Tax And Fee - The Distinction

(By Markose Thomas, Advocate, High Court of Kerala)

-----That the power to tax involves the power to destroy-----

Marshall John, in M'Culloch v. Maryland 17 US (4 Wheat) 316,431 (1810).

There is no generic difference between a tax and fee; both are compulsory extraction of money by public authorities. But whatever minute difference there is, it needs to be analysed in detail because the distinction is mainly ascertainable by analysing the various decisions of Supreme Court with regard to the principle of quid pro quo in relation to fee. It is also important to analyse the distinction as our Constitution itself provides for a distinction between the two.

The etymology of the two words is useful in understanding the distinction.

Fee

Fee is a word bequeathed to Modern English by the feudal system (and indeed it is closely related etymologically to feudal). It came via Anglo-Norman fee from Medieval Latin feodum or feodum Source also to feudal.

Tax

Tax originally denoted "assess an amount to be levied" the notion of "imposing such a levy" is a secondary development. The word comes via old French taxer from Latin taxare. From taxare was derived by the medieval Latin noun taxa 'tax, piece of work imposed' which passed into English through Anglo-Norman tasque as task.

The Distinction

There are a fairly large number of decisions of the Supreme Court dealing with the distinction between a tax and a fee and they indicate the essential characteristics of a fee1One of the most important decision in which there is a detailed and illuminating discussion on the above aspects is AIR 1954 SC 282. Mukherje, J. delivering the judgment of a Constitutional Bench of seven Judges of the Supreme Court stated that a neat definition of what tax means has been given by Latham C.J. of the High Court of Australia in Mathew 's v. Chicory Marketing Board, 60 CLR 263 and quoted the following passage from that decision-passage from that decision-

"A tax is a compulsory exaction of money by public authority for public purpose enforceable by law and is not a payment for services rendered".

The learned Judge then elaborated the matter as follows:-

"It is said that the essence of taxation is compulsion that is to say, it is imposed under statutory power without the tax payer's consent and the payment is enforced by law." Vide Lower Mainland Dairy v. Crystal Dairy Ltd., 1993 AC 168.

The characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax. As the object of a tax is not to confer any special benefit upon any particular individual there is, as it is said, no element of 'quidpro quo' between the tax payer and public authority. Another feature of taxation is that as it is a part of the common burden, the quantum of imposition upon the taxpayer depends generally upon his capacity to pay.2

A fee is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supported to be based on the expenses incurred by the Government in rendering the service, though in many cases the costs are arbitrarily assessed. Ordinarily the fees are uniform, and no account is taken of the varying abilities of different recipients to pay. A fee is paid for performing a function. A fee is not ordinarily considered to be a tax. If the fee is merely to compensate an authority for service rendered, it can hardly be called a tax.3

The Constitutional Perspective

Under the Indian Constitution, the Government's power to levy a tax is not identical with that of its power to levy a fee. While the powers to levy taxes is conferred on the State legislatures by the various entries in List II, in it there is Entry 66 relating to fees, empowering the State Government to levy fees in respect of any of the matters in this list, but not including fees taken in any Court. The result is that each Stale Legislature has the power, to levy fees, which is coextensive with its powers to legislate with respect to substantive matters and it may-levy a fee with reference to the services that would be rendered by the State under such law.

Clause (2) of Art.110 and Clause (2) of Art.199 of the Constitution, the former occurring in the Chapter of Parliament and the latter in relation to the State Legislature, are in identical terms as follows:

A bill shall not be deemed to be a Money Bill by reason only that it provides for the demand or payment of fees for licenses or fees for services rendered.....

The Constitution, therefore, clearly draws a distinction between the imposition of a tax by a Money Bill and the impost of fees by any other kind of Bill. So also in the Seventh Schedule both in List I and List II a distinction has been maintained in relation to the entries of tax and fees. In the Union List entries 82 to 92 A relate to taxes and duties and entry 96 carves out the legislative field for fees in respect of any of the matters in the said list except the fees taken in any Court. Similarly in the State List entries relating to taxes are entries 46 to 63 and entry 66 provides for fees in respect of any of the matters in the said list except the fees taken in any Court. Our Constitution, therefore, recognises a different and distinct connotation between tax and fee.

The Case Law

It is necessary to review some of the decisions of the Supreme Court to pin point the precise difference as far as practicable in order to resolve the distinction between a tax and fee.

The leading case of Supreme Court, which has been referred and followed in many subsequent decisions, is the case of Commissioner, Hindu Religious Endowments, Madras v. Sri. Lakshmindra Thirtha Swamiar of Shirur Mutt4. The point decided therein was that the provision relating to the payment of annual contribution contained in S.76(1) of the Madras Hindu Religious and Charitable Endowments Act, 1951 is a tax and not a fee and so it was beyond the legislative competence of the Madras State Legislature to enact such a provision.

There were some very useful and leading principles from the decision of the Supreme Court in5 pointing out the difference between tax and fee. At page 1042 says Mukherjee, J.

"The distinction between a lax and a fee lies primarily in the fact that a tax is levied as a part of a common burden, while a fee is a payment for a special benefit or privilege....public interest seems to be at the basis of all impositions, but in a fee it is some special benefit which the individual receives".

In the case of Hingir Rampur Coal Co. Ltd. v. State of Orissa6 the challenge was to the cess levied by the Orissa Mining Areas Development Fund Act, 1952. The petitioners stand was that the cess levied was not a fee but a duty of excise on coal and hence beyond the competence of the State Legislature. The cess imposed was upheld as a fee. Gajendragadkar, J. delivered the judgment on behalf of the majority and discussed the point at some length. At page 545 Says the learned Judge: "a fee is levied essentially for services rendered and as such there is an element of quid pro quo between the person who pays the fee and the public authority which imposes it".

The Supreme Court in Nagar Muhapalika, Varanasi v. Durga Das Bhattachary7 held that the annual licence fee charged from the rickshaw owners and the driver of the Varanasi Municipal Board could be justified only on the basis of the element of quid pro quo. The fee was held to be ultra vires and illegal because after excluding certain items of expenditure the balance did not constitute sufficient quid pro quo for the amount of the licence fee charged.

In the case of Secretary, Government of Madras, Home Department v. Zenith Lamp & Electrical Ltd. 8the character of Court fees came up for consideration as to whether they are taxes or fees or whether they are sui generis. Although after referring to the various entries of the seventh schedule in the different lists it was noticed that court fees were not taxes and they were covered by separate entries of fees exclusively meant for courts, yet the broad principles of the requirement of quid pro quo were made applicable in the case of court fees also. Even so, Sikri, CJ. speaking for the court pointed out at page 982 (SCC p. 170 para 31).

"But even if the meaning is the same, what is 'fees' in a particular case depends on the subject matter in relation to which fees are imposed. The learned Chief Justice further observed at the same page: "In other words it cannot tax litigation, and make litigates pay, say for road building or education or other beneficial schemes that a Stale may have. They must be a broad correlationship with the fees collected and the cost of administration of civil justice".

Observations of Chandrachud, J. speaking for the Court in the case of Government ofA.P. v. Hindustan Machine Tools Ltd. 9at page 401 are quite apposite and may be usefully quoted here (SCC p. 282, para 22).

"One cannot take into account the sum total of the activities of a public body like a Gram Panchayat to seek justification for the fees imposed by it. The expenses incurred by a Gram Panchayat or a Municipality in discharging its obligatory functions are usually met by the imposition of a variety of taxes. For justifying the imposition of fees the public authority has to show what services are rendered or intended to be rendered individually to the particular persons on whom the fee is imposed. The Gram Panchayat here has not even prepared an estimate of what the intended services would cost it".

In Municipal Council Madurai v. R. Narayanan10 endeavour was made as in the case of Nagar Mahapalika, Varanasi11 to justify the impost by the Municipal Council as a tax. Krishna Iyer. J. speaking for the Court repelled that argument and since the impost could not be justified as fee the resolution of die Municipal Council was held to be invalid.

In Kewal Krishnan Puri case12 Untwalia, J. made the following observation.

1...it must be shown with some amount of certainty, reasonableness or preponderance of probability that quite a substantial portion of the amount of fee realised is spent for the special benefit of its prayers. (SCC p. 425)

2...a fee is levied essentially for services rendered and as such there is an element of quid pro quo between the persons who pays the fee and the public authority which, imposes it. (SCC p. 426)

3…it (service) means service in relation to the transaction, property or the institution in respect of which he is made to pay the fee (SCC p.427).

But in Sreenivas General Traders & Ors. v. Slate of A.P.13the Supreme Court pointed out that the decision in Kewal Krishan Puri14 case does not lay down any legal principle of general applicability. The observation made therein seeking to quantify the extent of correlation between the amount of fee collected and the cost of rendering of services, namely, "At least a good and substantial portion of the amount collected on account of fees, may be in the neighbourhood of two third or three-fourths, must be shown with reasonable certainty as being spent for rendering services in the market to the payer of fee", appears to be an obiter. It was not intended to lay down a rule of universal application but it was a decision, which must be confined to the special facts of the case.

In M/s. Kishan Lai Lakasmi Chand v. State of Haryana15the Supreme Court restated the distinction between tax and fee and pointed out that quid pro quo is an essential element of fee. But in the case of P. Kanadasa v. State of Tamil Nadu 16B.P. Jeevan Reddy, J. speaking for the Court differentiated between tax and fee and pointed out that the element of quid pro quo need not be established in each and every case and in case of regulatory fee the element of quid pro quo is totally irrelevant.

Conclusion

The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is a payment for a specific benefit or privilege. If the element of revenue for general purpose of the State predominates, the levy becomes a tax. In regard to fee, there is, and must always be, correlation between the fee collected and the service intended to be rendered. In determining whether a levy is a fee, the true test must be whether its primary and essential purpose is to render specific services to a specified area of class; it may be of no consequence that the State may ultimately and indirectly be benefited by it.

A levy in the nature of fee does not cease to be of that character merely because there is an element of compulsion or coerciveness present in it, nor is it a postulate of a fee that it must have direct relation to the actual service rendered by the authority to each individual who obtains the benefit of the service. Merely because the collections for the services rendered or grant of a privilege or licence are taken to the consolidated fund of the State and not separately appropriated towards the expenditure for rendering the service is not by itself decisive.

If the object of the fee is to provide general revenue to the authority rather than to compensate it and the amount of fee has no relation to the value of the service, the fee will amount to a tax. Where it appears that under the guise of levying a fee the authority is attempting to impose a tax, the court has to scrutinise the claim to find out whether there is a real co-relationship between the service and the levy whether it is so co-extensive as to be a pretence of a fee but in reality a tax and whether a substantial portion of the fee collected is spent in rendering services.

The power of any legislature to levy a fee is conditioned by the fact that there must be 'by and large' a quid pro quo for the services rendered. Thus the element of quid pro quo in the strict sense is not always a sine qua non for a fee. However, correlationship between the levy and the services rendered or expected is one of general character and not of mathematical exactitude. All that is necessary is that there should be a 'reasonable relationship' between the levy of the fee and the services rendered.

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1. (a) Commissioner, H.R.E. v. LT, Swamiar AIR 1954 SC 282. (b). Ratilal v. State of Bombay, AIR 1954 SC 388. (c). Jaganath V. State of Orissa, AIR 1954 SC 400. (d). Hingir-Rampur Coal Co. v. State of Orissa, AIR 1961 SC 459. (e). S.T. Swamiar v. Commr. H.R. and C.E. AIR 1963 SCC 966. (f) Corpn. of Calcutta v. Liberty of Cinema. AIR 1965 SC 1107. (g). Nagar Mahapalika v. Durga Das AIR 1968 SC 1119. (h). Lakhan Lai v. State of Bihar AIR 1968 SC 1408. (i). Commissioner H.R. & C.E. v. U. Krishna Rao, AIR 1970 SC 1114. (j). D.C. & G. Mills v. Chief Commr. Delhi, AIR 1971 SC 344 and (k). Indian Mica & Micarite Industries Ltd. v. State of Bihar, AIR 1971 SC 1182.

2. (a) Keural Krishna Pari v. state of Punjab, (1980) 1 SCC 416; (1973) 3 SCR 1217; (b) Sreenavas General Traders v. State of A.P. (1983) 4 SCC 353; (c) Subash Chander Kamalesh Kumar v. State of Punjab, AIR 1990 P & H 259.

3(a) Ram Chander v. State of U.P. 1980 Supp. SCC 27; (1980) 3 SCR 104; (b) Southern Pharmaceutical and Chemicals, Trichur v. Stale of Kerala (1981) 3 SCC 391; 1981 SCC (Tax) 320; (1982) 1 SCR 519, (c) Municipal Corporation of Delhi v. Mohd. Yasin (1983) 3 SCC 229; 1983 SCC (Tax) I54;(d) Ram Chander Kumar Co. v. State of UP. (1980) 2 SCR 104; 1980 Supp. SCC 27.

4. AIR 1954 SC 282; 1954 SCR 1005; 1954 SCJ 335.

5. Ibid.

6. (1961) 2 SCR 53; AIR 1961 SC 459.

7. (1968) 3 SCR 374; AIR 1968 SC 1119; (1968) 2 SCJ 836.

8. (1973) 2 SCR 973; (1973) 1. SCC 162; 1973 SCC (Tax) 203.

9. 1975 Supp. SCR 374: (1975) 2 SCC 274.

10. (1976) 1 SCR 333; (1975) 2 SCC 497; 1975 SCC (Tax) 386.

11. Supra 7.

12. (I979) 3 SCR myr (1980) 2 SCC 416, AIR 1980 SC 1008.

13. (1983) 3 SCC 354

14. Supra 12.

15. 1998 Supp (4) 46l

16. 1996 (7) JT 17. 

"Soumini" Not Sound Law

(By M.R. Rajedran Nair, Advocate)

Soumini, found guilty offence under S.21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, was convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rupees one lakh, and to undergo rigorous imprisonment for one year more in default of payment of fine, by the 1st Additional Sessions Judge, Kozhikode. The High Court of Kerala, in the decision reported in 2001 (2) KLT 546, set aside the conviction and sentence and set her at liberty. Her acquittal by the High Court is just and proper for the reason that there was non-compliance with the mandatory requirements of Ss.42 and 50 of the NDPS Act. The High Court relied on the decision of the Supreme Court in Koluttumottil Razak v. State of Kerala (2000 (4) SCC 465).

But incidentally, in para 6 of the judgment, the following observations were made:

"Admittedly, Pw-1 was Additional Sub Inspector of Nadakkavu Police Station on the date of incident. The prosecution has no case that he was the Station House Officer at the relevant time. So as per S.41, PW-1 is neither empowered officer nor authorised officer. It is true that  there is a Government Notification G.O. (M.S.) 146/90/TD dated 22.10.1990 whereby the Government of Kerala had empowered all the officers in the Police Department of and above the rank of Sub Inspector of Police and all officers in the Excise Department of and above the rank of Excise Inspector to exercise the power and perform the duties specified in S. 42 of the NDPS Act within the area of their respective jurisdiction. But the notification has not been incorporated as Rule. As per R.78(3) [Sic. S. 78(3)], the same has to be placed before Legislature. Nothing has been brought to my notice to show that the notification has been placed before the Legislature and it has become a Rule. Hence it is to be found that PW.l is neither an authorised officer nor an empowered officer to detect the offence."

It is submitted that the finding that PW.l, the Additional Sub Inspector of Police Nadakkavu Police Station, was neither an authorised officer nor an empowered officer does not appear to be correct proposition of law. If that be the law it will have the startling consequence of almost all cases under the NDPS Act, 1985 ending in acquittal. An empowered Officer or authorized Officer need not necessarily be a Station House Officer. According to the relevant portion of S.41 (2) of the NDPS Act, any such officer of the Revenue Drugs Control. Excise. Police or any other department of a State Government, as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken in writing, that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed etc... may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable, to arrest such a person, or search a building, conveyance or a place, whether by day or night, or himself arrest a person or search a building, conveyance or a place.

The learned Judge noticed that as per the Government Notification G.O. (M.S.) 146/90/TD dated 22.10.1990, the Government of Keralaempowered all the officers in the police department of and above the rank of Sub Inspector of Police etc... to exercise the power or perform the duties specified in S.42 of the NDPS Act. It cannot be disputed that PW-1, Additional Sub Inspector of Police is an officer of the rank of Sub Inspector of Police. But the court found that he is neither an authorised officer nor an empowered officer to detect the offence for the reason that the notification has not been incorporated as a Rule and nothing had been brought to the notice of the Court to show that the notification had been placed before the Legislature and has become a Rule.

Obviously, the Court was referring to the requirement under s.78(3) of the Act, according to which

"Every Rule made by the State Government under this Act shall be laid, as soon as may be after it is made, before the Legislature of that State."

The requirement of laying before die Legislature of the State is only with respect to Rules made by the State Government under the powers conferred by S.78 of the Act. S.77 requires that every Rule made under the Act by the Central Government and every notification issued under Clause (xi) of S.2, S.3 and clause (a) and explanation (1), (2) of S.27 shall be laid, as soon as may be after it is made or issued, before each House of Parliament. There is no requirement of laying the orders passed by the Central or State Government in exercise of the powers under S.41(2) before he Houses of Parliament or Legislature of the State. The Government orders will be effective as soon as it is published in the official Gazette. There is no requirement of incorporating the notification as a Rule.

Even in a case where there is requirement of laying before Parliament or State Legislature, the Rule or Notification will not always automatically become invalid for non-compliance with that requirement. The requirement of laying Statutory Rules or notifications before the Parliament or State Legislature is part of the mechanism of Parliamentary control of delegated legislation. There are different modes of laying. The rules and notifications may be simply laid as in S.78(3), or they may be subject to negative resolution as in S.77, or they may be laid with a stipulation that they would expire unless confirmed by affirmative resolution, or they may be laid in draft. In any case, the requirement is only to the extent stipulated in the parent Act. The Apex Court in Bharat Hari Singhania v.C.W.T. (1994 SCC Supp. (3) 46) held

"The requirement of laying before the House is one form of Parliamentary Control. But by that means, the rules does not acquire the status of the Statute made by the Parliament. Indeed the rules are effective as soon as they are made and published (emphasis supplied)".

In Atlas Cycle Industries v. State ofHaryana (1979 SCC (2) 196) the Supreme Court held that by S.3(6) of Essential Commodities Act, 1955 which ordained that every order made under that section by the Central Government or by any Officer or authority of the Central Government shall be laid before the both Houses of Parliament as soon as may be, after it is made, the legislature never intended that non-compliance with the requirement of laying as envisaged therein should render the order void.

The legal position was reiterated in State of M.P. v. Hukum Chand Mills Karmachari (1996 (7) SCC 81) in relation to S.95(3) of Madhya Pradesh Co-operative Societies Act, which reads as follows.

"95(3). All rules made under this Act shall be laid on the table of the legislative Assembly.

Even otherwise, there is always a presumption of validity of legislation including subordinate legislation. Even when there is a requirement of laying before Parliament or State Legislature, the subordinate legislation will not become invalid for not positively showing that the notification was placed before the Legislature. The burden to prove positively that the subordinate legislation is invalid for non-compliance with the laying procedure before the Parliament/State Legislature will be with the person who challenges the Rule/Notification.

In this background, it is submitted that while the acquittal of Soumini is right in view of the findings regarding non-compliance with Ss.42 and 50 of the NDPS Act, the reasoning for holding that the Additional Sub Inspector of Police, Nadakkavu Police Station, is neither an authorised officer nor an empowered officer to detect an offence is not correct statement of law.

Procedural Bottle Necks - A Study of Procedure for

Obtaining a Certified Copy of Order/Judgment - High Court

(By M.R. Rajendran Nair, Advocate)

Archaic procedure and absence of practical approach coupled with governmental indifference in financial matters contribute to avoidable delay in administration of justice.

High Court Judges are over burdened with judicial and administrative work. Appointments of Judges even to the extent of sanctioned strength are never made. There are Judges who dispose of large number of cases. The stenographers'/typists' strength is grossly inadequate in these areas. Computerisation is only halfway. But there are areas where with the existing infrastructure better result can be achieved and the procedure could be speeded up.

Let us have a look at the current procedure for gelling a certified copy of an order/ judgment of High Court.

Judgment is dictated to a stenographer either in open court or in chamber. Stenographer transcribes the judgment in duplicate and after carrying out the correction if any places it for signature of the Judge. After the Judge signs the judgment the same is pronounced in the open court, if not dictated in court. It is sent to another section for typing the cause title. After cause title is typed, the judgment along with the cause title is taken back to the stenographer of the Judge. There an entry is made in a register and thereafter the copy of the judgment is sent to the judgment section of copying section. Original judgment along with the file of the case is sent to the concerned section.

After pronouncement of judgment, the process of preparation and typing of cause title and routing the same through stenographer to the copying section takes considerable time.

A copy application with court fee stamp affixed is filed. If you want the copy urgently another application is to be separately filed with additional court fee. The application filed are distributed by the section officer concerned among the court fee examiners. They scrutinize the application. If it is free from defect the applications are sealed and court fees are cancelled by a class IV employee. The details of applications are entered in the court fee register separately kept for that purpose. Thereafter the applications are taken by a Class IV employee to copying section. It will be distributed among the concerned copyists. There are different seats for Appeals, Original Petitions, Civil Revision Petitions, Criminal Cases, pending matters etc. Those copyists enter the application in the "A" register maintained by the copying section. It is recorded in 'B' register also. 'A' register is open for inspection by advocate, clerk and clients. 'B'register is kept by the office.

Thereafter all the applications are sent to the judgment section, where the judgments are preserved. The judgments might not have reached that section by this lime in case of fresh disposal. Copy applications are sorted out and kept in order of priority based on application number, year wise. When the judgment reaches the section, application will be taken up and the application along with the judgment will be sent to another seat. A notice will be prepared by the assistant concerned indicating the value of court fee stamps to be produced in the notice book and the carbon copy of the same will be affixed on the notice board.

Therefore the advocate/clerk will produce the required stamps, before that assistant. The production of stamp will be noted on the copy application and the receipt of stamp will be accounted in a register namely 'Receipt'.

These stamps are kept in safe custody. Copy application with the judgment will be sent to photo copying section/typing section. The required copies are taken in that section. There is a procedure of comparing the original with the copy. But this requirement is dispensed with in cases where photocopies are taken. Copy of the order/judgment along with the original is the taken to the cabin of Registrar for affixing Court Seal on each page of the copy. Then the original judgment and copies taken (unsorted) are taken to the judgment section. There 'Assistants' sort the certified copies, enter the details in 'B' Register kept there. Thereafter retaining the original judgment in the judgment section copies (not stapled or stitched) are taken to issuing seat. That dealing Assistant is expected to collect the required stamp, already produced, from the concerned Seat and affix the stamps on the copies and to make necessary endorsement on the face of the docket. Then the copy is placed in the 'A' Register and taken lo the Examiner. After thorough scrutiny to find out whether the copy is legible and complete and affixed with the required stamp etc., the Examiner subscribes the signature certifying that it is the true copy.

Thereafter details are entered into ready list. A notice will be published fixing the date for appearance for collecting certified copy. When the Counsel/Clerk/Party appears, copy will be delivered after taking signature in the 'A' Register. More or less same if not more complicated is the procedure for obtaining certified copies of any other documents including those of pleadings. More than 25 employees in various grades work in the copying section of the High Court, involving an annual expenditure of many lakhs. The fees levied will not be enough to meet the expenditure incurred. In addition to this lot of work is done by advocates and their clerks to expedite matters. The evening crowd at the copying section is parallel to the one before a movie house on the day of release of a box office hit.

This bullock cart procedure can be substituted by a simple, less costly procedure. Sufficient number of Stenographers must be provided. The judgments including cause title must be typed by them. All orders/judgments can be made available on computer. The certified copy can be served on demand by getting a print out from the computer and certifying the same on the spot against payment of prescribed fee, commensurate with the expense involved. This will not only reduce the work load but also improve the image of all those who are responsible for administration of justice including. Bench and Bar.

Presidential Assent - Lacuna in the Constitution

(By P.K.R. Menon - Senior Advocate, Ernakulam)

Article 111 of the Constitution deals with Assent to Bills by the President of India.

Article 200 deals with the Assent to Bill by the Governor.

Article 201 deals with Assent to Bill reserved by a Governor for the consideration of the President.

For convenience, I shall extract the three Articles:

"111. Assent to Bills.-When a Bill has been passed by the Houses of Parliament, it shall be presented to the President, and the President shall declare either that he assents to the Bill or that he withholds assent therefrom:

Provided that the President may, as soon as possible after the presentation to him of a Bill for assent, return the Bill if it is not a Money Bill to the Houses with the message requesting that they 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 Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the Houses with or without amendment and presented to the President for assent, the President shall not withhold assent therefrom, (underlining supplied)

200. Assent to Bills.-When a Bill has been passed by the Legislative Assembly ofa Slate or, in the case of a State having a Legislative Council has been passed by both Houses of the Legislature of the Stale, 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: (Underlining supplied)

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.

201. Bills reserved for consideration :When a Bill is reserved by a Governor for the consideration for the President, the President shall declare that he assents to the Bill or that he withholds assent therefrom:

Provided that, where the Bill is not a Money Bill, the President may direct the Governor to return the Bill to the House or, as the case may be, the Houses of the Legislature of the Slate together with such a message as is mentioned in the first proviso to Art.200 and, when a Bill is so returned, 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.

Articles 111 and 200 do not create any difficulty or problem for implementation by the concerned authorities.

Under Article 111 of the Constitution when a Bill is passed again by the Houses with or without amendment and presented to the President I'or assent the President shall not withhold assent therefrom.

Under the main provision of Art.200, 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. The second proviso to Art.200 also contemplates a situation of reservation by the Governor for the consideration of the President. In the former case the reservation by the Governor for the consideration of the President is discretionary and in the latter case it is mandatory for the Governor to refer the Bill for the consideration of the President if according to the Governor the situation is one as contemplated under the second proviso to Art.200.

As noted above, under the two situations, the Governor can or has to refer the Bill for the consideration of the President and the President has to consider the Bill under Art.200 of the Constitution.

Under the main provision of Art.201 the President shall declare that he assents to the Bill or that he withholds the assent therefrom.

Under the proviso to Art.201, in a situation where the President directs the Governor to return the Bill to the House, and when a Bill is so returned, the House shall reconsider and if the House with or without amendment again passes it, it shall be presented again to the President for his consideration.

In the absence of a provision similar to the one contained in Art.111 (wherein once the Bill is passed again and presented to the President for assent, the President shall not withhold assent therefrom) in Art.201 the President can once again very well invoke the power vested in him under the main provision of Art.201, that is, the President shall declare that he assents to the Bill or that he withholds assent therefrom.

In the light of the above in the case of Bill referred by the Governor to the President if the President once again withholds assent therefrom, the Bill will not become law and there is no way suggested in the Constitution to implement or execute the will of the legislature as in the case under Arts.111 and 200 of the Constitution wherein once, the. House reconsiders the Bill, the President shall not withhold assent.

The Speaker and the Oath Controversy

(By P.K.R. Menon, Senior Advocate)

Relying on Art.212 of the Constitution of India the Speaker of the Kerala Legislative Assembly has taken the stand that the legality of the oath taken by a legislator of the Kerala Assembly in the name of "Shree Narayana" cannot be gone into by a Court of law. The administration of oath by the protem (for the time being) Speaker, according to the Speaker is beyond judicial scrutiny. According to him under Art.212(1) of the Constitution "the validity of any proceedings in the legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure". In answer to a Presidential Reference made under Art.143 of the Constitution of India, - Special Reference No. 1 of 1964 the Supreme Court had occasion to consider the scope and ambit of Art.212(1) of the Constitution of India. The Hon'ble Supreme Court opined thus:

"It lays down that the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. Art.212(2) confers immunity on the officers and members of the Legislature in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. Art.212(1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the Legislative Chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinised in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular". (AIR 1965 SC 745 at 768) (emphasis supplied)

Under Art. 188 of the Constitution

"Every member of the Legislative Assembly or the Legislative Council of a State shall, before taking his seat, make and subscribe before the Governor, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule."

Art.199 deals with vacation of seats by members of the Legislative Assembly. And in Art. 199 the words used in various places are 'his seat', "resigns his seat", the House may declare his seat vacant".

On a fair reading of Arts.188 and 199 of the Constitution of India, the emphasis is not on the membership of the legislature but on a legislator occupying his seat what the legislator resigns is not his membership but his seat. Again under Art. 190(4) the House may declare a legislator's seat vacant.

In the light of the emphasis given to seat (and not membership) in the relevant Articles of the Constitution of India any proceedings in the legislature of a State can have reference to proceedings participated by members who have taken their seats on oath or affirmation according to the form set out for the purpose in the Third Schedule.

Form of Oath or affirmation to be made by a member of the legislature of a State provided in the third Schedule of the Constitution of India reads:-

"1, A.B., having been elected (or nominated) a member of the Legislative Assembly (or Legislative Council), do swear in the name of God that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter."

(emphasis supplied)

Administering or making and subscribing before the Governor or some person appointed in that behalf by him an oath or affirmation do not form part of proceedings contemplated under Art.212 of the Constitution.

The words "I am about to enter" obtained in the form of the oath or affirmation extracted above would also vouch safe for the fact that only on Oath or affirmation a member of the legislature could occupy a seat and proceedings subsequent to the occupation of the seat alone is taken care of by Art.212 and that too subject to the limitations or norms laid down by the Supreme Court in AIR 1965 SC 745 extracted earlier in this Article.

Administration of Oath or affirmation is either before the Governor or some person appointed in that behalf by him; Members of the legislature after taking Oath or affirmation before the Governor or some person appointed in that behalf by him elects the Speaker. So far as the elected Speaker is concerned, the proceedings he is concerned with can and could be only proceedings starting with his election and after. The Speaker is elected by legislators who have taken their seats on oath or affirmation.

The administration of Oath or affirmation does not form part of the proceedings contemplated under Art.212 of the Constitution. So if the Oath or affirmation is not in accordance with the Constitution and the law, the same shall be gone into by a High Court.

If an oath or affirmation is not in accordance with law, it does not invalidate the actions of the elected representative. And Art.193 provides only for penalty in such an event.

Art.193 leaving out details not necessary for the issue involved reads:

"If a person sits or votes as a member of the Legislative Assembly.... of a State before he has complied with the requirements of Art.188.........he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the State"

If the Court is to declare that the Oath or affirmation is not in accordance with the third Schedule of the Constitution the only consequence is one of payment of penalty contemplated under Art.193 till the concerned legislator makes an Oath or affirmation as provided in the third Schedule of the Constitution.

The honour and dignity with which the office of the Speaker is looked up to is reflected in the following speech made by Mr. Jawaharlal Nehru, on the occasion of the unveiling of a portrait of the Late Vithalbhai Patel (the first Indian who presided over the Central Legislative Assembly) on March 8,1948 in the Constituent Assembly of India (Legislative). He said:

"Now, Sir, on behalf of the Government, may I say that we would like the distinguished occupant of the chair now and always to guard the freedom and liberties of the House from every possible danger, even from the danger of executive intrusion. There is always a danger..... from majority that it may choose to ride roughshod over the opinions of minority, and it is there that the Speaker comes into protect each single member, or each single group from any such unjust activity by a dominant group or a dominant Government.... The Speaker represents the House. He represents the dignity of the House, the freedom of the House and because the House represents the Nation, in a particular way, the Speaker becomes the symbol of the Nation's freedom and liberty. Therefore, it is right that should be an honoured position, a free position and it should be occupied always by men of outstanding ability and impartiality".

The Article is confined to the jurisdiction of courts to go into the question of the validity of the Oath taken by a Legislator.