# BABURAO ALIAS P.B. SAMANT v. UNION OF INDIA AND ORS

- **Citation:** [1988] 2 S.C.R. 431
- **Court:** Supreme Court of India
- **Decided:** 1987-12-17
- **Case number:** Writ Petition No. 63 of 1977
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/baburao-alias-p-b-samant-v-union-of-india-and-ors-9845
- **Pages:** 25

## Headnote

BABURAO ALIAS P.B. SAMANT
A
v.
UNION OF INDIA AND ORS.
DECEMBER 17, 1987
[E.S. VENKATARAMIAH AND K.N SINGH, JJ.l
B
Constitution of India, 1950: Articles 83, 118, 352, 353, 364 and
366-Proc/amations of Emergency dated December 3, 1971 and June
~
25, 1975-Whether ultra vires-Publishing of Proclamations in Official
Gazette-Whether a mode of publication.
Rules of Procedure and Conduct of Business in Lok Sabha:
c
Rules 260, 379 and 382-Non-publication of resolutions-Whether
resolutions ineffective-Publication in Parliamentary Debates even
after delay-Adequate publication.
House of the People (Extension of Duration) Act, 1976: Whether D
ultra vires.
Finance Act, 1976: Validity of.
Indian Evidence Act, 1872: S. 57-Proceedings of ParliamentCourt to take judicial notice.
E
The petitioner, an assessee under the Income Tax Act and Wealth
Tax Act during the assessment year 1976-77 and liable to pay income
f
tax and wealth tax in accordance with the rates prescribed by the
Finance Act, 1976, which was passed by the Lok Sabha during its
extended period under the provisions of the House of the People (ExtenF
sion of duration) Act, 1976, filed a writ petition before this Court,
challenging the vires of the two Proclamations of Emergency issued by
the President on 3.12.1971 and 26.6.1975 and also of the House of the
People (Extension of Duration) Act, 1976 and the Finance Act, 1976
contending that the duration of the House of People would have been
validly extended only when a Proclamation of Emergency was in force
G
under the proviso to cl. (2) of Art. 83 of the Constitution and since the
two Proclamations of Emergency in question were either ultra vires the
Constitution or had ceased to be in operation by the time the House of
the People (Extension of Duration) Act, 1976 was passed by Parliament,
that Act had no effect and, consequently all Acts passed by the House of
the People during the extended period, including the Finance Act, 1976
H
431
432
'SUPREME COURT REPORTS
[ 1988] 2 S.C.R.
A were ultra vires the Constitution, and that even though the said proclamations had been validly issued, the proclamation dated 3rd December,
1971 and 25th June, 1975 had ceased to be in operation on 3rd
February, 1972 and 26th August, 1975 respectively because the Resolutions passed by the two Houses of Parliament approving the said ProclamaB
tions of Emergency as required by cl. (2) of Art. 352 of the Constitution
as it stood during the relevant time had not been published in the
Official Gazette of the Government of India.
Tire petition was opposed by the respondent-Union of India contending that the two Proclamations had been duly issued by the President and approved by the Resolutions of the two Houses of Parliament
C
as required by law and that actually the Proclamations of 3rd December
1971 and June 25, 1975 had been revoked by the Vice-President acting
as the President by the Proclamations dated 27th March, 1977 and 2 lst
March, 1977 respectively, that in the month of February, 1976 when the
House of the People (Extension of Duration) Act, 1976 was passed by
D Parliament both the Proclamations of emergency were in force and,
therefore, Parliament was entitled to extend the period of the House of
the People for a period not exceeding one year at a time, that the
Finance Act, 1976 passed duly in the period so extended had been,
ther~fore, validly passed and that publication of the Resolutions was not
necessary and, in any event, since they had been published in the Lok
Sabha and Rajya Sabha Debates which were published under the
E
F
authority of the Speaker of the House of the People and the Chairman of
the Rajya Sabha respectively, the Proclamations of Emergency
remained in force until they were duly revoked.
Dismissing the writ petition,
HELD: 1. The two Proclamations of Emergency were kept in
force by virtue of the resolutions passed by the Houses of Parliament
until they were duly revoked by the two Proclamations which were
issued by the Vice-Presi

## Text

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BABURAO ALIAS P.B. SAMANT
A
v.
UNION OF INDIA AND ORS.
DECEMBER 17, 1987
[E.S. VENKATARAMIAH AND K.N SINGH, JJ.l
B
Constitution of India, 1950: Articles 83, 118, 352, 353, 364 and
366-Proc/amations of Emergency dated December 3, 1971 and June
~
25, 1975-Whether ultra vires-Publishing of Proclamations in Official
Gazette-Whether a mode of publication.
Rules of Procedure and Conduct of Business in Lok Sabha:
c
Rules 260, 379 and 382-Non-publication of resolutions-Whether
resolutions ineffective-Publication in Parliamentary Debates even
after delay-Adequate publication.
House of the People (Extension of Duration) Act, 1976: Whether D
ultra vires.
Finance Act, 1976: Validity of.
Indian Evidence Act, 1872: S. 57-Proceedings of ParliamentCourt to take judicial notice.
E
The petitioner, an assessee under the Income Tax Act and Wealth
Tax Act during the assessment year 1976-77 and liable to pay income
f
tax and wealth tax in accordance with the rates prescribed by the
Finance Act, 1976, which was passed by the Lok Sabha during its
extended period under the provisions of the House of the People (ExtenF
sion of duration) Act, 1976, filed a writ petition before this Court,
challenging the vires of the two Proclamations of Emergency issued by
the President on 3.12.1971 and 26.6.1975 and also of the House of the
People (Extension of Duration) Act, 1976 and the Finance Act, 1976
contending that the duration of the House of People would have been
validly extended only when a Proclamation of Emergency was in force
G
under the proviso to cl. (2) of Art. 83 of the Constitution and since the
two Proclamations of Emergency in question were either ultra vires the
Constitution or had ceased to be in operation by the time the House of
the People (Extension of Duration) Act, 1976 was passed by Parliament,
that Act had no effect and, consequently all Acts passed by the House of
the People during the extended period, including the Finance Act, 1976
H
431
432
'SUPREME COURT REPORTS
[ 1988] 2 S.C.R.
A were ultra vires the Constitution, and that even though the said proclamations had been validly issued, the proclamation dated 3rd December,
1971 and 25th June, 1975 had ceased to be in operation on 3rd
February, 1972 and 26th August, 1975 respectively because the Resolutions passed by the two Houses of Parliament approving the said ProclamaB
tions of Emergency as required by cl. (2) of Art. 352 of the Constitution
as it stood during the relevant time had not been published in the
Official Gazette of the Government of India.
Tire petition was opposed by the respondent-Union of India contending that the two Proclamations had been duly issued by the President and approved by the Resolutions of the two Houses of Parliament
C
as required by law and that actually the Proclamations of 3rd December
1971 and June 25, 1975 had been revoked by the Vice-President acting
as the President by the Proclamations dated 27th March, 1977 and 2 lst
March, 1977 respectively, that in the month of February, 1976 when the
House of the People (Extension of Duration) Act, 1976 was passed by
D Parliament both the Proclamations of emergency were in force and,
therefore, Parliament was entitled to extend the period of the House of
the People for a period not exceeding one year at a time, that the
Finance Act, 1976 passed duly in the period so extended had been,
ther~fore, validly passed and that publication of the Resolutions was not
necessary and, in any event, since they had been published in the Lok
Sabha and Rajya Sabha Debates which were published under the
E
F
authority of the Speaker of the House of the People and the Chairman of
the Rajya Sabha respectively, the Proclamations of Emergency
remained in force until they were duly revoked.
Dismissing the writ petition,
HELD: 1. The two Proclamations of Emergency were kept in
force by virtue of the resolutions passed by the Houses of Parliament
until they were duly revoked by the two Proclamations which were
issued by the Vice-President acting as President of India in the year
1977. Since the two Proclamations of Emergency were in force when the
G House of the People (Extension of Duration) Act, 1976 was passed, its
validity cannot be questioned. [455D·El
H
The Lok Sabha passed the Finance Act, 1976 during the extended
period of its duration and, therefore, the validity of Finance Act, 1976
also cannot be questioned. [455E]
2. Article 352 of the Constitution does not prescribe that a
•.
'

434
SUPREME COURT REPORTS
(1988] 2 S.C.R.
A
3.4 The reports of the proceedings of Parliament and the State
Legislatures are widely circulated. The newspapers, radio and the television are also the other modern means which give publicity to all Acts
and Resolutions of Parliament and the Legislatures of the States. The
publication in the Parliamentary Debates, though after some short
delay is adequate publication of the resolutions of Parliament as there is
B no rule which requires that the resolutions should be published in the
Official Gazette. Hence, mere non-publication of the resolutions
approving the Proclamations of Emergency in the Official Gazette did
not make them ineffective. [454G-H; 4SSA-B]
In the instant case, the resolutions of the Lok Sabha, and the
C Rajya Sabha approving the two resolutions have been duly published in
the official reports of the two Houses. [ 4SSB-C I
I
Waman Rao & Ors. Etc. Etc. v. Union of India & Ors., (1981] 2 ,
S.C.R. 1; Har/a v. The State of Rajasthan, (1952] S.C.R. 110; State of
~
Punjab v. Sat Pal Dang & Ors., (1969] 1 S.C.R. 478 and Niharendu
D Dutt Majumdarv. The King Emperor, (1942] F.C.R. 38, referred to.
ORIGINAL JURISDICTION: Writ Petition No. 63 of 1977.
(Under Article 32 of the Constitution of India).
E
Petitioner-in-person.
Kuldeep Singh, Additional Solicitor General, B.B. Ahuja, Ms.
A. Subhashini, Ms. J. Wad and C.V. Subba Rao for the Respondents.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. Shri Baburao alias P.B. Samant, the
F
petitioner herein, who has argued this case in person with great clarity
and precision ·has raised the following contentions in this petition.
(1) The Proclamation of Emergency issued on 3.12.1971 by the
President of India was either ultra vires the Constitution or had
ceased to be in operation on 4.2.1972.
G
~
(2) The Proclamation of Emergency dated 25.6.1975 issued by
the President of India on 26.6.1975 was either ultra vires the Jt,
Constitution or had ceased to be in operation on 26.8.1975;
(3) The House of the People (Extension of Duration) Act, 1976
H
(No. 30 of 1976) is ultra vires the Constitution; and
...
•
BABURAO v. U.0.1. (VENKATARAMIAH, J.]
435
(4) The Finance Act, 1976 (66 of 1976) is ultra vires the
A
Constitution.
Although the petitioner had also challenged section 13 of the
Constitution (42nd Amendment) Act, 1976 and clause (c) of section 3
of the Constitution (24th Amendment) Act, 1971 in the petition he did
not press these two contentions at the hearing of the petitiur
B
The petitioner was an assessee under the Inoome"tax Act and
Wealth Tax Act during the assessment year 1976-77 and was liable to
pay income-tax and Wealth tax in accordance with the rates prescribed
by the Finance Act, 1976 which was passed by the Lok Sabha during its
extended period which was extended under the provisions of the
C
House of the People (Extension of Duration) Act, 1976 (Act 30 of
1976), after the expiry of five years from the date appointed for its first
meeting. The contention of the petitioner is that the duration of the
House of the People could have been validly extended only when a
Proclamation of Emergency was in force under the proviso to clause
(2) of Article 83 of the Constitution and since the two Proclamations of
D
Emergency dated 3rd December, 1971and25th June, 1975 were either
ultra vires the Constitution or had ceased to be in operation by the
time the House of the People (Extension of Duration) Act, 1976 (Act
30 of 1976) was passed by Parliament, the House of the People (Extension of Duration) Act, 1976 (Act 30 of 1976) had no effect and consequently all Acts passed by the House of the People during the
E
extended period including the Finance Act, 1976 were ultra vires the
Constitution. He further submitted that even though the said Proclamations had been validly issued, the Proclamation of Emergency dated
3rd December, 1971 had ceased to be in operation on 3rd February,
1972 and the Proclamation of emergency dated 25th June, 1975 which
was issued on 26th June, 1975 had ceased to be in operation by 26th
F
August, 1975 because the resolutions passed by the two Houses of
Parliament approving the said Proclamations of Emergency as
required by clause (2) of Article 352 of the Constitution as it stood
during the relevant time had not been published in the Official Gazette
of the Government of India.
The petition is opposed by the Union of India. The Union of
India has contended that the two Proclamations of Emergency had
been duly issued by the President and approved by the resolutions of
two Houses of Parliament as required by law and that actually the
proclamation of Emergency of 3rd December, 1971 had been revoked
G
by the Vice-President acting as the President by the Proclamation
H
436
SUPREME COURT REPORTS
[1988] 2 S.C.R.
A dated 27th March, 1977 and the Proclamation of Emergency dated
June 25th, 1975 had been revoked by him by the Proclamation dated
21st March, 1977. In the month of February, 1976 when the House of
the People (Extension of Duration )Act, 1976 (Act 30 of 1976) was
passed by Parliament both the Proclamations of Emergency were in
force and therefore Parliament was entitled to extend the period of the
B
House of the People for a period not exceeding one year at a time. The
Finance Act, 1976 passed during the period so extended had been,
therefore, validly passed. It was further pleaded by the Union of India
that the publication of the resolutions was not necessary and that in
any event since they had been published in the Lok Sabha Debates and
the Rajya Sabha Debates which were published under the authority of
C
the Speaker of the House of the People and the Chairman of the Rajya
Sabha respectively the Proclamations of Emergency remained in force
until they were duly revoked.
D
E
F
G
H
Article 352 of the Constitution as it stood at the relevant time
read as follows:
"352 (1) If the President is satisfied that a grave
emergency exists whereby the security of India or of any
part of the territory thereof is threatened, whether by war
or external aggression or internal disturbance, he may, by
Proclamation, make a declaration to that effect.
(2) A Proclamation issued under clause ( 1)-
(a) may be revoked by a subsequent Proclamation;
(b) shall be laid before each House of Parliament;
( c) shall cease to operate at the expiration of two months
unless before .the expiration of that period it has been
approved by resolution of both Houses of Parliament:
Provided that if any such Proclamation is issued at a
time when the House of the People has been dissolved or
the dissolution of the House of the People takes place
during the period of two months referred to in sub-clause
(c), and if a resolution approving the Proclamation has
been passed by the council of States, but no resolution with
respect to such Proclamation has been passed by the House
of the People before the expiration of that period, the
...
•
'
I
BABURAO v. U.0.1. IVENKATARAMIAH, J.)
437
Proclamation shall cease to operate at the expiration of
A
thirty days from the date on which the House of the People
first sits after its reconstitution unless before the expiration
of the said period of thirty days a resolution approving the
Proclamation has been also passed by the House of People.
(3) A Proclamation of Emergency declaring that the
security of India or of any part of the territory thereof is
threatened by war or by external aggression or by internal
disturbance may be made before the actual occurrence of
war or of any such aggression or disturbance if the President is satisfied that there is imminent danger thereof."
B
c
Clause (1) of Article 352 of the Constitution provided that if the
President was satisfied that a grave emergency existed whereby the
security of India or of any part of the territory thereof was threatened
whether by war or external aggression or internal disturbance, he
might by Proclamation make a declaration to that effect. The ProclaD
mation issued under clause (l) of Article 352 of the Constitution could
be revoked by a subsequent Proclamation. It was required to be laid
before each House of Parliament and that the Proclamation would
cease to operate at the expiration of two months unless before the
expiration of that period it was approved by resolutions of both
Houses of Parliament.
On December 3, 1971 when India was attacked by Pakistan \lie
President issued a Proclamation under clause (1) of Article 352 as he
was satisfied that the security of India had been threatened by external
aggression. The said Proclamation was published in the Official
Gazette on the same date. It reads thus:
MINISTRY OF HOME AFFAIRS
NOTIFICATION
''
New Delhi, 3rd December, 1971
C.S.R. 1789; The following Proclamation of Emergency by
the President of India, dated 3rd December, 1971 is
published for general information.
Proclamation of Emergency
E
F
G
H
A
B
c
D
E
438
SUPREME COURT REPORTS
[ 1988] 2 S.C.R.
In exercise of powers conferred by clause ( 1) of Article 352 of the Constitution, I, V.V. Girl, President ot
India, by this Proclamation declare that a grave emergency
exists whereby the security of India is threatened by external aggression.
New Delhi,
3rd December, 1971
sd/-
V.V. Girl
President
The said Proclamation was laid before both the Houses of Parliament on the 4th December, 1971. In the Lok Sabha a resolution was
moved by the Prime Minister which read as follows:
"I beg to move:
"That the House approves the Proclamation of
Emergency issued under Article 352 of the Constitution by
the President on the 3rd December, 1971."
MR SPEAKER : Resolution moved:
y
F
"That the House approves the Proclamation of t
Emergency issued under Article 352 of the Constitution by
.
the President on the 3rd December, 1971." (See Lok Sabha .
Debates dated December 4, 1971Column4).
Aft~r some discussion in the House the resolution was carri1
unanimously and it was adopted. (See Lok Sabha Debates dat(
G
December 4, 1971 column 37). Similarly a resolution was adopted I
the Rajya Sabha approving the said Proclamation of Emergency. (~
Rajya Sabha Debates dated December 4,1971 column 46). The &atd
resolutions of the Houses of Parliament were no doubt not published
in the Official Gazette. The above Proclamation of Emergency was
revoked by the Vice-President acting as President on the 27th March,
H 1977 by a Proclamation which read thus:
~·
BABURAO v. U.0.1. (VENKATARAMIAH, J.)
439
"MINSTRY OF HOME AFFAIRS
NOTIFICATION
New Delhi, the 27th March, 1977
G.S.R. 132 (E)-The following Proclamation made by the
Vice-President acting as President of India is published for
general information:
PROCLAMATION
A
B
In exercise of the powers conferred by sub-clause (a)
C
of clause (2) of Article 352 of the Constitution, I, B_asappa
Danappa Jatti, Vice-President acting as President of India,
hereby revoke the Proclamation of Emergency issued
under clause (1) of that article on the 3rd of December.
1971 and published with the notification of the Govern0
ment of India in the Ministry of Home Affairs No. G.S.R.
1789, dated the 3rd December, 1971.
New Delhi,
the 27th March, 1977
sd/-
8.D. Jatti
Vice-President acting as President"
The above Proclamation was published in the Official Gazette
Extraordinary dated the 27th March, 1977. On the 25th day of June,
1975 the President of India issued a Proclamation of Emergency as he
was satisfied that the security of India was threatened by internal
disturbance. That Proclamation was published under a notification
dated 26th June, 1975 in the Official Gazette. It read thus:
"MINISTRY OF HOME AFFAIRS
NOTIFICATION
New Delhi, the 26th June, 1975
G.S.R. 353 (B)
E
F
G
H
A
B
c
D
440
SUPREME COURT RFPORTS
l 1988] .2 S.C.R.
The following Proclamation of Emergency by the
President of India, dated the 25th June, 1975, is published
for general information:
PROCLAMATION OF EMERGENCY
In exercise of the powers conferred by clause ( lj of
Article 352 of the Constitution, I, Fakkhruddin Ali Ahmed,
President of India, by this Proclamation declare that a
grave emergency exists whereby the security of India is
threatened by internal disturbance.
New Delhi,
the 26th June, 1975
No.11/16013/1/75-S & P (D-11)
S.L. Khurana, Secy."
F.A.Ahmed,
President
A resolution was moved in the Lok Sabha on July 21, 1975 seeking the approval of the Lok Sabha to the Proclamation of Emergency
dated the 25th June, 1975 and also the order of the President dated
29th June, 1975 made in exercise of the powers conferred by subclause (b) of clause ( 4) of Article 352 of the Constitution (as it stood
E then) as applying to the State of Jammu and Kashmir. The Proclamation of Emergency was also laid on the table of the Lok Sabha. That
resolution was adopted by the Lok Sabha on July 23, 1975. (See Lok
Sabha Debates dated July 23, 1975, column 427). A resolution was
moved see){ing the approval of the said Proclamation of Emergency on
2 lst July, 1975 in the Rajya Sabha and it was adopted by the Rajya
F Sabha on 22nd July, 1975. (See Rajya Sabha Debates dated July 22,
1975 column 124). The resolution of the Lok Sabha and the resolution
of the Rajya Sabha approving the Proclamation dated 25th June, 1975
were not published in the Official Gazette. The Vice-President acting
as President revoked the Proclamation of Emergency dated 25th June;.
1975 by another Proclamation dated 2lst March, 1977 which reads
G thus:
H
"MINISTRY OF HOME AFFAIRS
NOTIFICATION
xxxxxxxxxx
G.S.R. 117/E-The following Proclamation made by the
•
"'.
BABURAO v. U.0.1. [VENKATARAMIAH, J.)
441
Vice-President acting as President of India is published for
A
general information:
PROCLAMATION
In exercise of the powers conferred by sub-clause (a)
8
of clause (2) of article 352 of the Constitution, I, Basappa
Danappa Jatti, Vice-President acting as President of India,
hereby revoke the Proclamation of Emergency issued under clause ( 1) of that article on the 25th June, 1975 and
published with the notification of the Govt. of India in the
Ministry of Home Affairs No. GSR 353(b) dated the 26th
June, 1975.
C
New Delhi,
B.D. Jatti
Vice-President acting as President
'
the 2 lst March, 1977 ."
Article 83(2) of the Constitution during the relevant time, that is,
before the 42nd Amendment Act of 1976 read as follows:
"83. ( 1) ...................................... .
(2) The House of the People, unless sooner dissolved, shall continue for five years from the ·date appointed
for its first meeting and no longer and the expiration of the
said period of five years shall operate as a dissolution of the
House:
Provided that the said period may, while a Proclamation, of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time
and not extending in any case beyond a period of six
months after the proclamation has ceased to operate."
As the period of five years from the date appointed for its first
meeting of the then existing House of the People was about to come to
a close Parliament enacted the House of the People (Extension of
Duration) Act, 1976 (Act 30 of 1976) which received the assent of the
President on the 16th February, 1976. Section 2 of that Act read thus:
D
E
F
G
H
A
B
c
442
SUPREME COURT REPORTS
I 1988] 2 S.C.R.
"2. Extension of duration of the present House of
the People. The period of five years (being the period for
which the House of the People may, under clause (2) of
article 83 of the Constitution, continue from the date
appointed for its first meeting) in relation to the present
House of the People shall, while the Proclamation of
Emergency issued on the 3rd day of December, 1971 and
on the 25th day of June, 1975 are both in operation, be
extended for a period of one year:
Provided that if both or either of the said Proclamations cease or ceases to operate before the expiration of the
said period of one year.
The Finance Act, 1976 was passed by the Lok Sabha after its
period was extended as stated above and by the Rajya Sabha in the
early part of the year 1976 and it received the assent of the President
on the 27th May, 1976. Aggrieved by the levy of the rates of income0
tax and of wealth tax as provided by the Finance Act, 1976 the
petitioner has filed this writ petition.
Two important questions which arise for consideration in this
case are (i) whether the two Proclamations of Emergency were validly
issued or not? and (ii) whether each of the said Proclamations had
E ceased to be in force at the expiration of two months from the date on
which each of them was issued as the resolutions of the Houses of
Parliament approving each of them had not been published in the
Official Gazette. In Waman Rao & Ors. Etc. Etc. v. Union of India &
y
tional Amendments had been questioned on similar grounds. This
Ors., [1981] 2 S.C.R. 1 the validity of the 40th and the 42nd Constitu-
-
F Court while it left open the question whether the issuance of the
Proclamations of emergency raised a justiciable issue, on the basis of
the material placed before it came to the conclusion that they had been
duly issued. Chandrachud, CJ observed in the course of his judgment
in Waman Rao's case (supra) at page 45 thus:
G
H
"Thus, in the first place, we are not disposed to decide the question as to whether the issuance of a proclamation of emergency raises a justiciable issue. Secondly, assuming it does, it is not possible in the present state of
record to answer that issue one way or the other. And,
lastly, whether there was justification for continuing the
state of emergency after the cessation of hostilities with
t
BABURAO v. U.0.1. (VENKATARAMIAH, J.]
443
Pakistan is a matter on which we find ourselves illequipped.
Coming to the two Acts of 1976 by which the life of
the Lok Sabha was extended, section 2 of the first of these
Acts, 30 of 1976, which was passed on February 16, 1976,
provided that the period of five years in relation to the
then House of the People shall be extended for a period of
one year "while the Proclamation of Emergency issued on
the 3rd day of December, 1971 and on the 25th day of June,
1975, are both in operation." The second Act of Extension
continues to contain the same provision. It is contended
by the petitioners that the proclamation of December 3,
1971 should have been revoked long before February 16,
1976 and that the proclamation of June 25, 1975 was
wholly uncalled for and was malajide. Since the pre-condition on which the life of the Parliament was extended is
A
B
c
not satisfied, the Act, it is contended, is ineffective to
extend the life of the Parliament. We find it difficult to
D
accept this contention. Both the proclamations of emergency were in fact in operation on February 16, 1976 when
the first Act was passed as also on November 24, 1976 when
the second Act, 1Q9 of 1976, was passed. It is not possible
for us to accept the submission of the petitioners that for
the various reasons assigned by them, the first proclam_aE
tion must be deemed not to be in existence and that the
second proclamation must be held to have been issued ma/a
fide and therefore non-est. The evidence produced before
us is insufficient for recording a decision on either of these
matters. It must follow that the two Acts by which the
duration of the Lok Sabha was extended are valid and lawF
ful. The 40th and the 42nd Constitutional Amendments
cannot, therefore, be struck down on the ground that they
were passed by a Lok Sabha which was not lawfully in
existence."
-><
The petitioner, however, contended before us that the above
G
decision had been rendered on insufficient material and that if it was
~ open to any person to place before this Court sufficient material the
Court should reconsider the question of the validity of the Proclamations of Emergency. Assuming that it is possible for this Court to
reopen the case, the petitioner has not been able to place before this
Court any new material on the basis of which it is possible for us to
H
444
SUPREME COURT REPORTS
[ 19881 2 S.C.R.
A conclude that the Proclamations had been issued by the President
witho\jt applying his mind or ma/a fide. We are, therefore, bound by
the decision of this Court in Waman Rao's case (supra) upholding the
validity of the two Proclamations of Emergency. The only other question which requires to be considered is whether on account of the
non-publication in the Official Gazette of the resolutions of the two
B House$ of Parliament approving the two Proclamations of Emergency,
the Proclamations came to an end on the expiry of the period of two
months from the date of issue thereof.
The fact that the two Proclamations had been approved by the
resolutions passed by both the Houses of Parliament as set out earlier
C in the course of this judgment is not disputed by the petitioner. What
the petitioner, however, contended before the Court was that the
resolutions which were almost legislative in character and which had
the effect of converting the federal State into almost an unitary State
by conferring large powers on the Central Executive and Parliament as
provided in Article 353 and in some other provisions of the ConstituD tion should have been given wide publicity so that people who were
affected thereby could if they did not feel satisfied about the need for
continuing the state of emergency either protest or make appropriate
representation. The petitioner urged that the democratic nature of the
Constitution which had been highlighted in its Preamble required that
wide publicity should be given to the resolutions of the two Houses of
E Parliament approving any Proclamation of Emergency and that the
only means available for giving such publicity was the publication of
resolutions in the Official Gazette in which the Proclamations of
Emergency had been published. In support of his argument the
petitioner relied upon several Proclamations issued in India right from
the days of Queen Victoria on many important occasions which had
F been widely published in the Official Gazette and by other means. He
also drew our attention to the Proclamations issued elsewhere which
had been given similar publicity through the Official Gazettes of those
countries. The petitioner's argument in a nut shell was that the resolutions passed by Parliament which had the effect of continuing the
duration of emergency being of the same character as Proclamations
G themselves, should have been published in the Official Gazette and in
the absence of such publication the Proclamations of Emergency
should be deemed to have become ineffective on the expiry of the
period of two months from the issue thereof.
Article 352 of the Constitution does not prescribe that a ProclaH matioQ of Emergency should be published in the Offidal Gazette. The
)I
l
BABURAO v. U.0.1. [VENKATARAMIAH, J.]
445
"Proclamation of Emergency" is defined in Article 366( 18) thus:
"366. ( 18) "Proclamation of emergency" means a
Proclamation issued under clause ( 1) of Article 352."
Article 366( 19) of the Constitution defines a "public notificaA
~~' iliIB:
B
"366.(19) "public notification" means a notification
in the Gazette of India, or, as the case may be, the Official
Gazette of a State."
Wherever the Constitution expressly requires a certain notificaC
tion should be published in the Official Gazette it has stated that the
said notification shall be published in the form of a public notification.
By way of an illustration, reference may be made to Article 364( 1) of
the Constitution which reads thus:
"364.(1) Notwithstanding anything in this ConstituD
tion, the President may by public notification direct that as
from such date as may be specified in the notification-
(a) any law made by Parliament or by the Legislature
of a State shall not apply· to any major port or
aerodrome or shall apply thereto subject to such
E
exceptions or modifications as may be specified in the
notification, or
(b) any existing law shall cease to have effect In any
major port or aerodrome except as respects things
done or omitted to be done before the said date, or
F
shall in its application to such port or aerodrome have
effect subject to such exceptions or modifications as
may be specified in the notification ............ .
,,
Thus it is seen that any public notification issued under Article G
364(1) of the Constitution has to be published in the Official Gazette
as provided by Article 366(19) of the Constitution. A Proclamation of
Emergency being a very important event affecting public life has also
to be published in any manner known to the modem world and the
publication in the Official Gazette is one such mode. We are of the
view that if the Constitution requires that a particular mode of publicaH
446
SUPREME COURT REPORTS
( 1988] 2 S.C.R.
A tion is necessary then such mode must be followed but if there is no
mode of publication prescribed by the Constitution then it must be
considered that the Constitution has left the method of publication to
the authority issuing the proclamation in order to make it known to the
members of the public. In the instant case the Proclamations of
Emergency have been published in the Official Gazette.
B
The petitioner contended that even though it was not expressly
provided that the resolutions passed by both the Houses of Parliament
should be published in the Official Gazette they should have been
published for the very same reason which compelled the Government
to publish the Proclamations in the Official Gazette. In the ConstituC tion and in the Rules of Procedure of the Houses of Parliament and of
the State Legislatures there are several provisions which !lrovide for
resolutions being passed by the Houses of Parliament or the Houses of
State Legislatures. They are among others (i) Article 123(2)(a)-
Disapproval of an ordinance; (ii) Article 169-Abolition or creation of
a Legislative Council; (iii) Article 213(2)(a)-Disapproval of an ordiD nance; (iv) Article 249-Resolution of the Council of States empowering Parliament to legislate with respect to any matter in a State List in
national interest; (v) Article 252-Resolutions of the Hoose or Houses ·
of State Legislatures of two or more States to enable Parliament to
legislate on a State subject or adoption of a law made under Article
252 by a State Legislature which had not requested Parliament to make
E it before it was passed by the Parliament ; (vi) Article 312-Resolution
passed by the Council of States creating a new All-India Service; (vii)
Article 315(2)-Resolutions of House or Houses of State Legislature
1 y
of two or more States to enable Parliament to provide a common
Public Service Commission to such States; (viii) Article 320(5)-
Amendment or repeal of Regulations made by the President or the
F Governor under the proviso to Article 320(3); (ix) original Article
352(2)(c) and the present Article 352(4)-Approval of Proclamations
of Emergency by the Houses of Parliament; (x) Article 356(3)-
Approval of Proclamation made under Article 356(1). (xi) Article
360(2)-Approval of the Proclamation of financial emergency by the
Houses of Parliament; (xii) Proviso to Article 368-Resolutions to be
G passed by the State Legislatures approving the constitutional amendments approved by Parliament; (xiii) Article 371A(l)(a)-Power of
Nagaland Legislative Assembly to adopt an Act of Parliament in
respect of certain matters; (xiv) Articles 61, 67(b), 90, 94, 101(4),
124(4), 148(1), 190(4) and 217(1)(b)-relate to removal of high constitutional dignitaries from office; (xv) Article 3--State Legislature
H expressing its views on the alteration of its boundaries of the State
1
BABURAO v. U.0.1. [VENKATARAM!AH, J.]
447
~
concerned; (xvi) Rule No. 234 to 239 of the Lok Sabha Rules of
A
Procedure and Conduct of Business-relating to modification of subordinate Legislation and (xvii) Privilege Motions before the Houses of
Parliament and the State Legislatures relating to punishment for contempt or removal from membership on account of highly unbecoming
conduct of members. In all these cases any resolution passed by the
concerned legislative body has far-reaching consequences. They are
B
not required to be published on the Official Gazette, even though in
some cases they are published, say, where a Central Jaw is adopted
under Article 252 or a member is removed on the ground of privilege
etc .. They would not be treated as ineffective merely because they are
not published in the Official Gazette. They are all however published
in the Reports of the Houses of Parliament and of the Houses of the c
~
State Legislature within a reasonable time.
The petitioner relied on the decision of this Court in Harla v. the
~
State of Rajasthan, [ 1952] S.C.R. 110 in support of his contention. In
that case the facts were these. The Council of Ministers appointed by
the Crown Representative for the government and administration of D
the Jaipur State passed a Resolution in 1923 purporting to enact a law
called the Jaipur Opium Act, but that law was neither promulgated or
published in the Gazette nor-made known to the public. The Jaipur
Laws Act, 1923, which was also passed by the Council and which came
t
into force on the Ist November, 1924, provided by section 3(b) that the
law to be administered by the court of the Jaipur State shall be ....... E
"(b )all the regulations now in force within the said territories and the
enactments and regulations that may hereafter be passed from time to
..
time by the State and published in Official Gazette." In 1938 the
\
Jaipur Opium Act was amended by adding a clause to the effect that
"it shall come into force from the Ist of September, 1924." This Court
held that the mere passing of the resolution of the Council without
F
tfurther publication or promulgation of the law was not sufficient to
make the law operative and the Jaipur Opium Act was not therefore a
valid law. It further held that the said Act was not saved by section
3(b) of the Jaipur Laws Act, 1923, as it was not a valid law in force on
the Ist November, 1924, and the mere addition of a clause in 1938 that
"'
it came into force from 1924 was of no use. In State of Punjab v. Sat Pal
G
l
Dang & Ors., [1969] 1 S.C.R. 478 one of the questions which arose for
consideration was whether the decision of the Governor proroguing
the Legislative Assembly was required to be communicated to each
and every member of the Legislature before it could become effective.
This Court held that Article 174(2) of the Constitution which enabled
the Governor to prorogue the Legislature did not indicate the manner
H
A
B
c
448
SUPREME COURT REPORTS
[ 1988] 2 S.C.R.
in which the Governor was to make such orders known and that he
could follow the well-established practice that such orders were ordinarily made known by a public notification which meant no more than
that they were notified in the Official Gazette of the State. There was
such a notification on the 11th March, 1968 and the prorogation must
be held to have taken effect from the date of publication. It was not
necessary that the order should reach each and every member individually before it could become effective. In so far as the Governor
was concerned it was open to him to publish a notification issued by
him under Article 174(2) of the Constitution in the Official Gazette of
the State and such publication was considered to be sufficient. But the
real question in this case is whether the resolutions passed by both the
Houses of Parliament approving the two Pr.oclamations of Emergency
had also to be published in the Official Gazette. We shall assume that
the resolutions of both the Houses of Parliament approving a Proclamation of Emergency should be given due publicity. We have already
shown above that in the Lok Sabha Debates and in the Rajya Sabha
Debates the proceedings relating to the resolutions in question had
I) been published in the usual course. Rule 379 of the Rules of Procedure
and Conduct of Business in Lok Sabha provides for the publication of
the full report of the proceedings of the Lok Sabha. It reads thus:
E
F
G
"379. The Secretary shall cause to be prepared a full
report of the proceedings of the House at each of its sittings
and shall, as soon as practicable, publish it in such form and
manner as the Speaker may, from time to time, direct.
Rule 382(1) of the said Rules provides for the printing and publication of Parliamentary papers. It reads thus:
"382. (1) The speaker may authorise printing, publication, distribution or sale of any paper, document or
report in connection with the business of the House or any
paper, document or report laid on the Table or presented
to the House or a Committee thereof.
(2) A paper, document or report printed, published,
distributed or sold in pursuance of sub-rule ( 1) shall be
deemed to have been printed,-published, distributed or
sold under the authority of the House within the meaning
of clause (2) of Article 105 of the Constitution."
H
Similarly in the Rules of Procedure and Conduct of Business of
BABURAO v. U.0.1. [VENKATARAMJAH, J.]
449
~
the Council of States (Rajya Sabha) Rule 260 provides thus:
A
-"·
"260. Preparation and publication of proceedings of
Council.-The Secretary-General shall cause to be prepared a full report of the proceedings of the Council at each
of its meetings and shall, as soon as practicable,.publish it
in such form and manner as the Chairman may, from time
B
to time, direct."
The Rules of Procedure of the both the Houses of Parliament are
made under Article 118( 1) of the Constitution which reads thus:
l
"118.(1) Each House of Parliament may make rules c
for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business.
~-
(2) Until rules are made under clause (1), the rules of
procedure and standing orders in force immediately before
the commencement of this Constitution with respect to the
D
Legislature of the Dominion of India shall have effect in
relation to Parliament subject to such modifications and
adaptations as may be made therein by the Chairman of the
Council of States or the Speaker of the House of the
r
People, as the case may be .................. "
E
Section 57 of the Indian Evidence Act, 1872 requires the Court
to take judicial notice of the facts stated therein. Clause (4) of section
.. ,
57 of the Indian Evidence Act, 1872 reads thus:
.,
~
"57. The Court shall take judicial notice of the folr
lowing facts:
F
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) The course of proceeding of Parliament of the United
Kingdom, of the Constituent Assembly of India of Parliament and of the Legislatures established under any laws for
the time being in force in a Province or in the State."
"
G
A
Section 56 of the Indian Evidence Act, 1872 provides that:
"56. No fact of which the court will take judicial
notice need be proved."
Section 74 of the Indian Evidence Act, 1872 refers to the docuH
450
SUPREME COURT REPORTS
[ 1988] 2 S.C.R.
A
ments which are considered to be public documents. Sub-clause (iii) of
clause (1) of section 74 reads thus:
B
c
D
E
"74 The following documents are public documents:
(1) documents forming the acts or records of the acts-(i)
........... (ii) .......... (iii) of public officers, legislative, judicial and executive of any part of India or of the
Commonwealth, or of a foreign country."
Section 78 of the Indian Evidence Act, 1872 lays down the mode .
of proof of certain public documents. The relevant part of it reads
thus:
"78.