A Motion Does Not Lapse on Dissolution

The argument for lapse, and it was a serious one

Note who argued what, because it is the reverse of what a student expects.

The Union of India argued FOR lapse. Its case was that articles 107, 108 and 109 read together show that on dissolution all Bills lapse, subject only to the exception in article 108; that on first principle no motion should survive dissolution unless the rules provide otherwise; and that the doctrine of lapse is a necessary concomitant of the idea that each newly constituted House is a separate entity having a life of its own, unless the previous House's business is carried over by statute or rule.

Note the Union's own concession, and it is remarkable. It also argued that whether a motion lapsed was to be decided on the provisions of law governing the matter, that the House itself was not its final arbiter, and that the Court alone had jurisdiction to examine and pronounce on the law.

The petitioners argued AGAINST lapse, on the ground that pending business lapses on prorogation and the House is usually prorogued before dissolution, but that removal motions are sui generis and therefore do not lapse. But they also argued that the question was one of the conduct of the business of the House, of which the House is the sole and exclusive master, and that no aspect was justiciable.

So both sides were arguing partly against their own interest, and the Court had to settle two questions: whether a court could decide the point at all, and whether the motion had lapsed. Chapter 1610 is the answer to the first.

The holding

First, the source of the answer is not article 118 and not parliamentary practice.

"Neither the doctrine that dissolution of a House 'passes a sponge over parliamentary slate' nor the specific provisions contained in any rule or rules framed under Article 118 of the Constitution determine the effect of dissolution on the motion for removal of a Judge under Article 124, because Article 124(5) and the law made thereunder exclude the operation of Article 118 in this area."

The Kaul and Shakdher passage relied on for the sponge doctrine, that dissolution is irrevocable, that all business pending before the House or any of its committees lapses, and that no part of the record of a dissolved House can be carried into the new one, was not doubted as a statement of ordinary parliamentary practice. It was held inapplicable, because this field is not ordinary parliamentary business at all. That is chapter 1610's two-part scheme doing its first piece of practical work.

The Court also had to deal with a precedent that cut the other way, Purushothaman Nambudiri v. State of Kerala, [1962] Suppl. 1 SCR 753, and did so by noting that it dealt with a legislative measure and not a pending motion, and then by resting the answer on article 124(5) rather than on parliamentary practice at all.

Second, a law under article 124(5) is of a higher quality than a rule of the House, and can provide against lapse.

"The law envisaged in Article 124(5) is parliamentary law which is of higher quality and efficacy than rules made by the House for itself under Article 118. Such a law can provide against the doctrine of lapse."

Third, and this is the actual reasoning, the Act provides against lapse by its own words.

"The effect of sections 3(1) and (2) and 6(2) of the Judges (Inquiry) Act, 1968, is that the motion should be kept pending till the committee submits its report and if the committee finds the Judge guilty, the motion shall be taken up for consideration. Only one motion is envisaged which will remain pending. No words of limitation that the motion shall be kept pending subject to usual effect of dissolution of the House can or should be imported."

And then the sentence that does the work:

"Section 3 of the Act applies to both the Houses of Parliament. The words 'shall keep the motion pending' cannot have two different meanings in the two different contexts. It can only mean that the consideration of the motion shall be deferred till the report of the Committee implying that till the happening of that event the motion will not lapse. Therefore, such a motion does not lapse with the dissolution of the House of Parliament."

Follow that argument, because it is a small masterpiece of construction. Chapter 1570 noted that section 3(2) requires the Speaker, on admitting a motion, to "keep the motion pending" and constitute a Committee. The Council of States cannot be dissolved at all, chapter 210. So if "shall keep the motion pending" were read as subject to dissolution, the same four words would mean one thing in the Lok Sabha and another in the Rajya Sabha. They cannot. Therefore they mean, in both Houses, that the motion stays alive until the report comes.

So the dissolution of the house does not end the inquiry, and the Committee constituted by the Speaker of the dissolved House continues its work before the new House.

A worked example

Members of the Sixteenth Lok Sabha move a motion; the Speaker admits it and constitutes a Committee; the House is dissolved before the Committee reports.

Does the motion survive? Yes. The Judges (Inquiry) Act is a law enacted under article 124(5) which provides against the doctrine of lapse, and a motion under section 3 does not lapse upon dissolution.

Must the members of the new House move it again? No. "Only one motion is envisaged which will remain pending."

Must the new Speaker constitute a fresh Committee? No. The Committee was constituted by a statutory authority under the Act, chapter 1610, not by the House; it does not fall with the House.

The Government says it will not notify the sitting judges' service as "actual service", so the Committee cannot function. That was the very grievance in this case, and the Court's answer is chapter 1610's: the matter is not outside the Court's jurisdiction, and the Union can be required to act in aid of the Speaker's decision so that the Committee may discharge its functions under the Act.

The Committee reports guilt, and the motion is put to the new House. Whose motion is it? The same motion, given by members most of whom are no longer members. Section 6(2) requires it to be taken up together with the report by the House in which it is pending, and it has been pending throughout.

Would the answer be the same for an ordinary resolution censuring a judge? No, and it could not be moved at all. Article 121 bars discussion of a judge's conduct except on a motion for an address for removal, chapter 1720; and an ordinary motion, being ordinary business under article 118, would lapse in the usual way.

What beginners get wrong

Applying the sponge doctrine. It is good law for ordinary business and does not determine the effect of dissolution here, because article 124(5) and the law made under it exclude article 118 in this area.

Thinking the new House must adopt the old motion afresh. Only one motion is envisaged, and it remains pending.

Thinking the Committee is a committee of the House. It is constituted by the Speaker as a statutory authority; the House does not come into the picture at this stage.

Thinking the Government can stall the inquiry by withholding an administrative notification. That was tried, and the petitions were filed precisely to compel the Union to act in aid of the Speaker's decision.

Forgetting the Rajya Sabha half of the argument. The whole construction turns on the words "shall keep the motion pending" meaning the same thing in a House that can be dissolved and one that cannot.

Quick revision

Holding: the Judges (Inquiry) Act 1968 is a law enacted under article 124(5) which provides against the doctrine of lapse, and a motion under section 3 does not lapse on the dissolution of the House.

Reason 1: neither the sponge doctrine nor any article 118 rule governs, because article 124(5) and the law made thereunder exclude the operation of article 118 in this area.

Reason 2: a law under article 124(5) is "of higher quality and efficacy than rules made by the House for itself under Article 118" and "can provide against the doctrine of lapse."

Reason 3: ss.3(1), 3(2) and 6(2) together mean the motion is kept pending till the Committee reports; "only one motion is envisaged which will remain pending"; and since section 3 applies to both Houses, the words "shall keep the motion pending" cannot mean one thing in a House that can be dissolved and another in one that cannot.

The facts: 108 members of the Ninth Lok Sabha; Speaker admitted and constituted the Committee; House dissolved; the Union declined to notify the two sitting judges' service as "actual service" under para 11(B)(i) of Part D of the Second Schedule; writ petitions by the Sub-Committee on Judicial Accountability and the Supreme Court Bar Association.

The alignment of arguments: the Union argued FOR lapse but conceded the Court alone had jurisdiction to pronounce on the law; the petitioners argued AGAINST lapse but said the question was not justiciable.

Test yourself

1. Does a motion for the removal of a judge lapse when the Lok Sabha is dissolved? No. In Sub-Committee on Judicial Accountability v. Union of India, (1991) 4 SCC 699, the Supreme Court held that the Judges (Inquiry) Act 1968 is a law enacted under article 124(5) which provides against the doctrine of lapse, and that a motion under section 3 of that Act does not lapse upon the dissolution of the House. Neither the doctrine that dissolution passes a sponge over the parliamentary slate nor any rule framed under article 118 determines the effect of dissolution in this field, because article 124(5) and the law made under it exclude the operation of article 118 here. The Committee already constituted by the Speaker likewise continues, because it was constituted by a statutory authority under the Act and not by the House.

2. What is the reasoning drawn from the words of section 3? Sections 3(1), 3(2) and 6(2) read together mean that the motion is to be kept pending until the Committee submits its report, and that if the Committee finds the judge guilty the motion is then taken up for consideration. Only one motion is envisaged and it remains pending throughout, and no words of limitation making that pendency subject to the usual effect of dissolution can be imported into the section. The clinching point is that section 3 applies to both Houses of Parliament, so the words directing that the motion shall be kept pending cannot bear two different meanings in the two different contexts; since the Council of States is not subject to dissolution at all, the words can only mean that consideration is deferred until the report, and that until then the motion does not lapse.

3. What was the practical difficulty that brought the matter to court? After the Speaker of the Ninth Lok Sabha admitted a motion given by 108 members and constituted a Committee consisting of a sitting Judge of the Supreme Court, the Chief Justice of a High Court and a distinguished jurist, the House was dissolved. On its understanding that the motion and the Speaker's decision had lapsed, the Union Government did not act in aid of that decision and did not notify that the service of the two sitting judges on the Committee would be treated as actual service within paragraph 11(B)(i) of Part D of the Second Schedule to the Constitution. The Committee therefore could not function, not because anyone had stopped it, but because an administrative step it depended on was withheld. The Sub-Committee on Judicial Accountability and the Supreme Court Bar Association filed writ petitions seeking a direction to the Union to enable the Committee to discharge its functions, and a restraint on the judge from performing judicial work meanwhile.

4. Why could the Court decide the question at all, given that the petitioners themselves said it was not justiciable? Because the removal process falls into two parts, and the first is not a proceeding in the Houses of Parliament. Up to the admission of the motion, the constitution of the Committee and the recording of its findings, the process is statutory: the Speaker acts as a statutory authority under the Act, and the matter is not outside the Court's jurisdiction. Whether the motion had lapsed was therefore a question about the effect of a statute made under article 124(5), which a court decides in the ordinary way. The Union itself, though arguing for lapse, accepted that the House was not the final arbiter of the point and that the Court alone had jurisdiction to pronounce on the law governing it.