'Legislative Proceedings Immune From Court's Scrutiny': WB Speaker Questions Maintainability Of Plea Against Dismissal Of Mukul Roy's Disqualification

The Calcutta High Court on Monday took on record the affidavits-in-opposition filed by West Bengal Legislative Assembly Speaker Biman Banerjee, TMC MLA Mukul Roy and the Secretary, 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.

On Monday, the counsel appearing for the petitioner prayed before a Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj to grant 2 days extension of time to file the reply to the affidavits-in-opposition. 

Furthermore, the Bench recorded in the order that the Supreme Court vide order dated February 25, 2022 had directed the High Court to decide the matter within a month after refusing to entrain a Special Leave Petition (SLP) filed by Adhikari 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.

Accordingly, the Court listed the matter for further hearing on March 23.  

Averments on behalf of the Speaker, WB Legislative Assembly 

In the affidavit-in-opposition filed by the Speaker, WB Legislative Assembly it has been averred that the instant petition is not maintainable due to the bar imposed under Article 212 of the Constitution which immunises proceedings inside the Legislature from being challenged in a Court of law on the ground of irregularity of procedure. 

Furthermore, it has been stipulated that pursuant to Article 212(2) of the Constitution, even an erroneous decision or interpretation of the Rules of procedure by Officers including the Speaker and members cannot be made the subject-matter of scrutiny in a Court of law. 

"The High Court cannot be a court of revision against the Legislature or the Speaker's ruling with respect to proceedings within the House", it was averred further.

It was further contended that the Speaker had passed a reasoned and speaking decision after affording adequate opportunity of hearing to both Suvendu Adhikari and Mukul Roy. It was also highlighted that the impugned decision of the Speaker is strictly in accordance with law and in conformity with paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India read with Article 19(2) of the Constitution. 

The Speaker further stated that Mukul Roy had deposited his election certificate and had also furnished a statement of members and declaration in Form III under sub-rule 2 of Rule 4 of the Members of the West Bengal Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986. It was also averred that as disclosed Mukul Roy had contested elections in the General Assembly Elections in 2021 from Krishnanagar Uttar Assembly Constituency, Nadia as a candidate sponsored by the BJP. 

"The wit petitioner has failed to demonstrate any cause of action to file the instant writ petition. The act in question, being challenged by the petitioner is neither illegal nor artistry and very much in accordance with law", the affidavit stated further. 

It was also highlighted that Rule 302 of the Rules of Procedure and Conduct of Business in the West Bengal Legislative Assembly does not provide that members of the Public Accounts Committee (PAC) should be elected based on the proportional representation of the political parties. Thus, it was stated that nomination can be filed by any member of the House for being elected as a member of the PAC and that there is no provision for filing such nomination on the basis of party affiliation. 

"Nowhere, in the said Rules it has been provided that the proportional representation would be made party-wise. Similarly, the purported contention that by applying the principle of proportional representation, 14 seats would be reserved for AITC and 6 seats would be reserved for BJP in the Public Accounts Committee is specifically denied. Rule 302 of the Rules does not speak about any such party affiliation or that the principle of proportional representation has to be based party-wise", it was contended further. 

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