G.B. Patnaik, J.
1. This writ application was listed before a larger Bench for Consideration of its admission, in view of the fact that an important question regarding the jurisdiction of this Court to entertain a petition to decide the validity of a proceeding in the Legislature of a State on the ground of alleged irregularity was raised. The petitioner, a Member of the Orissa Legislative Assembly, was served with notice (Annexure-1) along with the enclosures and was requested to offer his comments within seven days from the date of the receipt of the said notice. The enclosure was a petition by another member of the Legislative Assembly filed under the provisions of the Members of Orissa Legislative Assembly (Disqualification on ground of Defection) Rules, 1987 (hereinafter referred to as the 'Rules'). The petitioner did not offer any comments within the time as stipulated under Annexure-1. The petitioner then received another letter under Annexure-3, whereunder he was intimated that the Committee of Privileges had decided to examine him on matters arising out of a petition filed by Shri Satya Bhusan Sahu, a Member of the Orissa Legislative Assembly, against the petitioner. The petitioner then filed a petition before the Speaker as per Annexure-4 contending that the reference made by the Speaker to the Committee of Privileges was illegal and not in accordance with law, inasmuch as it was not in accordance with the procedure laid down in Rule 7 of the Rules and also contended that the petition filed by Shri Satya Bhusan Sahu was not maintainable. The petitioner asserts that to the best of his knowledge, the Speaker sent a note to opposite party No. 4, the Committee of Privileges, indicating that the issues raised by the petitioner could be gone into by the said opposite party No. 4 in the process of proceedings. The petitioner thereafter also appeared before opposite party No. 4 and contended that the application filed by Shri Sahu was not maintainable and the Committee had no jurisdiction to determine the issue. When the Committee continued its proceedings, the petitioner approached this Court for the following reliefs :--
(a) to quash Annexure-1 and the subsequent proceedings arising out of the saidAnnexure-1,
(b) to injunct opposite party No. 4 not to proceed with the enquiry; and
(c) to declare the Tenth Schedule of the Constitution as ultra vires.
2. Mr. Das, the learned Counsel for the petitioner, contends that the petition filed by Sri Sahu being addressed to the Secretary and not to the speaker as required under Rule 6 of the Rules is illegal and thus not maintainable. He further contends that the speaker had no jurisdiction to refer the matter to the Committee for making a preliminary enquiry under Sub-rule (4) of Rule 7 since the prior stages contained in Sub-rules (1), (2) and (3) have not been complied with. On the question of constitutional validity, Mr. Das urges that the Tenth Schedule of the Constitution violates the basic structure of the Constitution and is repugnant to Article 388 and ,therefore, must be struck down. On the question whether a petition is maintainable in view of Article 212 of the Constitution, the learned Counsel cites a number of authorities and strongly relies upon the decision of the Punjab and Haryana High Court in the case of Prakash Singh Badal v. Union of India, AIR 1987 Punj & Har 263 (Full Bench) and another decision of the Supreme Court in the case of In re, under Article 143, Constitution of India, AIR 1965 SC 745. 3. Paragraph 6 of the Tenth Schedule to the Constitution vests the power with the Speaker of the State Legislature to determine the question whether a member has become subject to disqualification Para 6(2) of the Tenth Schedule unequivocally states that a proceeding under para 6(1) shall be deemed to be a proceeding in the Legislature of the State within the meaning of Article 212. Article 212(1) of the Constitutions prohibits scrutiny by Court with regard to the validity of any proceeding in the Legislature of a State on the ground of irregularity of procedure. Article 212(2) makes an officer or member of the Legislature of a State immune from the jurisdiction of the Court on whom powers are vested by or under the Constitution in respect of exercise of those powers by him. In view of para 6(2) of the Tenth Schedule the impugned proceedings against the petitioner must be held to be a proceeding in the Legislature of the State, within the meaning of Article 212 of the Constitution and, therefore, the bar of jurisdiction contained in Article 212 of the Constitution would apply. Mr. Das appearing for the petitioner concedes that the speaker has the jurisdiction to decide the question of disqualification of a Member of the Legislative Assembly, but he contends that the infirmities pointed out by him make the proceeding illegal inasmuch as the procedure laid down by law has not been followed and, therefore, this Court will have jurisdiction to entertain and decide the matter. According to Mr. Das, the infirmities are that the petition was addressed to the Secretary and that the Speaker referred the matter to the Committee of Privileges without following the procedure contained in Rule 7(2) and (3) of the Rules. It is also not disputed by Mr. Das that though the application was addressed to the Secretary, yet it is the Speaker who is hi seisin of the matter and has referred the same to the Committee. In my considered opinion, the alleged infirmities are pertaining to the procedure in relation to a proceeding inside the Legislature of a State since the disqualification proceeding by operation of Constitutional provision has been deemed to be a proceeding inside the Legislature of a State. That being so, the Court will have no jurisdiction to go into the question of validity of such proceeding which is within the special jurisdiction of the Legislature itself. It would be sufficient for the purpose of this case to notice an observation of the Supreme Court in this connection in the case of M.S.M. Sharma v. Dr. Shree Krishna Sinha, AIR 1960 SC 1186, which is as follows (Paragraph 10) :--
'The validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had not been strictly followed. No Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business.'
(quoted from the headnote)
Further, the speaker who has jurisdiction to take a decision in the matter has not yet taken a final decision and has merely referred the matter to the Committee for enquiry and report on receipt of which he will take a final decision. The Committee also is yet to conclude its proceeding. In that view of the matter, as has been observed in M.S.M. Sharma's case (supra) by the Supreme Court the present application is yet premature.
4. Mr. Das appearing for the petitioner strongly relies upon the decision of the Supreme Court reported in AIR 1965 SC 745 (In re, under Article 143, Constitution of India), wherein a reference made by the President under Article 143 of the Constitution was answered by the Supreme Court. I am of the considered opinion that the aforesaid decision is of no assistance to the petitioner in the facts and circumstances of the present case. Further, Gajendragadkar, C.J., speaking for the majority in that case while answering the five questions referred to the Court by the President clearly stated (at p. 791) :--
'In rendering our answer to this question which is very broadly worded, we ought to preface our answer with the observation that the answer is confined to cases in relation to contempt alleged to have been committed by a citizen who is not a member of the. House outside the four walls of the legislative chamber ....'
So far as this Court is concerned, there are three earlier Bench decisions on the point, namely the High Court will have no jurisdiction to entertain an application under Article 226 to decide the legality of a proceeding in the Legislature of the State. (See Saradhakar Supakar v. Speaker, Orissa Legislative Assembly and Secretary, Orissa Legislature Assembly, AIR 1952 Orissa 234; Godavaris Misra v. Nandakisore Das, AIR 1953 Orissa 111; and Surendra Mohanty v. Nabakrishna Choudhury, AIR 1958 Orissa 168). In the premises, as aforesaid, and in view of my conclusion that the infirmities alleged by the petitioner can at best be said to be an irregularity of procedure and not a case of inherent lack of, jurisdiction or an illegality touching the jurisdiction, I am not inclined to entertain this application to decide the legality of the notices served on the petitioner in course of a proceeding initiated for disqualification of the petitioner under the Rules.
5. So far as the question regarding constitutionality of the Tenth Schedule to the Constitution is concerned, Mr. Das, relying upon the decision of the Full Bench of the Punjab and Haryana High Court (AIR 1987 Punj & Har 263) (supra) contends that the said Full Bench has struck down para 7 of the Tenth Schedule and, therefore, this Court should entertain the application. It transpires that the Government has carried an appeal to the Supreme Court against the aforesaid decision of the Punjab and Haryana High Court which is now pending before the Supreme Court. The Supreme Court itself on the request of the Central Government has withdrawn all cases pending in various High Courts wherein the constitutionality of the Tenth Schedule had been challenged and all these petitions are pending before the Supreme Court. In that view of the matter, I would observe that it would be open for the petitioner to move the Supreme Court assailing the constitutional validity, of the Tenth Schedule. Since in the present application, the main prayer was to quash the disqualification proceeding, which, I am not inclined to entertain and the constitutional validity was challenged incidentally, I also leave it open for the petitioner, if so advised, to make a fresh application to this Court only assailing the constitutional validity of the Tenth Schedule.
6.With these observations, I would dismiss the writ application, but without any order as to costs.
Agrawal, C.J.
7. I agree.
L. Rath, J.
8. This case has come before a larger Bench for consideration on the question of admission having been referred by a Division Bench of which I was a member. Even at the admission stage both before the Division Bench and as before us, the question regarding the authority of this Court to issue notice to the Speaker of the Orissa Legislative Assembly regarding a proceeding initiated before him for determination of the disqualification of a Member of the Assembly under the Tenth Schedule of the Constitution was argued at great length Because of the importance of the question involved, l would while fully concurring with the decision of my learned brother Justice Shri. G. B. Patnaik, like to add few words to supplement the same.
9. It is not disputed by Mr. Das, in view of para 6(2) of the Tenth Schedule, that a proceeding under para 6( ) of the same Schedule, namely, a proceeding to resolve the question as to whether or not a member has become subject to disqualification is a proceeding in the Legislature of the State to which the provisions of Article 212 of the Constitution are attracted. It is his submission, however, that notwithstanding such applicability of Article 212, yet so far as the petitioner's challenge is concerned, it is not in relation to a proceeding in the Assembly but questions the very commencement and maintainability of the proceeding on the petition of the Opp. party No. 6, to which the bar under Article 212 would not apply. It is further contended that the bar under Article 212 extends only to irregularities inside the House but not to illegalities. It is also contended by him that the infractions the petitioner has complained of regarding the entertainment of the petition and the manner of its dealing with are not only irregularities but are illegalities which it is open for the petitioner to challenge before this Court. So far as the first submission is concerned, the matter has been dealt with in the judgment prepared by Hon'ble Justice Patnaik. The main plank of Mr. Das's sub-mission in that regard is that the petition was ab initio still born having not been addressed to the Speaker as required under Rule 6(2) of the Rules framed under the Tenth Schedule but having been merely addressed to the Secretary of the Assembly. The submission is that the provisions of Rule 6(2) are mandatory having laid down a command in a negative form that no reference shall be made except in the manner as declared in the rule and that the manner is that so far as a member is concerned the petition relating to his disqualification is to be presented to the Speaker alone. Only when the allegation is against the Speaker himself, the petition has to be addressed to the Secretary. Mr. Das relying upon, AIR 1977 SC 536 (Mannalal Khetan v. Kedar Nath Khetan); AIR 1986 SC 2160 (A. K. Roy v. State of Punjab) and AIR 1975 SC 2182 (Ram Autar Singh Bhadauria v. Ram Gopal Singh), has argued that since the rule itself requires in a compulsory manner the presentation of the petition to be in one manner, its presentation in another manner must be held to be inherently incompetent for which reason the petition ought not to have been entertained at all and should have been rejected in limine. It has also been contended by Mr. Das that on receipt of such an application, the Speaker should not have referred the matter to the Committee of Privileges without first examining whether the petition complied with the requirement of Rule 6 and was under obligation under Rule 7(2) to dismiss the petition once it was pointed out that the petition does not comply with the provisions of Rule 6.
10. A proceeding inside the House remains a proceeding as such either at its commencement or during its continuance.
The proceeding regarding determination of the disqualification is, under a deeming provision of the Tenth Schedule, made a proceeding in the House. The proceeding commences on the presentation of the petition to determine the dispute. Once the proceeding is commenced, the deeming provision would operate and from that stage onwards it would be a proceeding inside the House and would be sealed from the scrutiny of this Court. There just can be no submission that this Court can entertain a petition to find out the illegality of the entertainment of the petition before the speaker since that question itself is one which is available to be decided by the Speaker himself at the first instance. Applying an analogy, if the speaker's functions are compared to a Tribunal for the purpose, yet every Tribunal has the jurisdiction to decide the matter of its own assumption of jurisdiction to decide the question before it and this Court would not rush in in all cases where an initial lack of jurisdiction in the Tribunals pleaded such question will differ from case to case depending on the facts and circumstances of each case.
11. This also leads me to the other submission raised by Mr. Das i.e., the petition was liable to be thrown out at the threshold having been addressed to the Secretary of the Assembly. It has been admitted by Mr. Das that in fact the petition of the Opp. party No. 6 was placed before the Speaker who directed the same to be examined by the Privileges Committee, the Opp. party No. 4. Para 6(1) of the Tenth Schedule vests the power exclusively in the speaker to decide, when a dispute is raised whether any member has become subject to disqualification, the issue and his decision on that count is final. Para 7 of the same Schedule also specifically excludes the jurisdiction of any Court in respect of any matter connected with the disqualification of a Member of the House. The rules on which reliance is placed by Mr. Das have been framed under para 8 which vests the rule-making power in the speaker who may make rules for giving effect to the provisions of the Schedule. Such rules may provide, inter alia, regarding the proceeding for deciding the questions referred to in para 6(1) including the procedure of the inquiry which may be made. The substantive provision vesting the power in the Speaker is para 6 whereas the rules under para 8 are only to regulate the procedure. The power under para 6(1) is absolute and without any rider. While no doubt Rule 6(1) has a mandatory cast yet such mandatory character would not have the sweep to restrict the scope and ambit of the power vested under para 6(1) in the Speaker since the substantive provision of law would not be stifled by the procedural regulation. The exercise of the power by the Speaker under para 6(1) of the Tenth Schedule is not dependent upon the framing of rules under para 8 and even in the absence of the rules framed for the purpose, the Speaker has the authority to resolve the dispute if raised before him. The authority of the Speaker operates proprio vigore without any fetter being clamped on his power by the rules. As admittedly the petition was dealt with as one addressed to the Speaker, and the Speaker has considered the same and dealt with it, the mere fact that it was addressed differently would not deprive the Speaker from exercising the powers vested in him by the Constitution.
12. Since I reach such conclusions it is not necessary to go into the further question regarding the authority of this Court to examine illegalities inside the House as distinct from only irregularities relating thereto. I do not find any illegality to have been committed in the matter of presentation of the petition. Referring the petition to the privileges committee or other such questions raised are merely matter relating to procedural irregularities. As admitted by Mr. Das and as the provisions of Article 212 itself are, this Court has no jurisdiction to examine any question relating to irregularities in respect of proceedings in the House. Doubtless a question may arise, as was decided in AIR 1960 SC 1186 (M. S. M. Sharma v. Dr. Shree Krishna Sinha) and AIR 1965 SC 745 cited by Mr. Das, whether, when the issue is one affecting a citizen's fundamental right or an illegality or unconstitutionality, the scrutiny by the Higher Courts is taken away, but however such question does not arise here for a detail examination.
13. Being of that view I also dismiss thispetition with liberty to the petitioner, if he isso advised, to raise the constitutionality of theTenth Schedule of the Constitution in aseparate petition.