'Perverse Order': Calcutta HC Sets Aside WB Speaker's Order Dismissing Suvendu Adhikari's Plea To Disqualify Mukul Roy, Remits Plea Back To Speaker

The Calcutta High Court on Monday set aside West Bengal Assembly Speaker Biman Banerjee's order dismissing a petition by Leader of Opposition Suvendu Adhikari which sought disqualification of TMC lawmaker Mukul Roy as a member of the House on the ground of defection and restored the matter for fresh consideration.

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.

In the impugned order dated February 11, the Speaker under para 6 of the Tenth Schedule of the Constitution had rejected the petition to disqualify Mukul Roy on the ground of defection. 

A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj set aside the impugned order after coming to the conclusion that it is perverse. 

"..the impugned order of the Speaker is clearly a perverse order and perversity being one of the grounds of judicial review available against such an order, this Court finds that the order impugned cannot be sustained", the Court ordered. 

Adhikari had approached the Speaker for disqualifying Mukul Roy, under paragraph 2 (1)(a) of the Tenth Schedule on the ground that having won the election of MLA from the BJP symbol as a BJP candidate he had joined the TMC on June 11, 2021.  In support of his plea, he had placed reliance on several newspaper reports, tweets, and alleged press conference which was telecast live in the facebook page of AITC, video recording of the said press conference and screenshots of the announcement made in the twitter handle of AITC on June 11, 2021 along with the transcripts thereof.

In support of the evidence relating to electronic record, Adhikari had filed the required certificate under Section 65-B of the Evidence Act before the Speaker. However, the Speaker had subsequently rejected the electronic evidence and had even refused to admit the certificate filed under Section 65-B of the Evidence Act in support of the electronic evidence. 

Pursuant to the perusal of the record, the Court observed that the Speaker had passed the impugned order by completely ignoring the certificate under Section 65-B of the Evidence Act which was in support of vital electronic evidence. 

"A bare perusal of the aforesaid makes it clear that the Speaker while passing the impugned order has completely ignored the certificate under Section 65-B of the Evidence Act submitted by the petitioner in support of the electronic record. The certificate under Section 65-B of the Evidence Act submitted by the petitioner was a vital document in support of the evidence in the form of electronic record which has been completely ignored by the Speaker", the Court underscored. 

The Court noted that the Speaker had refused to admit electronic evidence by stating that it was not accompanied by certificate in terms of Section 65-B of the Evidence Act. The Court underscored that it is necessary for the Speaker to duly take into account the certificate given by the petitioner under Section 65-B of the Act before rejecting the electronic evidence as inadmissible which he has failed to do in the present case.

"The Speaker is required to consider the certificate produced by the petitioner under Section 65-B of the Evidence Act and thereafter it is open to him to accept or reject the certificate after assigning due reasons and take further steps. If such a certificate is accepted then the electronic evidence produced by the petitioner becomes admissible unless there is any other legally acceptable objection about its admissibility. There is possibility of reaching to a different conclusion than the one which has been arrived at by the Speaker in the impugned order, after holding the electronic evidence admissible and after examining the same", the Court elucidated further. 

The Court further averred that if the Tribunal or the Court concerned finds a certificate given under Section 65-B of the Evidence Act to be defective, then it can summon the person/persons referred to Section 65-B of the Act.  

Pertinently, the Bench took 'serious issue' of the contention raised by the petitioner that the Speaker who is a constitutional authority is espousing the cause of Mukul Roy as evident in the affidavit-in-opposition filed by the Speaker and thus cannot be said to be acting independently.

Furthermore, the Court noted that a technical objection about the maintainability of this petition was also raised by the Speaker which gave an opportunity to the petitioner to question his independence.

Opining that the Speaker should impartially and independently decide the disqualification petition, the Court underscored, 

 "The respondent No. 1, Hon'ble Speaker, had limited role to place the relevant material before this Court in support of the reasoning on the basis of which conclusions in the order impugned were arrived at. We need not examine the issue in detail but we express hope and trust that the respondent No. 1 will impartially and independently decide the petition filed by the petitioner in respect of disqualification of the respondent No. 2."

Accordingly, the Court opined that the certificate filed before the Speaker under Section 65-B needs to be considered in accordance with law and the electronic evidence needs to be re-appreciated.It was further observed that instead of considering the certificate under Section 65-B of the Evidence Act for the first time by the Court in exercise of writ jurisdiction, the better course of action would be to let the Speaker consider the said certificate and thereafter the electronic evidence in accordance with law. 

Thus, the Court remitted the matter back to the Speaker for fresh decision. The Speaker was ordered to decide the application for disqualification filed by the petitioner as expeditiously as possible preferably within a period of 4 weeks since the term of Mukul Roy is set to expire in a short while. 

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.

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."

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."

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. 

"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.

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

Case Citation: 2022 LiveLaw (Cal) 120 

Click Here To Read/Download Order