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Calcutta High Court directs West Bengal Speaker to decide on disqualification petition moved by BJP MLA Suvendu Adhikari

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Kolkata, Sept 28 (ILNS) The Calcutta High Court today directed the Speaker of the West Bengal Legislative Assembly to decide on the disqualification petition moved by BJP MLA Suvendu Adhikari on an urgent basis.

The petition was filed by BJP MLA Ambika Roy challenging the appointment of Mukul Roy as the Chairman of the Public Accounts Committee (PAC) of the West Bengal Legislative Assembly

A Bench comprising Acting Chief Justice Rajesh Bindal and Justice Rajarshi Bharadwaj observed that it is the duty of the Court to protect the Constitution and its values and the principles of democracy, which has been held to be a basic structure of the Constitution.

Senior Counsel C.S. Vaidyanathan, appearing for the Petitioner submitted that Mukul Roy  was elected as a member of the State Legislative Assembly on a BJP ticket. The result of the Assembly Election was declared on May 02, 2021. On June 11, 2021 Mukul Roy  defected from Bharatiya Janata Party  (BJP) to All India Trinamool Congress (AITC).

On June 17, 2021 a petition was filed by Suvendu Adhikari seeking disqualification of Mukul Roy from the Assembly. On June 24, 2021, twenty MLAs including Mukul Roy were elected as members of the Committee on Public Accounts. On July 09, 2021 the Speaker nominated Mukul Roy  as the Chairman of the Public Accounts Committee treating him to be MLA belonging to BJP though he had already defected to AITC. It was against the convention admitted by the Speaker himself in the order passed by him.

Vaidyanathan, further submitted that the Committee on Public Accounts is constituted for one year and the idea of the respondents is to let the present petition become infructuous. Firstly, the Speaker is not deciding the petition pending before him alleging defection of Mukul Roy from BJP to AITC, which in terms of judgment of  the Supreme Court in Keisham Meghachandra Singh v. Speaker Manipur Legislative Assembly and Others, (2020) SCC OnLine SC 55 is to be decided within a reasonable period which has been held to be maximum three months.

Kishore Datta, Advocate General, appearing for the state  submitted that though the petitioner has tried to use the word constitutional convention in his arguments but the same is not borne out even from the order passed by the Speaker nominating Mukul Roy  as the Chairman of the Committee on Public Accounts. He merely used the term ‘convention’. The same cannot be taken to be constitutional convention. As the names of the Chairman of various committees including the Committee on Public Accounts were declared by the Speaker on the floor of the House during the proceedings of the Assembly, the bar under Article 212 of the Constitution of India applies for any interference by the Court. As the petitioner is an interested party to the litigation, a petition filed in public interest will not be maintainable. At the most he can bring motion in the Assembly.

Anindya Kumar Mitra, Senior Advocate appearing for Mukul Roy contended  that it is misconceived to argue that any practice for a short duration can be treated as a constitutional convention. Even an admission made by a Speaker on that account cannot be considered to be a constitutional convention. It cannot be created by one person in the state. Even if seen from the pleadings of the petitioner, intermittently there had been Chairman of the Committee on Public Accounts belonging to the opposition party however, it was not a regular practice. Constitutional convention cannot be limited to a state. In any case any admission made by the Speaker will not be binding on Mukul Roy  .

Counsel for Roy further added that even in the objections filed by the petitioner to the nomination of Mukul Roy  as member of the Committee on Public Accounts no such plea was raised. The Constitution of Committee is for a period of one year. It is not provided in the Rules of Procedure and Conduct of Business in the West Bengal Legislative Assembly  that nomination has to be proposed and seconded by the member of the same party. Some credence has to be given to the Rules of Business framed in exercise of powers conferred under Article 208 of the Constitution of India. It is not provided in the Rules of Business that the Chairman of the Committee on Public Accounts has to be of any opposition party. It is easy to plead but difficult to prove a constitutional convention. How the same is to be established has been well laid down in judgment of  the Supreme Court in Supreme Court Advocates-on-Record Association’s (1993) case (supra) and K. Lakshminarayanan v. Union of India, (2020) 14 SCC 664. Any convention in a state cannot be termed as constitutional convention.

In response, Vaidyanathan,  Senior Counsel appearing for the petitioners  submitted that there is no response by either of the respondents that Mukul Roy  had left the BJP party and joined AITC. That is the basic fact on which all other issues regarding convention are dependent. It is the fact admitted by the speaker himself in the order. Hence, no explanation given by either of the parties can be accepted.
I – Regarding Disqualification Petition- 
The Bench held that issues raised in the petition could very well be sorted out in case the Speaker had decided the petition pending before him for disqualification of Mukul Roy  from the Assembly, expeditiously. The objective and purpose of the Tenth Schedule is to curb the evil of political defections motivated by the lure of office, which endangers the foundation of our democracy. The disqualification takes place 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. Even for the decision of the petitions filed for disqualification of a member by the Speaker, the Courts have to intervene and specify the timeline. A Speaker in discharge of his constitutional duties is expected to be neutral. The power of the Speaker to adjudicate upon an application filed for disqualification of a member of Assembly has been held to be quasi-judicial in nature, which is subject to judicial review by the Courts.

II – Rules of Procedure and Conduct of Business in the West Bengal Legislative Assembly, Constitution of Committees and Importance Thereof-

“A perusal of the various Rules of Business with reference to the working of the Committees and the work to be discharged by them and the powers conferred on them clearly establish the importance thereof.  The Supreme Court has opined that the Committees constituted by the legislative bodies perform a key role in the functioning and working of the Houses as there is more reasonable and applied discussion in these Committees. Effective working of the Committees is a prelude to the core working of the Assemblies. The Committees are in fact an extension of the legislature itself and do informed work. These Committees consist of Members of the Assembly having affiliation to different parties. It is a participative process in the democratic set up. The importance of the Committee on Public Accounts is evident from the fact that Rule 302 of the Rules of Business provides for proportional representation. The Chairperson has to be appointed by the Speaker. It is not the power to be exercised by the Assembly. The Assembly proceedings are in the term of some formal action or decision taken by the House in its collective capacity. Debate is an intrinsic part of that process. Even if in the present case the declaration of the names of the Members of the Chairpersons of the Committees was made in the Assembly, this cannot be termed to be proceedings in the Assembly as it was merely a declaration made by the Speaker in the presence of all the Members. It was not subject matter of discussion amongst the Members in the Assembly. There may be some Committees constituted by the State Assemblies or the Parliament but the case in hand is different”, the Court observed .

As in the case in hand all the three ingredients, which are required to accept the convention as noticed by the Speaker in the declaration made by him as a constitutional convention, are available the same can very well be treated as constitutional convention. This is in addition to the fact that the same is the admitted case of the Speaker himself in the declaration made. He cannot come out of the admission made by him. The same is also keeping in view the healthy democratic set up and maintaining the constitutional values. It is only after the action was challenged in Court that the respondents have come up with different pleas to come out of the declaration made by the Speaker at the time of nomination of the Chairman of the Committee.

The Court said that it is not a case of procedural irregularities, which could debar this Court from entertaining the petition in terms of Article 212(1) of the Constitution of India. It is a case of blatant illegality. Firstly, the Speaker was required to decide the petition filed before him for disqualification of Mukul Roy  having defected from BJP to AITC, as a result of which his membership to the Assembly itself was in doubt. In case Mukul Roy  does not remain the Member of the Assembly, there was no question of him being even the Member of the Committee what to talk of its Chairman. Further, the established constitutional convention which even as per the declaration made by the Speaker at the time of appointment of the Chairman of the Committee was also violated.

Once the Office of Chairman of the Committee on Public Accounts is found to be a public office, a writ of quo-warranto will certainly be maintainable, in case he has found to be usurping the same. In the case in hand, there are two reasons on which this Court can exercise that power. Firstly is the constitutional convention, which stands established and further it is the admitted case of the respondents themselves that one of the eligibility conditions to be a Member or the Chairperson of the Committee, is to be a Member of the Legislative Assembly. In the case in hand, the allegation of the petitioner is that Mukul Roy  had defected from BJP to AITC.

The Court noted that a petition for disqualification was pending before the Speaker before he was even nominated as the Chairman of the Committee on Public Accounts. The disqualification is from the date when the act of defection took place. Failure on the part of the Speaker to adjudicate upon that petition despite the maximum period provided therefore having expired, is creating more trouble as a result of which the interference of this Court has been called for. In fact, the respondent No. 1 should have first decided the petition for disqualification of the respondent No. 2 and thereafter, considering his eligibility, should have taken steps to appoint him as the Chairman of the Committee on Public Accounts.

The High Court analysed that maintainability of PIL in the present case will not be an issue as constitutional issues have been raised by the petitioner./ILNS/SS/SNG

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