 of the Constitution is beyond the judicial power of this Court.
10. The petitioner has relied upon the decision of U. P. State Electricity Board v. Hari Shanker Jain, AIR 1979 SC 65 and Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 which in my opinion have no relevance to the aforementioned question.
In U. P. State Electricity Board v. Hari Shanker Jain (supra) the Supreme Court was considering the effect of a certified Standing Order framed under Industrial Employment (Standing Orders) Act, 1946 (Act 20 of 1946) known as the office regulations framed under Section 79C of the Electricity (Supply) Act, 1948. The Standing Order framed under Industrial Employment (Standing Orders) Act, 1946, evidently has the force of law and thus a law.
In my opinion, the decision in Kesavananda Bharatr v. State of Kerala (supra) has also no application in the facts and circumstances of this case.
11. So far as the submissions made on behalf of the petitioner to the effect that the opinion given by the Supreme Court under Article 143 of the Constitution is also a 'law' within the meaning of Article 141 thereof, is not free from doubt. However, it goes without saying that even such an opinion carries a great weight. It will be useful, in this connection, to refer to the following passage from the decision of the Supreme Court in Re : The Special Courts Bill, 1978 (1979) 1 SCC 380 : (AIR 1979 SC 478) :--
"There was some discussion before us on the question as to whether the opinion rendered by this Court in the exercise of its advisory jurisdiction under Article 143(1) of the Constitution is binding as law declared by this Court within the meaning of Article 141 of the Constitution. The question may have to be considered more fully on a future occasion but we do hope that the time which has been spent in determining the questions arising in this reference shall not have been spent in vain. In the cases of Estate Duty Bill (AIR 1944 FC 73) (supra), U. P. Legislative Assembly (AIR 1965 SC 745) (supra) and St. Xaviers College, (AIR 1974 SC 1389) the view was expressed that advisory opinions do not have the binding force of law. In Attorney-General for Ontario v. Attorney-General for Canada, (1972 AC 571). It was even said by the Privy Council that the opinions expressed by the court in its advisory jurisdiction "Will have no more effect than the opinions of the law officers". On the other hand, the High Court of Calcutta in Ram Kishore Sen v. Union of India (AIR 1965 Cal 282) and the High Court of Gujarat in Chhabiladas Mehta v. Legislative Assembly, Gurajat State ((1970) 2 Guj LR 729), have taken the view that the opinion rendered by the Supreme Court under Article 143 is a law declared by it within the meaning of Article 141. In Province of Madras v. Boddu Paidanna (AIR 1942 FC 33) the Federal Court discussed the opinion rendered by it in the Central Provinces case (AIR 1939 FC 1) in the same manner as one discusses a binding judgment. We are inclined to the view that though it is always open to this Court to re-examine the question already decided by it and to overrule, if necessary, the view earlier taken by it, in so far as all other courts in the territory of India are concerned they ought to be bound by the view expressed by this Court even in the exercise of its advisory jurisdiction under Article 143(1) of the Constitution. We would also like to draw attention to the observations made by Raj, C.J., in St. Xaviers College (AIR 1974 SC 1389) (supra) that even if the opinion given in the exercise of advisory jurisdiction may not be binding, it is entitled to great weight. It would be strange that a decision given by this Court on a question of law in a dispute between two private parties should be binding on all courts in this country but the advisory opinion should bind no one at all, even if, as in the instant case, it is given after issuing notice to all interested parties, after hearing everyone concerned who desired to be heard, and after a full consideration of the questions raised in the reference. Almost everything that could possibly be urged in favour of and against the Bill was urged before us and to think that our opinion is an exercise in futility is deeply frustrating. While saying this, we are not unmindful of the view expressed by an eminent writer that although the advisory opinion given by the Supreme Court has high persuasive authority, it is not law declared by it within the meaning of Article 141. (See Constitutional Law of India by H.M. Seervai, 2nd Edition, Vol. II, page 1415, para 25.68)."
12. Taking into consideration all these aspects of the matter, I am of the view that this Court has no jurisdiction to declare a 'bill' which is yet to be received the assent of the Governor as ultra vires and unconstitutional in exercise of its power conferred upon it under Article 226 of the Constitution as 'bill' is not law. However, it is also pertinent to note here that the petitioner even has not annexed a copy of the 'bill' with this writ petition so as to warrant any discussion on merit thereof in the light of the submissions made in this writ petition.
13. In the result, this writ petition is dismissed but without any order as to costs.