Calcutta HC Seeks WB Speaker's Response In Suvendu Adhikari's Petition Challenging His Decision To Not Disqualify Mukul Roy

The Calcutta High Court on Thursday sought response from the West Bengal Legislative Assembly Speaker Biman Banerjee, TMC MLA Mukul Roy and the Secretary of Returning Officer, West Bengal Legislative Assembly in a writ petition filed by West Bengal Leader of Opposition Suvendu Adhikari challenging the West Bengal Speaker's decision to reject the petition seeking disqualification of Mukul Roy for defection from BJP to TMC.

On July 9, Mukul Roy had been appointed as the Chairman of Public Accounts Committee (PAC) by the Speaker of the West Bengal Legislative Assembly for the year 2021-2022. The plea filed before the Court had contended that on June 11, without officially resigning from the BJP or as the MLA of Krishnanagar Uttar constituency, Mukul Roy had defected to the TMC party on June 11, 2021.

A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj directed the concerned respondents to file their affidavit-in-opposition within 2 weeks. The reply to the affidavit-in-opposition was directed to be filed within 3 days thereafter. 

The matter is slated to be heard next on March 21. 

Senior advocate C.S Vaidyanathan appearing on behalf of BJP MLA Suvendu Adhikari apprised the Bench that the Supreme Court vide order dated February 25, 2022 had refused to entertain a Special Leave Petition (SLP) filed by Adhikari but had given liberty to Adhikari to approach the High Court against the Speaker's decision.

The Bench was further informed that considering that the term of Mukul Roy as the PAC Chairman is only for one year, the Supreme Court had asked the High Court to decide the matter within a month.

"Needless to say the observation made by HC while passing order dated 28.09.2021 is prima facie and parties are to take all contentions available to them under law. Considering the the tenure of Mukul Roy as Chairman of PAC is only for 1 years we request the HC to decide the WPs expeditiously and not later than a period of one month. All cases disposed of", the Supreme Court had recorded in its order while disposing of  the petitions.

Senior advocate Kishore Datta appearing for the Speaker of the West Bengal Legislative Assembly objected to the maintainability of the plea by contending that the instant writ petition must be heard before a Single Bench instead of a Division Bench. He submitted that if this is not done then whoever is unsuccessful essentially loses a forum for appeal. 

However, senior counsel Vaidyanathan objected to such a submission by contending that a similar submission had been made before the Supreme Court but the Supreme Court had dismissed such a contention since it was noted that since other writ petitions in the same matter are pending before the Division Bench it is advisable that the instant plea is also heard by the same Division Bench. 

Accordingly, the Bench directed the concerned parties to put the raised contentions in their written pleadings and further underscored, "we have not closed anybody's right". 

Background 

On June 17, a disqualification petition had been moved before the Speaker by BJP MLA and Leader of the Opposition Suvendu Adhikari against Mukul Roy on the grounds of defection under the Tenth Schedule of the Constitution. A Bench comprising former Acting Chief Justice Rajesh Bindal and Justice Rajarshi Bharadwaj of the Calcutta High Court vide order dated September 28 had observed that the Supreme Court vide its earlier judgments has held that a period of three months from the date on which the petition is filed is the outer limit within which disqualification petitions filed before the Speaker must be decided. Reliance was placed on the Supreme Court judgment in Keisham Meghachandra Singh v. Hon'ble Speaker, Manipur in this regard. It was further noted that the three months period to decide on the disqualification petition by the Speaker had already expired on September 16.

The observation had been made in the plea moved by BJP MLA Ambika Roy challenging the appointment of TMC MLA Mukul Roy as the PAC Chairman.

"Maximum three months period has been prescribed by Hon'ble the Supreme Court for decision of any such petition, which has already expired. The objective and purpose of Tenth Schedule is to curb the evil of political defections motivated by lure of office, which endangers the foundation of our democracy. The disqualification takes places from the date when the act of defection took place. The constitutional authorities who have been conferred with various powers are in fact coupled with duties and responsibilities to maintain the constitutional values. In case they fail to discharge their duties within time, it will endanger the democratic set up", the Court had observed.

The Court had further opined that the power of the Speaker to adjudicate upon an application filed for disqualification of a member of Assembly is quasi-judicial in nature and is thus subject to judicial review. It was further held that the Speaker should have decided on the disqualification petition pending before him before he decided to appoint Mukul Roy as the PAC Chairman.

"The Speaker was required to decide the petition filed before him for disqualification of the respondent No. 2 having defected from BJP to AITC, as a result of which his membership to the Assembly itself was in doubt. In case the respondent No. 2 does not remain the Member of the Assembly, there was no question of he being even the Member of the Committee what to talk of its Chairman", the Court had noted further.

The Court had accordingly directed the Speaker of the West Bengal Legislative Assembly to decide on the disqualification petition against TMC MLA Mukul Roy and place on record the order passed by October 7. On October 7, the Advocate General S.N Mookerjee had informed the High Court that the Speaker of the West Bengal Legislative Assembly had moved the Supreme Court challenging the aforementioned direction to decide on the disqualification petition against Mukul Roy. 

Pertinently, the Division Bench of the High Court had also remarked that the Speaker had failed to discharge his constitutional duty and had accordingly observed, "In the case in hand as is evident from the facts on record there is failure on the part of the Speaker to discharge his constitutional duty coupled with established admitted constitutional conventions. Apparently he has worked on dictates. Finally, he was caught in the web knitted by him."

Case Title: Suvendu Adhikari v. Hon'ble Speaker, WB Legislative Assembly and Ors and other connected matters