Calcutta High Court (Appellete Side)
Ambika Roy vs The Hon'Ble Speaker on 28 September, 2021
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(Appellate Side)
WPA(P) 213 of 2021
Pronounced on: 28.09.2021
Ambika Roy
...Petitioner
-Vs-
The Hon'ble Speaker, West Bengal Legislative Assembly and Ors.
...Respondents
Present:-
Mr. C.S. Vaidyanathan,
Senior Advocate (Through VC)
Mr. Billwadal Bhattacharyya,
Mr. Kabir Shankar Bose,
Mr. Amit Mishra,
Mr. Sarthak Raizada,
Mr. Akshay Nagranjan, Advocate (Through VC)
Ms. Kanika Singhal,
Mr. Nitish Raj,
Mr. Thajaswani C.B.,
Mr. Rishav Thakur,
Mr. Anish Mukar Mukherjee and
Mr. Saket Sharma, Advocates (Present in Court)
...for the petitioner
Mr. Anindya Kumar Mitra, Senior Advocate (Through VC)
Mr. Arif Ali,
Mr. Prabhat. Srivastava and
Mr. Sayantak Das, Advocates (Present in Court)
...for the Respondent No.2
Mr. Kishore Datta, learned Advocate General
[On 08.09.2021& 13.09.2021 ]
Mr. T.M. Sidiqui and
Mr. Debashish Ghosh, Advocates (Through VC)
...for respondent Nos. 1 & 3
2 WPA(P) 213 of 2021
Coram: THE HON'BLE JUSTICE RAJESH BINDAL,
CHIEF JUSTICE (ACTING)
THE HON'BLE JUSTICE RAJARSHI BHARADWAJ,
JUDGE
ORDER
CONTENTS
Sr. No. Particulars Para Nos. Page No.
Petitioner
3. Arguments on Behalf of the 10-16 9
4. Arguments on Behalf of the 17-19 13
5. Reply to the Arguments of the 20-24 15
Respondents by the Petitioner
6. Analysis
I - Regarding Disqualification 25-28 19
Petition
II - Rules of Procedure and 29-39 23
Conduct of Business in the
West Bengal Legislative
Assembly, Constitution of
Committees and Importance
Thereof
III - Constitutional Convention 40-49 33
IV - Judicial Review 50-67 41
V - Quo-Warranto 68-78 60
7. Directions 80-81 69
DUTY OF THE COURT
1. The duty of a Judge has been well-defined in Smriti
Chandrika in the following terms:
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As an experienced surgeon extracts a dart from the
body of a person by means of surgical instruments,
even so the Chief Justice must extract the dart of
inequity from a law suit."
(Narada vide Smriti Chandrika P. 30).
Asahaya explains this provision thus:
"As a skilful surgeon, conversant with the art of
extracting a dart, takes it out by the application of
surgical instruments and other manifold artful
practices, even though it may be difficult to get at,
it being invisible, even so a judge shall extract the
dart of inequity which has entered a law suit, by
employing the artful expedients of judicial
investigation.
[Narada Smriti SBE Series P. 39 footnote].
(Source: A compilation by Justice Dr. M. Rama Jois
published by Department of Post Graduate Studies and
Research in Law, Gulbarga University at the time of
introduction of new LLM Course in Bharateeya Nyaya
Darshan and Raja Dharma).
2. In State of Rajasthan v. Union of India, (1977) 3 SCC
592, Hon'ble the Supreme Court opined that merely because a
question has a political complication, it is no ground for the Court to
shirk from performing its duty under the Constitution. So long as a
question arises whether an authority under the Constitution has acted
within limits of its power or exceeded it, can certainly be decided by
the Court. It would be its constitutional obligation to do so. Relevant
Para 149 thereof is extracted below:
"149. ...It will, therefore, be seen that merely
because a question has a political colour, the Court cannot
fold its hands in despair and declare "Judicial hands off".
So long as a question arises whether an authority under the
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Constitution has acted within the limits of its power or
exceeded it, it can certainly be decided by the Court. Indeed
it would be its constitutional obligation to do so. It is
necessary to assert in the clearest terms, particularly in the
context of recent history, that the Constitution is supreme
lex, the paramount law of the land, and there is no
department or branch of Government above or beyond it.
Every organ of Government, be it the executive or the
legislature or the judiciary, derives its authority from the
Constitution and it has to act within the limits of its
authority. No one howsoever highly placed and no authority
howsoever lofty can claim that it shall be the sole judge of
the extent of its power under the Constitution or whether its
action is within the confines of such power laid down by the
Constitution. This Court is the ultimate interpreter of the
Constitution and to this Court is assigned the delicate task
of determining what is the power conferred on each branch
of Government, whether it is limited, and if so, what are the
limits and whether any action of that branch transgresses
such limits. It is for this Court to uphold the constitutional
values and to enforce the constitutional limitations. That is
the essence of the rule of law. To quote the words of Mr
Justice Brennan in Baker v. Carr. "Deciding whether a
matter has in any measure been committed by the
Constitution to another branch of Government or whether
the action of that branch exceeds whatever authority has
been committed, is itself a delicate exercise in constitutional
interpretation and is a responsibility of this Court as
ultimate interpreter of the Constitution". Where there is
manifestly unauthorised exercise of power under the
Constitution, it is the duty of the Court to intervene. Let it
not be forgotten, that to this Court as much as to other
branches of Government, is committed the conservation and
furtherance of democratic values. The Court's task is to
identify those values in the constitutional plan and to work
them into life in the cases that reach the Court. "Tact and
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wise restraint ought to temper any power but courage and
the acceptance of responsibility have their place too." The
Court cannot and should not shirk this responsibility,
because it has sworn the oath of allegiance to the
Constitution and is also accountable to the people of this
Country. There are indeed numerous decisions of this Court
where constitutional issues have been adjudicated upon
though enmeshed in questions of religious tenets, social
practices, economic doctrines or educational policies. The
Court has in these cases adjudicated not upon the social,
religious, economic or other issues, but solely on the
constitutional questions brought before it and in doing so,
the Court has not been deterred by the fact that these
constitutional questions may have such other overtones or
facets. We cannot, therefore, decline to examine whether
there is any constitutional violation involved in the
President doing that he threatens to do, merely on the facile
ground that the question is political in tone, colour or
complexion."
(emphasis supplied)
3. 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. It is in discharge of this duty that
this Court has been called upon to decide the issues raised in the
present petition.
4. The petitioner who is a sitting member of the State
Legislative Assembly and also advocate by profession has filed the
present petition praying for issuance of a writ of quo-warranto
challenging nomination of respondent No.2 as the Chairman of the
Committee on Public Accounts. Further prayer has been made for
quashing of order dated June 24, 2021 passed by the respondent No.3
vide which the objection petition filed by the petitioner to the
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returning officer regarding acceptance of nomination form of
respondent No.2 was rejected. Further prayer has been made for a
direction to the respondent No.1 to appoint/ nominate member of the
opposition party as Chairman of the Committee on Public Accounts.
ARGUMENTS ON BEHALF OF THE PETITIONER
5. Mr. C.S. Vaidyanathan, learned Senior Counsel appearing
for the petitioner submitted that the respondent No.2 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 the respondent No.2 defected from Bharatiya Janata Party (for
short, 'BJP') to All India Trinamool Congress (for short, 'AITC'). It is
so pleaded in para 8 of the petition and the same has not been
specifically denied by respondent No.2 though he has personal
knowledge of this fact. Even denial of respondent Nos. 1 and 3 to the
pleadings of the petitioner is general in nature and evasive. On June
17, 2021 a petition was filed by Suvendu Adhikari seeking
disqualification of respondent No.2 from the Assembly. On June 24,
2021, twenty MLAs including the respondent No.2 were elected as
members of Committee on Public Accounts. On July 09, 2021 the
Speaker nominated the respondent No.2 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.
6. Mr. Vaidyanathan, learned Senior Counsel further referred
to the declaration made by the Speaker vide which he nominated
respondent No.2 as the Chairman of the Committee on Public
Accounts. It is clearly mentioned therein that in the West Bengal
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Legislative Assembly there is a healthy and rich tradition, and
convention being followed for the last 54 years or so, to appoint a
member of the opposition as the Chairman of the Committee on
Public Accounts. As in the present Committee on Public Accounts, 7
out of 20 members belong to BJP i.e. the opposition, the respondent
No.2, taking him to be a member belonging to the BJP, was
nominated as the Chairman thereof. This clearly established the fact
that the Speaker had acted on the fact that respondent No.2 belonged
to BJP and keeping in view the healthy tradition he was nominated as
the Chairman. As the respondent No.2 had defected to AITC, the
order of nomination of respondent No.2 as the Chairman of the
Committee deserves to be set aside only on that ground. None of the
allegations made in the petition have been denied specifically by any
of the respondents.
7. Referring to the judgment of Hon'ble the Supreme Court in
Mohinder Singh Gill v. Chief Election Commissioner, New Delhi
And Others, (1978) 1 SCC 405 it was submitted that any order
passed by an authority can be justified only on the ground mentioned
therein and the reasons cannot be supplemented by way of an
affidavit. Hence, no affidavit filed by either of the respondents can be
relied upon to justify the order, which states differently than what is
contained in the order vide which respondent No.2 has been
nominated as the Chairman of the Committee on Public Accounts.
Admission made by the Speaker at the time of nomination of
respondent No.2 as the Chairman of the Committee on Public
Accounts clearly shows that it is an established constitutional
convention which can be enforced as a binding precedent. In fact as is
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admitted by the Speaker himself the convention was set keeping in
view the healthy traditions. The Speaker himself said in the order that
he is bound by the long convention and in fact it is good for the
healthy democracy as the Committee on Public Accounts verifies the
accounting. In support of his arguments reliance was placed upon
judgments of Hon'ble the Supreme Court in Supreme Court
Advocates-on-Record Association And Others v. Union of India,
(1993) 4 SCC 441; Supreme Court Advocates-on-Record
Association And Another v. Union of India, (2016) 5 SCC 1.
8. In support of the argument that the respondents having
failed to specifically denying the allegation regarding the respondent
No.2 being not the MLA belonging to BJP, the same should be
deemed to be admitted and adverse inference be drawn against the
respondents, reliance was placed upon Badat and Co. Bombay v.
East India Trading Co., AIR 1964 SC 538; Naseem Bano v. State
of U.P., 1993 Supplement (4) SCC 46.
9. Mr. Vaidyanathan, learned Senior Counsel 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 respondent No.2 from BJP to
AITC, which in terms of judgment of Hon'ble the Supreme Court in
Keisham Meghachandra Singh v. Hon'ble 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. Reliance was also placed upon judgment of
Hon'ble the Supreme Court in Rajendra Singh Rana v. Swami
9 WPA(P) 213 of 2021
Prasad Maurya, (2007) 4 SCC 270. It cannot be denied that it is a
matter of public importance. Once the allegations are specific against
the respondents, the onus shifts on them to prove otherwise. A public
interest litigation in such matter is maintainable specially in the form
of quo-warranto. Reliance was placed upon B.R. Kapur v. State of
T.N., (2001) 7 SCC 231, Central Electricity Supply Utility of
Odisha v. Dhobei Sahoo, (2014) 1 SCC 161.
10. Mr. Kishore Datta, learned Advocate General, appearing
for respondent Nos. 1 and 3 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 respondent No.2 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.
11. As far as the Committee on Public Accounts is concerned,
the members thereof are elected whereas Chairman is nominated by
the Speaker. Article 208 of the Constitution of India enables the
Speaker to frame Rules for conduct of business. These are the rules of
procedure to be followed in an Assembly. Rule 301 provides for the
10 WPA(P) 213 of 2021
functions of the Committee on Public Accounts whereas Rule 302
provides for its constitution. Rule 255 provides that the Chairman of
the Committee shall be appointed by the Speaker from amongst the
members of the Committee. He further submitted though Rule 302
provides that the members of the Committee shall be elected from
amongst its members according to the principle of proportional
representation. However, in the case in hand there were only 20
nominations filed, hence, all were declared elected. The question of
proportional representation did not arise. The term 'Member' has been
defined in the Rule. The process of election as the members of the
Committee is to be followed in case there are more than 20
nominations filed, whereas the Chairman is to be nominated by the
Speaker.
12. Article 212 of the Constitution of India bars scrutiny by the
Court of any proceedings on the floor of the House. At the most the
petitioner alleges irregularities in the procedure. The issue cannot be
raised in court. The Speaker is an officer heading the State Assembly.
Article 178 of the Constitution of India provides for that. In support of
the argument reliance was placed upon Nabam Rebia & Bamang
Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly,
(2016) 8 SCC 1; State of Kerala v. K. Ajith and Others, (2021)
SCC OnLine SC 510. As to what is meant by proceedings on the
floor of the House in terms of Article 212 of the Constitution of India
reference was made to commentary in May's Parliamentary
Practice, 24th Edition, judgment of Orissa High Court in Godavaris
Misra v. Nandakisore Das, AIR 1953 Orissa 111 was also referred
to. The format of the nomination paper as member of the Committee
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on Public Accounts was referred to show that it does not provide for
any column for the candidate to mention the name of the party to
which he belongs to. In fact it is not mandatory. The members can be
belonging to only one party. At times during previous period there had
been practice of having Chairman of the Committee on Public
Accounts who were belonging to the opposition party but that cannot
be termed as a constitutional convention. He could not deny the fact
recorded in the order passed by the Speaker that the respondent No.2
was nominated as the Chairman of the Committee on Public Accounts
being MLA belonging to BJP. As far as his disqualification is
concerned on account of his alleged defection to AITC, the petition is
still pending consideration before the Speaker.
13. It was further alleged that in the case in hand the petitioner
had filed objections to the nomination of respondent No.2 for being
elected as member of the Committee on Public Accounts, which were
rejected. He being interested party cannot file a petition in public
interest. Again while referring to the commentary from May's
Parliamentary Practice, he submitted that whatever action the
Speaker takes the same can be challenged only by way of substantive
motion in the Assembly. Kaul - Practice & Procedure in
Parliament, 6th Edition was also referred to. 'Motion' has been well
explained in the Rules of Business to mean the proposal by a member
for consideration of the assembly relating to any matter which may
be discussed there.
14. The judgment in Mohinder Singh Gill's case (supra) as
cited by Mr. Vaidyanathan, learned Senior Counsel appearing for the
petitioner was distinguished stating that the case in hand is not a
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service matter. It was the prerogative of the Speaker to have
nominated any of the member of the Committee as the Chairman,
thereof. No reasons were required to be given in support. It is not a
case of constitutional convention as is sought to be pleaded by the
petitioner. While referring to judgment of Hon'ble the Supreme Court
in Supreme Court Advocates-on-Record Association's (1993) case
(supra) he submitted that there is no doubt that the constitutional
convention can be enforced but the case in hand does not fall in that
category. It is merely a case of rules of procedure and conduct of
business in the assembly. Even Parliamentary practice was not held to
be Constitutional Convention by the Supreme Court in Consumer
Education & Research Society v. Union of India, (2009) 9 SCC
648.
15. A writ of quo-warranto can be issued only where a person
is found to be usurping a public office, which is created either by the
Constitution or by the Statutory rules. All offices cannot be said to be
public office. In the case in hand the only eligibility required to be a
member or chairman of the Committee on Public Accounts is that the
person concerned has to be member of the Legislative Assembly. The
rules of business do not provide that a member of the opposition party
has to be Committee's chairman. In support of the argument that a
writ of quo-warranto can be issued only where the person is found to
be usurping the office in violation of any statutory rules, reliance was
placed upon Bharati Reddy v. State of Karnataka, (2018) 6 SCC
162. Public office is as created under any statutory rules or the
Constitution and not merely by Rules of Business.
13 WPA(P) 213 of 2021
16. Reliance was also placed upon P.S. Venkataswamy Setty
(Dr.) v. University of Mysore, AIR 1964 Mys 159; Sashi Bhusan
Roy v. Pramathanath Banerjee, 72 CWN 50. The aforesaid
judgments have been referred to by Hon'ble the Supreme Court in
Ram Singh Saini v. H.N. Bhargava, (1975) 4 SCC 676. Judgments
cited by the petitioner in B.R. Kapur's and Central Electricity
Supply Utility of Odisha's cases (supra) are distinguishable for the
reason that in the aforesaid judgments the persons involved were
holding either statutory or constitutional positions. Judgment of
Hon'ble the Supreme Court in State of Punjab v. Satya Pal Dang
and Ors., AIR 1969 SC 903 was referred to submit that the rules of
procedure cannot be read as Clauses in the Constitution. These are not
mandatory and are merely directory in terms of judgment of the Patna
High Court in Karpoori Thakur and Another v. Abdul Ghafoor
and Others, AIR 1975 PATNA 1.
17. Mr. Anindya Kumar Mitra, learned Senior Advocate
appearing for respondent No.2 submitted 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 the respondent No.2. Even in the
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objections filed by the petitioner to the nomination of respondent No.2
as member of the Committee on Public Accounts no such plea was
raised. 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 (for short, 'the Rules of Business')
that nomination has to be proposed and seconded by the member of
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 Hon'ble 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.
18. Even if some practice is established by the petitioner, the
same cannot be taken to be a constitutional convention. Even if it is
so, a writ petition filed to challenge the proceedings in a State
Assembly, is barred in terms of Article 212 of the Constitution of
India as the declaration of the Chairman of the Committee was made
at the floor of the House. It shall be treated as proceedings in the
legislature. In support of the arguments reliance was placed upon
Godavaris Misra v. Nandakisore Das's case (supra); A.M. Paulraj
v. The Speaker, Tamil Nadu Legislative Assembly & The
Secretary, Tamil Nadu Legislative Assembly, AIR 1986 Madras
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248 and Pandit M.S.M. Sharma v. Dr. Krishna Sinha, AIR 1960
SC 1186.
19. It was further argued by Mr. Mitra, learned Senior Counsel
that a prayer for issuance of writ of quo-warranto is not maintainable
for the reason that it is not a public post. Such a prayer is available
only if there are certain eligibility conditions laid down in the Rules
and the person has been appointed in violation thereof. There are no
such pleadings available. In fact, the present litigation is not a public
interest litigation rather a private interest litigation as the petitioner
himself had filed objections to challenge nomination of respondent
No.2 as the member of the Committee on Public Accounts and the
same was rejected. Hence, he is an interested party. As to what can be
termed to be a litigation filed in public interest, reliance was placed
upon judgment of Hon'ble the Supreme Court in S.P. Anand v. H.D.
Deve Gowda, (1996) 6 SCC 734.
REPLY TO THE ARGUMENTS OF THE RESPONDENTS BY
THE PETITIONER
20. In response, Mr. Vaidyanathan, learned Senior Counsel
appearing for the petitioners submitted that there is no response by
either of the respondents that the respondent No.2 had left 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. Further relying upon a judgment of
Hon'ble the Supreme Court in Raja Ram Pal v. Hon'ble Speaker,
Lok Sabha and Others, (2007) 3 SCC 184 he submitted that there is
distinction between procedural and substantial irregularities. In case of
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substantive irregularities the Court can always interfere. The
parameters of judicial review in the Parliament/ Assembly
proceedings have been well laid down. Even the proceedings in the
House can also be examined. Reliance was placed upon judgment of
Hon'ble the Supreme Court in Amarinder Singh v. Special
Committee, Punjab Vidhan Sabha, (2010) 6 SCC 113.
21. Responding to the argument raised by learned Advocate
General he submitted that there is a difference between Clauses (1)
and (2) of Article 212. As far as Clause (1) is concerned, he submitted
that the power of judicial review is available. As far as Clause (2) is
concerned, the officer who passed the order, may not be called in
Court but his action can always be challenged. Article 361 of the
Constitution of India gives protection to the President, Governor and
the Raj Pramukh with reference to actions taken in their official
capacity. However, even if they have the protection, their actions as
such are not saved. The validity thereof can always be examined.
Reliance was placed upon judgment of Hon'ble the Supreme Court in
B.R. Kapur's case (supra). It was a case in which the action of the
Governor in calling a candidate to be the Chief Minister was under
challenge. In case the office occupied by the person concerned is of
public nature, a writ of quo-warranto always lies. The principles
applicable for judicial review of the action of the Speaker were subject
matter of consideration before the Hon'ble the Supreme Court in
Rojer Mathew v. South Indian Bank Limited, (2020) 6 SCC 1. In
that decision of the Speaker of the Lok Sabha opining a bill to be a
money bill which otherwise is treated as final, was considered by
Hon'ble the Supreme Court. It is to keep the constitutional scheme in
17 WPA(P) 213 of 2021
order. Once the power of judicial review is available the bar under
Article 212 is not possible.
22. With reference to the constitution of committees by the
Assembly reference was made to Article 194 of the Constitution of
India which talks about constitution of committees. Hence, to claim
that it is something which is result of only the Rules of Business, is
totally misconceived as it has origin from the Constitution itself.
Judgment of Hon'ble the Supreme Court in K. Lakshminarayanan's
case (supra) was relied upon to submit that the argument of
constitutional conventions was even examined with reference to an
Act of the Parliament. It was a case in which nomination to the
Puducherry Assembly was in question with reference to an Act framed
by the Parliament. The issue was related to only one State. In the case
in hand the issue relates to exercise of discretion by the Speaker with
reference to nomination of Chairman of the Committee on Public
Accounts which is referable to Article 194 of the Constitution of
India. Hence, any convention will be treated as a constitutional
convention. Even if Rule 255 of the Rules of Business does not
provide that a member of the opposition party will be the chairman of
the Committee on Public Accounts but the convention guides the
exercise of power by the Speaker. He also acted in the same manner,
however, keeping his eyes shut, for the reasons best known to him,
about the fact that the person being nominated as Chairman of the
Committee on Public Accounts on that day had defected from BJP to
AITC. His nomination as Chairman was made treating him as MLA
belonging to BJP Party, which action on papers was in terms of the
convention being followed. Any constitutional convention need not be
18 WPA(P) 213 of 2021
related to the entire country as it can be State specific as well. There
are no pleadings in the objections filed by the respondents, otherwise
there are similar conventions in the Parliament as well as the State
Legislatures where certain committees are held by members of the
parties in opposition. Referring to the judgment of Hon'ble the
Supreme Court in Supreme Court Advocates-on-Record
Association's (1993) case (supra) he submitted that even in the
aforesaid case it was the statement made by the then Law Minister and
the Home Minister on the floor of the House, which was considered as
convention.
23. Regarding Chairman of the Committee on Public Accounts
being a public office he submitted that though such an issue was not
raised by the respondents in the objections filed but still the argument
raised by them need to be answered. Article 194 of the Constitution of
India provides for constitution of committees in the Assembly. Article
208 enables framing of Rules of Business. Rule 252-255 of the Rules
of Business provide for constitution of committees. They are all
termed as officers. The Chairman of the Committee on Public
Accounts performs a very vital function. This is an office
contemplated under the Constitution of India. As all details cannot be
provided in the Constitution, the conventions started for maintaining
healthy democracy. Any public office means a person manning the
same discharges public functions. Powers vested with the Chairman of
the Committee on Public Accounts are multifarious. He can even
summon the officers and has to examine the budget and the accounts
to be presented before the Assembly. Rule 301 of the Rules of
Business clearly provides for the functions of Committee on Public
19 WPA(P) 213 of 2021
Accounts. Even Section 2(17)(g) of CPC also defines on as to who is a
public officer. Even a member of Parliament was also held to be a
public officer. Reliance was placed on the judgment of Hon'ble the
Supreme Court in P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4
SCC 626 for consideration of the issue. The duties attached to the
office are to be considered. If the same are considered in the present
case, there cannot be any other opinion except that the Chairman of
the Committee on Public Accounts discharges public functions.
Hence, for considering his eligibility to hold the post a writ of quo-
warranto will be maintainable. It is a case in which the established
admitted constitutional convention has been violated. The office is
permanent, the persons may come and go. The office in question is a
public office. In any case the members of the Legislative Assembly
are public representatives elected to serve the public at large in the
democratic set up.
24. Heard learned Counsel for the parties and perused the
relevant referred record.
ANALYSIS
I - REGARDING DISQUALIFICATION PETITION
25. In Para 21 of Keisham Meghachandra Singh's case
(supra) Hon'ble the Supreme Court observed that a member of the
Assembly found to be disqualified, his continuance in the Assembly
even for a day is illegal and unconstitutional and as a consequence his
holding of office as minister would be illegal. It is the duty of the
Court to protect the Constitution and its values and the principles of
democracy, which is a basic feature of the Constitution.
20 WPA(P) 213 of 2021
26. In Para 29 of the aforesaid judgment Hon'ble the Supreme
Court opined that the Speaker acting as a Tribunal under the Tenth
Schedule of the Constitution of India is bound to decide
disqualification petition within a reasonable period and the same was
held to be three months, from the date on which the petition is filed.
The period was fixed keeping in view the constitutional objectives of
disqualifying persons who have failed to adhere to the provisions of
Tenth Schedule. Relevant Paras 21 and 29 thereof are extracted below.
"21. Finding that the life of the Assembly was
about to end and that if the 13 members were found to be
disqualified their continuance in the Assembly even for a
day would be illegal and unconstitutional, and that their
holding of office as Ministers would also be illegal, the
Court stated that it was bound to protect the Constitution
and its values, and the principles of democracy, which is a
basic feature of the Constitution, and then went on to
declare that the writ petition will stand allowed with a
declaration that the 13 members who met the Governor on
27.08.2003 stand disqualified from the U.P Legislative
Assembly w.e.f. 27.08.2003 on the ground contained in
paragraph 2(1)(a) of the Tenth Schedule.
29. A reading of the aforesaid decisions,
therefore, shows that what was meant to be outside the pale
of judicial review in paragraph 110 of Kihoto Hollohan
(supra) are quia timet actions in the sense of injunctions to
prevent the Speaker from making a decision on the ground
of imminent apprehended danger which will be irreparable
in the sense that if the Speaker proceeds to decide that the
person be disqualified, he would incur the penalty of
forfeiting his membership of the House for a long period.
Paragraphs 110 and 111 of Kihoto Hollohan (supra) do not,
therefore, in any manner, interdict judicial review in aid of
the Speaker arriving at a prompt decision as to
21 WPA(P) 213 of 2021
disqualification under the provisions of the Tenth Schedule.
Indeed, the Speaker, in acting as a Tribunal under the Tenth
Schedule is bound to decide disqualification petitions
within a reasonable period. What is reasonable will depend
on the facts of each case, but absent exceptional
circumstances for which there is good reason, 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 if the constitutional
objective of disqualifying persons who have infracted the
Tenth Schedule is to be adhered to. This period has been
fixed keeping in mind the fact that ordinarily the life of the
Lok Sabha and the Legislative Assembly of the States is 5
years and the fact that persons who have incurred such
disqualification do not deserve to be MPs/MLAs even for a
single day, as found in Rajendra Singh Rana (supra), if they
have infracted the provisions of the Tenth Schedule."
(emphasis supplied)
27. In Rajendra Singh Rana's case (supra) as well the issue
was regarding pendency of the proceedings for disqualification of
certain MLAs before the Speaker of the Assembly. The matter was
kept pending for years together. Instead of remanding the matter back
to the Speaker as their term was going to expire very soon, Hon'ble
the Supreme Court had taken up the task of deciding on the question
of their disqualification. It was observed that the Court is bound to
protect the Constitution, its values and the democratic principles,
which is the basic feature of the Constitution. Para 44 thereof is
extracted below.
"44. Normally, this Court might not proceed to
take a decision for the first time when the authority
concerned has not taken a decision in the eye of the law and
22 WPA(P) 213 of 2021
this Court would normally remit the matter to the authority
for taking a proper decision in accordance with law and the
decision this Court itself takes on the relevant aspects. What
is urged on behalf of the Bahujan Samaj Party is that these
37 MLAs except a few have all been made Ministers and if
they are guilty of defection with reference to the date of
defection, they have been holding office without authority,
in defiance of democratic principles and in such a situation,
this Court must take a decision on the question of
disqualification immediately. It is also submitted that the
term of the Assembly is coming to an end and an
expeditious decision by this Court is warranted for
protection of the constitutional scheme and constitutional
values. We find considerable force in this submission."
28. The issues raised in the present petition could very well
be sorted out in case the Speaker had decided the petition pending
before him for disqualification of respondent No.2 from the
Assembly, expeditiously. On account of his being member of BJP in
the Legislative Assembly that he has been appointed as Chairman of
the Committee on Public Accounts. 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. Even for decision of the petitions filed for disqualification of a
23 WPA(P) 213 of 2021
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. It is because of inaction of the Speaker that this
Court has been approached in this avoidable litigation. In the case in
hand, petition filed for disqualification of the respondent No.2 with
allegations of his defection from BJP to AITC is pending before the
Speaker since June 17, 2021. Three months period expired on
September 16, 2021.
II - RULES OF PROCEDURE AND CONDUCT OF BUSINESS
IN THE WEST BENGAL LEGISLATIVE ASSEMBLY,
CONSTITUTION OF COMMITTEES AND IMPORTANCE
THEREOF
29. The relevant provisions of the Constitution of India are
extracted below:
"CONSTITUTION OF INDIA
208. Rules of procedure.--(1) A House of the
Legislature of a State may make rules for regulating,
subject to the provisions of this Constitution, its procedure
and the conduct of its business.
(2) Until rules are made under clause (1), the
rules of procedure and standing orders in force
immediately before the commencement of this Constitution
with respect to the Legislature for the corresponding
Province shall have effect in relation to the Legislature of
the State subject to such modifications and adaptations as
may be made therein by the Speaker of the Legislative
Assembly, or the Chairman of the Legislative Council, as
the case may be.
24 WPA(P) 213 of 2021
(3) In a State having a Legislative Council the
Governor, after consultation with the Speaker of the
Legislative Assembly and the Chairman of the Legislative
Council, may make rules as to the procedure with respect
to communications between the two Houses.
30. The relevant provisions of the Rules of Procedure and
Conduct of Business in the West Bengal Legislative Assembly are
extracted below:
"Definition
"Assembly" means the West Bengal Legislative
Assembly;
"Assembly Committee" means a committee which is
appointed or elected by the House or nominated by the
Speaker and which works under the direction of the
Speaker and presents its report to the House or to the
Speaker, and the Secretariat for which is provided by the
Assembly Secretariat;
"Member" means a member of the West Bengal
Legislative Assembly;
"Member in charge of the Bill" means the member who
has introduced the Bill and any Minister in the case of a
Government Bill;
"Motion" means a proposal made by a member for the
consideration of the Assembly relating to any matter which
may be discussed by the Assembly, and includes an
amendment;
x x x x
Chairman of Committee
255. (1) The Chairman of a Committee shall be
appointed by the Speaker from amongst the members of
the Committee:
Provided that if the Deputy Speaker is a member of
the Committee, he shall be appointed Chairman of the
Committee.
25 WPA(P) 213 of 2021
(2) If the Chairman is for any reason unable to
act, the Speaker may appoint another Chairman in his
place.
(3) If the Chairman is absent from any sitting
the Committee shall choose another member to act as
Chairman for that sitting.
x x x x
Power to take evidence or call for documents
266. (1) A witness may be summoned by a order
signed by the Principal Secretary and shall produce such
documents as are required for the use of a Committee.
(2) It shall be in the discretion of the Committee
to treat any evidence tendered before it as secret or
confidential.
(3) No document submitted to the Committee
shall be withdrawn or altered without the knowledge and
approval of the Committee.
x x x x
Committee on Public Accounts
Functions
301. (1) There shall be a Committee on Public
Accounts for the examination of accounts showing the
appropriation of sums granted by the House for the
expenditure of the State Government, the Annual Finance
Accounts of the State Government and such other accounts
laid before the House as the Committee may think fit.
(2) In scrutinising the Appropriation Accounts
of the State Government and the report of the Comptroller
and Auditor-General thereon, it shall be the duty of the
Committee to satisfy itself-
(a) that the moneys shown in the accounts
as having been disbursed were legally
available for, and applicable to, the service
or purpose to which they have been applied
or charged;
26 WPA(P) 213 of 2021
(b) that the expenditure conforms to the
authority which governs it; and
(c) that every re-appropriation has been
made in accordance with such rules as may
be prescribed by the Governor or by the
Finance Minister, as the case may be.
(3) It shall also be the duty of the Committee-
(a) to examine the statement of accounts
showing the income and expenditure of State
corporations, trading and manufacturing
schemes, concerns and projects together
with the balance sheets and statements of
profit and loss accounts which the Governor
may have required to be prepared or are
prepared under the provisions of the
statutory rules regulating the financing of a
particular corporation, trading or
manufacturing scheme or concern or project
and the report of the Comptroller and
Auditor-General thereon;
(b) to examine the statement of accounts
showing the income and expenditure of
autonomous and semi-autonomous bodies,
the audit of which may be conducted by the
Comptroller and Auditor-General of India
either under the directions of the Governor
or under an Act of Parliament or of the State
Legislature or under any law in force under
Article 372 of the Constitution; and
(c) to consider the report of the Comptroller
and Auditor-General in cases where the
Governor may have required him to conduct
an audit of any receipts or to examine the
accounts of stores and stocks.
(4) If any money has been spent on any service
during a financial year in excess of the amount granted by
27 WPA(P) 213 of 2021
the House for that purpose, the Committee shall examine
with reference to the facts of each case the circumstances
leading to such an excess and make such recommendation
as it may deem fit.
Constitution -
302. The Committee shall consist of twenty
members. They shall be elected by the House from among
its members according to the principle of proportional
representation by means of the single transferable vote in
accordance with the directions framed in this behalf by the
Speaker. The term of office of members of the Committee
shall be one year, but any member shall be eligible for re-
election:
Provided that a Minister shall not be elected a
member of the Committee, and that if a member, after his
election to the Committee, is appointed a Minister he shall
cease to be a member of the Committee from the date of
such appointment."
31. Article 208 of the Constitution of India enables the House
of Legislature of a State to make Rules for regulating its procedure
and conduct of business. As is evident from the Rules of Business,
Chapter XXV thereof provides for Assembly Committees. Rule 252
provides that the members of the Committees shall be either appointed
or elected or nominated by the Speaker. Rule 255 provides that the
Chairman of a Committee shall be appointed by the Speaker from
amongst the members of the committee. The sittings are to be held
within the precincts of the House. Any change in place has to be with
the approval of the Speaker. In terms of Rule 266 the Committee may
summon any witness to produce any documents required for its use by
the Committee. Any evidence submitted or produced before the
28 WPA(P) 213 of 2021
Committee can be kept secret or confidential at the discretion of the
Committee. It can also administer oath of affirmation to the witness
being examined by it. Any business pending before a Committee shall
not lapse by reason only of prorogation of the House.
32. Rules 284 - 290 of the Rules of Business provide for
constitution of Business Advisory Committee. Rules 291 - 298
provide for constitution of Select Committee on bills. Rules 298A -
300 provide for Committee on Papers laid on the table of the House.
33. Rules 301 - 303 of the Rules of Business provide for
constitution of Committee on Public Accounts, the one with which we
are concerned in the present case. The Committee on Public Accounts
is constituted for examination of accounts showing the appropriation
of sums granted by the House for the expenditure of the State
Government, annual finance accounts of the State Government and
such other accounts laid before the House, as the Committee may
think fit. While scrutinizing appropriation accounts of the State
Government and the report of the Comptroller and Auditor General
(for short, 'CAG') thereon, it shall be the duty of the Committee to
satisfy itself.
(i) that the money shown in the accounts as
have been disbursed, were legally available for the
purpose to which they have been applied or charged.
(ii) the expenditure conforms to the authority
which governs it.
(iii) reappropriation has been made in
accordance with such rules as may be prescribed.
34. The Committee is also duty bound to examine statement
of accounts showing income and expenditure of the State
29 WPA(P) 213 of 2021
Corporations together with the profit and loss accounts and the
Balance Sheets. It also has the power to examine statement of
accounts showing income and expenditure of autonomous and semi-
autonomous bodies, which may be audited by the CAG and to
consider the report of the CAG.
35. As per Rule 302 of the Rules of Business the Committee
is to consist of 20 members, to be elected from amongst the members
according to principle of proportional representation. The term of the
Committee has been specified as one year. Rule 303 of the Rules of
Business provide for the timeline for submission of reports to the
House.
36. Rules 303A to 310ZI of the Rules of Business further
provide for constitution of various other Committees.
37. In terms of Rule 255 of the Rules of Business, the
Chairman of the Committee is to be appointed by the Speaker from
amongst the members of the Committee. As per Rule 302 the
Committee on Public Accounts is consisting of 20 members. It may be
out of place if not mentioned here that at the time of hearing it was
submitted by learned Counsel for the respondents that there being only
20 nominations filed for being members of the Committee on Public
Accounts, no election was held. The Speaker being the authority in
terms of Rule 255 of the Rules of Business appointed the Chairman
thereof. It was so done on July 09, 2021. While noticing certain facts
regarding constitution of Committees and its Chairmen, the Speaker
declared that he has been given the power to appoint
Chairman/Chairperson from amongst the members elected to different
Committees. In the case of the Committee on Public Accounts, the
30 WPA(P) 213 of 2021
Speaker mentioned that a very healthy and rich tradition, and
convention have grown for the last 54 years or so to appoint a member
of the Opposition as the Chairman of the Committee. 7 out of 20
members of the Committee on Public Accounts belong to BJP, the
party in opposition. Following the convention as established, he as the
Speaker, is to appoint a person from amongst the said seven members
as the Chairman of the Committee on Public Accounts. As the
appointment has to be of a member holding outstanding experience in
legislative and parliamentary affairs and the Committee on Public
Accounts enjoys a place of pride in the Committee system, taking all
factors into account, the respondent No.2 having vast experience in
parliamentary affairs and belonging to the legislative party in
opposition, was nominated as the Chairman to head that Committee.
In addition, the Chairpersons of other Committees were also
nominated.
38. Importance of role of committees constituted in the
Parliament and the State Assembly has been considered by Hon'ble
the Supreme Court in Ajit Mohan and Others v. Legislative
Assembly National Capital Territory of Delhi and Others, 2021
SCC OnLine SC 456. Relevant paras thereof are extracted below:
"175. The committees constituted by legislative
bodies like the Assemblies for the States and Parliament
for the Union, perform a key role in the functioning and
the working of the Houses. In fact, it is often said that the
real work is done in these committees - away from the din
of the Parliament. These committees witness more
vociferous reflection of the divergent view, slightly away
from public gaze. It is said that there is a more reasonable
and applied discussion in these committees. This is an
31 WPA(P) 213 of 2021
aspect recognized all over the world qua the functioning
of such committees. These committees are bodies which
have the capability to undertake wide-scale consultative
processes, engage in dialogue, and build consensus
through intelligent deliberations. In fact, such an exercise
is intrinsic to the legislative process where public policies
would require detailed studies and concentration. These
committees undertake deliberations and provide
recommendations as precursors to legislative activities,
and the effective working of committees is a prelude to
the core working of the Assemblies.
176. The committees are an extension of the
legislature itself and do informed work. Their
significance has been exhaustively dealt with in Kalpana
Mehta which we have extracted hereinabove. US
Representative James Shannon's words were noted with
approval in the judgment, recognising that "around the
world there is a trend to move toward reliance on
committees to conduct the work of parliament, and the
greatest reason for this trend is a concern for efficiency."
It is not possible for us to accept the contention of the
petitioners to create an artificial division between
Assembly's core/essential and non-essential functions,
with any restrictive clauses being placed on the
deliberations of the committees. Such water-tight
compartmentalisation is not advisable. Unless the
committee embarks on a course completely devoid of its
functional mandate specified by the Assembly, or the
Assembly itself lacks jurisdiction to deal with the subject
matter, we are of the view that the widest amplitude must
be given to the functioning of these committees. It is the
parliamentary committee system that has been recognised
as a creative way of parliaments to perform their basic
functions. The same principle would apply, even if it is to
some extent beyond their legislative domain. This is
because they will not be able to make any valid
32 WPA(P) 213 of 2021
legislative recommendations in the absence of
competence over the subject matter. However, they may
debate aspects which may be a reflection of their sense
and consequently the sense of the House, if so adopted by
the House."
(emphasis supplied)
39. 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. Hon'ble 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 legislature itself and do
informed work. These Committees are consisted 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
33 WPA(P) 213 of 2021
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.
III - CONSTITUTIONAL CONVENTION
40. Long arguments and counter-arguments were raised on the
issue as to whether there is a constitutional convention, which has
been violated. It is the case of both the parties that the constitutional
conventions are enforceable in Court. As to what is a constitutional
convention and how it can be established is no more res integra.
41. The question as to whether an established constitutional
convention can be read in Articles 124(2) and 217(1) of the
Constitution in the matter of appointment of Judges of the Supreme
Court and High Courts was considered by Hon'ble the Supreme Court
in Supreme Court Advocates-on-Record Association's (1993) case
(supra). For that purpose test for existence of a convention laid down
by Sir Ivor Jennings was based on three questions, namely, (i) what
are the precedents? (ii) did the actors in the precedents believe that
they were bound by a rule? And (iii) is there a reason for the rule?
Finding that the tests as laid down by Sir Ivor Jennings were fully
satisfied in the aforesaid, Hon'ble the Supreme Court opined that the
convention is established to the effect that opinion and
recommendation of the Chief Justice of India in the matter of
appointment of Judges is binding on the executive. It was found that
there were precedents for the period from 1950-1959 and from 1983-
1993, when almost all appointments were made with the concurrence
of the Chief Justice of India. Hence, there were precedents. As regards
the second test, it was noticed that even on the floor of the House of
34 WPA(P) 213 of 2021
the Rajya Sabha it was stated by the then Home Minister and the then
Law Minister that executive was bound by the recommendations made
by the judiciary. As far as the third test is concerned, it was found that
the Chief Justice of a High Court and Chief Justice of India are well
equipped to express their views and tender advice on the suitability of
the person. The independence of judiciary is paramount and the same
can be maintained if the executive does not have final word on the
appointments.
42. The issue regarding constitutional convention was also
considered by Hon'ble the Supreme Court in K.
Lakshminarayanan's case (supra). One of the questions framed
therein was as to whether there was a constitutional convention to
consult the government of Puducherry before making nomination by
the Central Government, on the strength that on earlier occasions the
nominations were made by the Central Government in consultation
with the government of Puducherry. It was opined therein, that the
constitutional conventions are born and recognized in working of the
Constitution. These always aim to achieve higher values and
objectives enshrined in the Constitution. The conventions are not
static but can change with the change in constitutional values and
interpretations. The conventions cannot run contrary to express
provisions of the Constitution or underline constitutional objectives.
Para 70 thereof is extracted below:
"70. The constitutional conventions are born and
recognised in working of the Constitution. The purpose and
object of constitutional convention is to ensure that the legal
framework of the Constitution is operated in accordance
with constitutional values and constitutional morality. The
35 WPA(P) 213 of 2021
constitutional conventions always aims to achieve higher
values and objectives enshrined in the Constitution. The
conventions are not static but can change with the change in
constitutional values and constitutional interpretations. No
constitutional convention can be recognised or implemented
which runs contrary to the expressed constitutional
provisions or contrary to the underlined constitutional
objectives and aims which the Constitution sought to
achieve."
43. In Consumer Education & Research Society's case
(supra) Hon'ble the Supreme Court observed that the recommendation
of Bhargava Committee in November 1955 was merely a
parliamentary procedure and not a constitutional convention. It was a
case where power of Parliament to frame law was pitched against the
procedure. It was held that Parliament's power to frame law is
supreme and it cannot be held to be unconstitutional merely because
some procedure, which may have been followed earlier, was not
followed this time. The case in hand is not pertaining to enactment or
amendment of any law, hence, distinguishable.
44. To appreciate the issue it would be relevant to extract
contents of declaration made by the Speaker with reference with
constitution of various committees and the Chairmen thereof. The
same is extracted below:
"CONSITUTION OF ASSEMBLY COMMITEES
Mr. Speaker : Now, announcement relating to
Assembly Committees. Hon'ble Members, election to the
four Financial Committees for the year 2021-2022 of this
Assembly have been completed and the Members have
been declared elected to those Committees. The names of
the elected Members have already been displayed at the
Notice Board.
36 WPA(P) 213 of 2021
I have also nominated the Members of other
traditional Assembly Committees and 26 departmentally
related Standing Committees for the year 2021-2022. The
composition of those Committees will be intimated to the
Members by the Assembly Secretariat in due course.
Before announcing the names of
Chairmen/Chairpersons of different Committees of West
Bengal Legislative Assembly including four financial
Committees, I would like to share with the House some
relevant facts. A letter dated 14.6.2021 from the Hon'ble
Chief Opposition Whip has been received by me intimating
therein the consent of the Leader of the Opposition to
nominate a particular member as Chairmen of Public
Accounts Committee of West Bengal Legislative
Assembly. The letter had been addressed at a time when
election process for election to the four financial
Committees including the Public Accounts Committee had
not been started and the media was informed of the
contents of the matter. Thereafter, there has been much
speculation in the media on the matter.
Hon'ble Members, Sub-rule(1) of Rule 255 of the
Rules of Procedure and Conduct of Business in the West
Bengal Legislative Assembly empowers the Speaker to
appoint the Chairman/Chairperson of a Committee
including the financial Committee(s). In the case of other
Committees of the House excluding the financial
Committees, the Speaker nominates the different Members
of the Committee and appoints the Chairmen/Chairpersons
of the Committees from amongst the Members so
nominated. But in the case of four financial Committees,
the sphere of work of the Chair on this particular issue
becomes restricted to a great extent - the Chair has to
make the appointment of Chairman/Chairperson from
amongst the Members elected by the House to that
particular Committee. In the case of Committee on Public
Accounts in West Bengal Legislative Assembly, a very
37 WPA(P) 213 of 2021
healthy and rich tradition and convention have grown for
the last 54 years or so, to appoint a Member of the
Opposition as the Chairman of the Committee. In the
present Committee on Public Accounts, out of 20
Members, 7 Members belonging to Legislature Party of
Bharatiya Janata Party in Opposition, have been elected to
the Committee. Following the convention so established,
the Chair has to appoint a person from amongst the said 7
Members, as the Chairman of the present Committee on
Public Accounts.
09.07.2021
5.45/50
AC
Mr. Speaker:- (Contg.).. The appointment of
Chairman/Chairperson of a Committee is made amongst
the Members holding outstanding experience in Legislative
and Parliamentary Affairs. For this purpose, the Chair has
to apply his mind and make a judicious decision.
Hon'ble Members, as you know, the Committee on
Public Accounts enjoys a place of pride in our Committee
system and this year is the centenary year of its inception.;
taking all these into account, I think that Shri Mukul Roy,
Hon'ble Member, having vast experience in parliamentary
affairs belonging to the Legislatures Party of Bharatiya
Janata Party in opposition, is the competent person to head
the present Committee on Public Accounts of this House.
(--At this stage Hon'ble Members of the Bharatiya Janata
Party walked out from the House)
Now, I declare the name of the Chairman/Chairperson of
all the Committees for the year 2021-2022.
38 WPA(P) 213 of 2021
Sl Name of the Name of the
No. Committees Chairman/Chairper
son
1 Committee on Shri Mukul Roy
Public
Accounts
2- *** ***
(emphasis supplied)"
45. A perusal of the contents of the aforesaid declaration
made by the Speaker shows that he specifically stated that certain
members to the Financial Committee have been elected whereas
certain Members of the traditional Assembly Committees have been
nominated by him. He further referred to the fact that Rule 255(1) of
the Rules of Business empowers the Speaker to appoint
Chairman/Chairperson of a Committee including the Financial
Committee(s). He further specifically noted that in case of Committee
on Public Accounts in the West Bengal Legislative Assembly, a very
healthy and rich tradition, and convention have grown in the last 54
years or so, to appoint a Member of the Opposition as the Chairman
of the Committee. 7 out of 20 Members of the aforesaid Committee
belong to BJP, the party in opposition. Following the established
convention, the Speaker had to appoint a person from amongst the 7
Members as the Chairman of the Committee on Public Accounts. He
further mentioned that Committee on Public Accounts enjoys a
special status in the committee system. Taking into account his
experience in parliamentary affairs, the respondent No. 2 being
Members of the Assembly belonging to BJP was found to be the most
39 WPA(P) 213 of 2021
competent person to head that Committee. Hence, he was appointed
as such.
46. If the tests laid by Sir Ivor Jennings are applied in the case
in hand, firstly there are precedents available in the form of admission
of the Speaker himself in the declaration made by him at the time of
appointment of Chairman of the Committee on Public Accounts that a
very healthy and rich tradition, and convention have grown for the last
54 years or so, to appoint a Member of the Opposition as the
Chairman of the Committee. Even the second test is also passed if the
declaration of the Speaker is read where he clearly mentions that he
followed the convention so established to appoint a person from
amongst the Members of the Opposition party as the Chairman of the
Committee on Public Accounts. The third test laid down is also
satisfied. In the case in hand we need not travel beyond the declaration
of the Speaker to find an answer to that. He mentions that the
appointment of the Chairperson of a Committee has to be of a
Member holding outstanding experience in legislative and
parliamentary affairs. This Committee enjoys a place of pride in the
Committee system. No such statement was made by the Speaker with
reference to any other Committee though Chairperson of 13
Committees were declared on that day. This has to be read coupled
with the important functions which the Committee has to discharge.
These have been held to be extension of the legislature itself to do
informed work. They perform key role in the functioning and working
of the House.
47. The specific facts recorded by the Speaker in his statement,
which was read out for information of all the Members of the
40 WPA(P) 213 of 2021
Assembly were sought to be disputed by respondent No. 3 claiming to
be authorized to file affidavit even on his behalf. The contents of an
order or any document cannot be permitted to be explained by way of
an affidavit or denied outrightly [Reference can be made to Mohinder
Singh Gill's case (supra)].
48. Though no issue was joined by the parties on the
enforceability of the constitutional conventions but still we find it
appropriate to refer to the judgment of Hon'ble the Supreme Court in
Supreme Court Advocates-on-Record Association's (1993) case
(supra). In the aforesaid judgment Hon'ble the Supreme Court opined
that there is distinction between the 'constitutional law' and an
'established constitutional convention'. Both are binding in the field
of their operation. Once it is found that a particular convention exists,
it becomes part of the constitutional law. Para 353 thereof is extracted
below:
"353. We are of the view that there is no distinction
between the "constitutional law" and an established
"constitutional convention" and both are binding in the field
of their operation. Once it is established to the satisfaction
of the Court that a particular convention exists and is
operating then the convention becomes a part of the
"constitutional law" of the land and can be enforced in the
like manner."
49. 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 additional to the fact that the same is the admitted case of the
Speaker himself in the declaration made. He cannot come out of the
41 WPA(P) 213 of 2021
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 fact remains that the Chairman was declared keeping
in view the convention and noticing all the facts. Nothing was pointed
out at the time of hearing that the constitutional convention as was
admitted in the declaration and as could be seen to be passing the
three-question test applied in the case of Supreme Court Advocates-
on-Record Association And Others's (1993) (supra) is in
contravention to any of the provisions of Constitution of India. Rather
it is in aid thereof to maintain the constitutional values and healthy
democracy. There was no dispute raised by either of the parties on the
principle of law that the constitutional convention are binding and
enforceable.
IV - JUDICIAL REVIEW
50. Arguments sought to be raised by the respondents is that
in view of Article 212 of the Constitution the proceedings in the
Assembly cannot be called in question in Court. The issue is no more
res integra. The interpretation of Article 212 has been subject matter
of consideration before Hon'ble the Supreme Court on number of
occasions. Article 212 of the Constitution of India is reproduced
hereunder:
"212. Courts not to inquire into proceedings of
the Legislature.-(1) The validity of any proceedings
42 WPA(P) 213 of 2021
in the Legislature of a State shall not be called in question
on the ground of any alleged irregularity of procedure.
(2) No officer or member of the Legislature of a State
in whom powers are vested by or under this Constitution
for regulating procedure or the conduct of business, or for
maintaining order, in the Legislature shall be subject to
the jurisdiction of any court in respect of the exercise by
him of those powers."
51. Article 212(1) of the Constitution of India provides that
validity of any proceeding in a legislature of a state shall not be called
in question on the ground of any alleged "irregularity of proceeding".
The aforesaid Article was subject matter of consideration before
Hon'ble the Supreme Court wherein it was opined that there is a
difference between the term 'irregularity' and 'illegality'. In case
illegality is alleged the Court can always examine. The same will not
be protected from judicial scrutiny.
52. In Raja Ram Pal's case (supra) a Constitution Bench of
Hon'ble the Supreme Court opined that there is a distinction between
'procedural irregularity' and 'substantive illegality'. The proceedings
which may be tainted on account of substantive illegality or
unconstitutionality as opposed to those merely irregularity cannot be
held to be protected from judicial scrutiny. Principles relating to
parameter of judicial review have been summed up in Para 431
thereof. Relevant Paras 360, 366 and 431 are extracted below.
"360. The question of extent of judicial review of
parliamentary matters has to be resolved with reference
to the provision contained in Article 122(1) that
corresponds to Article 212 referred to in Pandit Sharma
(II). On a plain reading, Article 122(1) prohibits "the
43 WPA(P) 213 of 2021
validity of any proceedings in Parliament" from being
"called in question" in a court merely on the ground of
"irregularity of procedure". In other words, the
procedural irregularities cannot be used by the court to
undo or vitiate what happens within the four walls of the
legislature. But then, "procedural irregularity" stands in
stark contrast to "substantive illegality' which cannot be
found included in the former. We are of the considered
view that this specific provision with regard to check on
the role of the judicial organ vis-à-vis proceedings in
Parliament uses language which is neither vague nor
ambiguous and, therefore, must be treated as the
constitutional mandate on the subject, rendering
unnecessary search for an answer elsewhere or invocation
of principles of harmonious construction.
x x x x
366. The touchstone upon which parliamentary
actions within the four walls of the legislature were
examined was both the constitutional as well as
substantive law. The proceedings which may be tainted
on account of substantive illegality or unconstitutionality,
as opposed to those suffering from mere irregularity thus
cannot be held protected from judicial scrutiny by Article
122(1) inasmuch as the broad principle laid down in
Bradlaugh acknowledging exclusive cognizance of the
legislature in England has no application to the system of
governance provided by our Constitution wherein no
organ is sovereign and each organ is amenable to
constitutional checks and controls, in which scheme of
things, this Court is entrusted with the duty to be
watchdog of and guarantor of the Constitution.
x x x x
431. We may summarise the principles that can be
culled out from the above discussion. They are:
44 WPA(P) 213 of 2021
(a) Parliament is a coordinate organ and its
views do deserve deference even while its acts are
amenable to judicial scrutiny;
(b) The constitutional system of government
abhors absolutism and it being the cardinal principle of
our Constitution that no one, howsoever lofty, can claim
to be the sole judge of the power given under the
Constitution, mere coordinate constitutional status, or
even the status of an exalted constitutional functionaries,
does not disentitle this Court from exercising its
jurisdiction of judicial review of actions which partake
the character of judicial or quasi-judicial decision;
(c) The expediency and necessity of exercise of
power or privilege by the legislature are for the
determination of the legislative authority and not for
determination by the courts;
(d) The judicial review of the manner of
exercise of power of contempt or privilege does not mean
the said jurisdiction is being usurped by the judicature;
(e) Having regard to the importance of the
functions discharged by the legislature under the
Constitution and the majesty and grandeur of its task,
there would always be an initial presumption that the
powers, privileges, etc. have been regularly and
reasonably exercised, not violating the law or the
constitutional provisions, this presumption being a
rebuttable one;
(f) The fact that Parliament is an august body of
coordinate constitutional position does not mean that
there can be no judicially manageable standards to review
exercise of its power;
(g) While the area of powers, privileges and
immunities of the legislature being exceptional and
extraordinary its acts, particularly relating to exercise
thereof, ought not to be tested on the traditional
parameters of judicial review in the same manner as an
45 WPA(P) 213 of 2021
ordinary administrative action would be tested, and the
Court would confine itself to the acknowledged
parameters of judicial review and within the judicially
discoverable and manageable standards, there is no
foundation to the plea that a legislative body cannot be
attributed jurisdictional error;
(h) The judicature is not prevented from
scrutinising the validity of the action of the legislature
trespassing on the fundamental rights conferred on the
citizens;
(i) The broad contention that the exercise of
privileges by legislatures cannot be decided against the
touchstone of fundamental rights or the constitutional
provisions is not correct;
(j) If a citizen, whether a non-Member or a
Member of the legislature, complains that his
fundamental rights under Article 20 or 21 had been
contravened, it is the duty of this Court to examine the
merits of the said contention, especially when the
impugned action entails civil consequences;
(k) There is no basis to the claim of bar of
exclusive cognizance or absolute immunity to the
parliamentary proceedings in Article 105(3) of the
Constitution;
(l) The manner of enforcement of privilege by
the legislature can result in judicial scrutiny, though
subject to the restrictions contained in the other
constitutional provisions, for example Article 122 or 212;
(m) Article 122(1) and Article 212(1) displace
the broad doctrine of exclusive cognizance of the
legislature in England of exclusive cognizance of internal
proceedings of the House rendering irrelevant the case-
law that emanated from courts in that jurisdiction;
inasmuch as the same has no application to the system of
governance provided by the Constitution of India;
46 WPA(P) 213 of 2021
(n) Article 122(1) and Article 212(1) prohibit
the validity of any proceedings in legislature from being
called in question in a court merely on the ground of
irregularity of procedure;
(o) The truth or correctness of the material will
not be questioned by the court nor will it go into the
adequacy of the material or substitute its opinion for that
of the legislature;
(p) Ordinarily, the legislature, as a body, cannot
be accused of having acted for an extraneous purpose or
being actuated by caprice or mala fide intention, and the
court will not lightly presume abuse or misuse, giving
allowance for the fact that the legislature is the best judge
of such matters, but if in a given case, the allegations to
such effect are made, the court may examine the validity
of the said contention, the onus on the person alleging
being extremely heavy;
(q) The rules which the legislature has to make
for regulating its procedure and the conduct of its
business have to be subject to the provisions of the
Constitution;
(r) Mere availability of the Rules of Procedure
and Conduct of Business, as made by the legislature in
exercise of enabling powers under the Constitution, is
never a guarantee that they have been duly followed;
(s) The proceedings which may be tainted on
account of substantive or gross illegality or
unconstitutionality are not protected from judicial
scrutiny;
(t) Even if some of the material on which the
action is taken is found to be irrelevant, the court would
still not interfere so long as there is some relevant
material sustaining the action;
(u) An ouster clause attaching finality to a
determination does ordinarily oust the power of the court
to review the decision but not on grounds of lack of
47 WPA(P) 213 of 2021
jurisdiction or it being a nullity for some reason such as
gross illegality, irrationality, violation of constitutional
mandate, mala fides, non-compliance with rules of
natural justice and perversity.
53. Para 54 of the judgment in Amarinder Singh's case
(supra) can also be referred to where even the proceedings in the
House were also examined by the Supreme Court, once found to be
tainted on account of substantive or gross illegality or
unconstitutionality. The same is extracted below.
"54. Hence, we are empowered to scrutinise the
exercise of legislative privileges which admittedly
include the power of a legislative chamber to punish for
contempt of itself. Articles 122(1) and 212(1) make it
amply clear that courts cannot inquire into matters related
to irregularities in observance of procedures before the
legislature. However, we can examine whether
proceedings conducted under Article 105(3) or 194(3) are
"tainted on account of substantive or gross illegality or
unconstitutionality". The facts before us do not merely
touch on a procedural irregularity. The appellant has
contended that the Punjab Vidhan Sabha has committed a
substantive jurisdictional error by exercising powers
under Article 194(3) to inquire into the appellant's actions
which were taken in his executive capacity. As explained
earlier, the relevant fact here is not only that the
allegations of wrongdoing pertain to an executive act, but
the fact that there is no conceivable obstruction caused to
the conduct of routine legislative business."
54. To similar extent is the judgment of Supreme Court in
Kalpana Mehta and Others v. Union of India and Others, (2018) 7
SCC 1. Para 121 thereof is extracted below.
48 WPA(P) 213 of 2021
"121. The aforesaid summarisation succinctly deals
with the judicial review in the sense that the
constitutional courts are not prevented from scrutinising
the validity of the action of the legislature trespassing on
the fundamental rights conferred on the citizens; that
there is no absolute immunity to the parliamentary
proceeding under Article 105(3) of the Constitution; that
the enforcement of privilege by the legislature can result
in judicial scrutiny though subject to the restrictions
contained in other constitutional provisions such as
Articles 122 and 212; that Article 122(1) and Article
212(1) prohibit the validity of any proceedings in the
legislature from being called in question in a court merely
on the ground of irregularity of procedure, and the
proceedings which may be tainted on account of
substantive or gross illegality or unconstitutionality are
not protected from judicial scrutiny."
55. In Rojer Mathew's case (supra), Hon'ble the Supreme
Court examined the validity of decision of the Speaker treating a Bill
to be a Money Bill, the opinion of the Speaker on which was final in
terms of Article 110(3) of the Constitution of India. Relevant paras
273, 274, 275, 282, 289, 291, 292 are extracted below.
"273. Article 122(1) provides immunity to
proceedings before Parliament being called into question
on the ground of "any alleged irregularities of
procedure". In several decisions of this Court which
construed the provisions of Article 122 and the
corresponding provisions contained in Article 212 for the
State Legislatures, a distinction has been drawn between
an irregularity of procedure and an illegality. Immunity
from judicial review attaches to the former but not to the
latter. This distinction found expression in a seven-Judge
Bench decision of this Court in Special Reference No. 1
49 WPA(P) 213 of 2021
of 1964 (Special Reference). This Court held : (AIR p.
768, para 62)
"62. ... Article 212(2) confers immunity on
the officers and members of the legislature in
whom powers are vested by or under the
Constitution for regulating procedure or the
conduct of business, or for maintaining order,
in the legislature from being subject to the
jurisdiction of any court in respect of the
exercise by him of those powers. Article
212(1) seems to make it possible for a citizen
to call in question in the appropriate court of
law the validity of any proceedings inside the
Legislative Chamber if his case is that the said
proceedings suffer not from mere irregularity
of procedure, but from an illegality. If the
impugned procedure is illegal and
unconstitutional, it would be open to be
scrutinised in a court of law, though such
scrutiny is prohibited if the complaint against
the procedure is no more than this that the
procedure was irregular."
(emphasis supplied)
This formulation was applied in the context of Article
122 by the Constitution Bench in Ramdas Athawale (5)
v. Union of India (Ramdas Athawale) : (SCC pp. 13-14,
para 36)
"36. This Court under Article 143,
Constitution of India, In re (Special Reference
No. 1 of 1964) (also known as Keshav Singh
case) while construing Article 212(1)
observed that it may be possible for a citizen
to call in question in the appropriate court of
law, the validity of any proceedings inside the
legislature if his case is that the said
proceedings suffer not from mere irregularity
50 WPA(P) 213 of 2021
of procedure, but from an illegality. If the
impugned procedure is illegal and
unconstitutional, it would be open to be
scrutinised in a court of law, though such
scrutiny is prohibited if the complaint against
the procedure is no more than this that the
procedure was irregular. The same principle
would equally be applicable in the matter of
interpretation of Article 122 of the
Constitution."
274. A subsequent Constitution Bench decision in
Raja Ram Pal v. Lok Sabha emphasised the distinction
between a procedural irregularity and an illegality : (SCC
pp. 359 & 362, paras 386 & 398)
"386. ... Any attempt to read a limitation into
Article 122 so as to restrict the court's
jurisdiction to examination of Parliament's
procedure in case of unconstitutionality, as
opposed to illegality would amount to doing
violence to the constitutional text. Applying
the principle of expressio unius est exclusio
alterius (whatever has not been included has
by implication been excluded), it is plain and
clear that prohibition against examination on
the touchstone of "irregularity of procedure"
does not make taboo judicial review on
findings of illegality or unconstitutionality.
***
398. ... the court will decline to interfere if
the grievance brought before it is restricted to
allegations of "irregularity of procedure". But
in case gross illegality or violation of
constitutional provisions is shown, the judicial
review will not be inhibited in any manner by
Article 122, or for that matter by Article 105."
(emphasis supplied)
51 WPA(P) 213 of 2021
275. The fundamental constitutional basis for the
distinction between an irregularity of procedure and an
illegality is that unlike in the United Kingdom where
parliamentary sovereignty governs, India is governed by
constitutional supremacy. The legislative, executive and
judicial wings function under the mandate of a written
Constitution. The ambit of their powers is defined by the
Constitution. The Constitution structures the powers of
Parliament and the State Legislatures. Their authority is
plenary within the field reserved to them. Judicial review
is part of the basic structure of the Constitution. Any
exclusion of judicial review has to be understood in the
context in which it has been mandated under a specific
provision of the Constitution. Hence, the provisions
contained in Article 122 which protect an alleged
irregularity of procedure in the proceedings in Parliament
being questioned cannot extend to a substantive illegality
or a violation of a constitutional mandate.
x x x x
282. Mohd. Saeed Siddiqui proceeds on an
incorrect construction of the decision in Mangalore Beedi
and on an erroneous understanding of Article 255. The
decision in M.S.M. Sharma v. Krishna Sinha which was
adverted to in Mohd. Saeed Siddiqui was discussed in the
Special Reference to hold that the validity of the
proceedings in a legislative chamber can be questioned
on the ground of illegality. The decisions in the Special
Reference, Ramdas Athawale (5) and Raja Ram Pal
clearly hold that the validity of the proceedings before
Parliament or a State Legislature can be subject to
judicial review on the ground of an illegality (as
distinguished from an irregularity of procedure) or a
constitutional violation. Hence, the decisions in Mohd.
Saeed Siddiqui and Yogendra Kumar on the above aspect
do not lay down the correct position in law and are
overruled.
52 WPA(P) 213 of 2021
x x x x
289. The judgment of D.Y. Chandrachud, J. in K.S.
Puttaswamy specifically holds that the decision of the
Speaker to certify a Bill as a Money Bill is not immune
from judicial review. After tracing the constitutional
history of Article 110 including the provisions of the
Parliament Act, 1911 in Britain and Section 37 of the
Government of India Act, 1935, the judgment places
reliance on the construction placed on the provisions of
Article 122 and the corresponding provision in Article
212 in (i) Special Reference; (ii) Ramdas Athawale (5);
and (iii) Raja Ram Pal. In coming to the conclusion that
the decision of the Speaker is amenable to judicial review
if it suffers from illegality or from a violation of
constitutional provisions, the decisions in Mohd. Saeed
Siddiqui and Yogendra Kumar were disapproved.
Distinguishing the principle of parliamentary sovereignty
in the UK from the position of constitutional supremacy
in India, the decision observes : (Puttaswamy case, SCC
pp. 725-26, para 1067)
"1067. The purpose of judicial review is to
ensure that constitutional principles prevail in
interpretation and governance. Institutions
created by the Constitution are subject to its
norms. No constitutional institution wields
absolute power. No immunity has been
attached to the certificate of the Speaker of
Lok Sabha from judicial review, for this
reason. The Constitution-makers have
envisaged a role for the judiciary as the
expounder of the Constitution. The provisions
relating to the judiciary, particularly those
regarding the power of judicial review, were
framed, as Granville Austin observed, with
"idealism". Courts of the country are expected
to function as guardians of the Constitution
53 WPA(P) 213 of 2021
and its values. Constitutional courts have been
entrusted with the duty to scrutinise the
exercise of power by public functionaries
under the Constitution. No individual holding
an institutional office created by the
Constitution can act contrary to constitutional
parameters. Judicial review protects the
principles and the spirit of the Constitution.
Judicial review is intended as a check against
arbitrary conduct of individuals holding
constitutional posts. It holds public
functionaries accountable to constitutional
duties. If our Constitution has to survive the
vicissitudes of political aggrandisement and to
face up to the prevailing cynicism about all
constitutional institutions, notions of power
and authority must give way to duties and
compliance with the rule of law.
Constitutional institutions cannot be seen as
focal points for the accumulation of power
and privilege. They are held in trust by all
those who occupy them for the moment. The
impermanence of power is a sombre reflection
for those who occupy constitutional offices.
The Constitution does not contemplate a
debasement of the institutions which it
creates. The office of the Speaker of the
House of People, can be no exception. The
decision of the Speaker of Lok Sabha in
certifying a Bill as a Money Bill is liable to be
tested upon the touchstone of its compliance
with constitutional principles. Nor can such a
decision of the Speaker take leave of
constitutional morality."
x x x x
54 WPA(P) 213 of 2021
291. From the above analysis, it is evident that the
judgments of both D.Y. Chandrachud, J. and Ashok
Bhushan, J. categorically held that the decision of the
Speaker to certify a Bill as a Money Bill is not immune
from judicial review. There is a clear distinction between
an irregularity of procedure under Article 122(1) and a
substantive illegality. The certificate of the Speaker under
Article 110(3) is not conclusive insofar as judicial review
is concerned. Judicial review can determine whether the
conditions requisite for a Bill to be validly passed as a
Money Bill were fulfilled. The point of difference
between the majority (represented by the decisions of
Sikri, J. and Ashok Bhushan, J.) and Chandrachud, J. was
that on merits, the majority came to the conclusion that
the Aadhaar Bill is a Money Bill within the meaning of
Article 110(1) while the dissent held otherwise.
292. On an overall reading of the judgment of
Sikri, J. it is not possible to accede to the submission of
the learned Attorney General that the issue of the
reviewability of the certificate of the Speaker is left at
large by the decision of the majority. In any event, in
view of the issue having arisen in the present case, we
have dealt with the aspect of judicial review
independently of the decision in Puttaswamy."
(emphasis supplied)
56. From the enunciation of law as referred to above it can be
summed up that there is no absolute immunity granted to the action of
the Speaker. Even the validity of the proceedings in the Parliament or
the Assembly can also be gone into. The only prohibition is on the
ground of 'irregularity of procedure' but if there is substantial
illegality pointed out, the Courts can always interfere. It is to maintain
the constitutional values. The role of Speaker is critical in maintaining
the balance between the democratic values and the constitutional
55 WPA(P) 213 of 2021
considerations. Reference can be made to Shrimanth Balasaheb
Patil v. Karnataka Legislative Assembly, (2020) 2 SCC 595. Being
a constitutional authority he is expected to discharge his duty above
the party lines.
57. It has remained undisputed on record that respondent
No.2 had contested the State Assembly Election on a BJP ticket.
Following table will show certain other important dates:
Date Events
May 02, 2021 The result of the Assembly Election was
declared. The respondent No. 2 was elected as
MLA on a BJP ticket.
June 11, 2021 The respondent No.2 defected from BJP to
AITC.
June 17, 2021 A petition was filed by Suvendu Adhikari,
another member of Legislative Assembly, for
disqualification of respondent No.2. The petition
is still pending with the Speaker.
June 24, 2021 20 MLAs including respondent No.2 were
elected as members of the Committee on Public
Accounts. 7 out of these are belonging to BJP,
the main Opposition party.
July 09, 2021 The respondent and the Speaker nominated
respondent No.2 as the Chairman of the
Committee on Public Accounts treating him to
be a member belonging to the legislative party
of the BJP.
58. The declaration was made while noticing the fact that in
the West Bengal Legislative Assembly there is a healthy and rich
tradition to have a member of the Opposition as the Chairman of the
Committee on Public Accounts. Keeping in view the important
56 WPA(P) 213 of 2021
function, the Committee discharges and also the transparency in the
accounts.
59. Though at the time of hearing learned Counsel appearing
for respondents sought to take a stand that there is no tradition as such
in the West Bengal State Assembly to nominate a member of the
legislative party in opposition as the Chairman of the Committee on
Public Accounts. However, considering the categoric admission made
by the Speaker in his announcement while appointing the Chairman of
the Committee no such explanation can be accepted. Admissions
made by the Speaker pass the tests laid down by Hon'ble the Supreme
Court to hold any convention to be a constitutional convention. The
fact in this case remains that the Speaker was well aware of all the
traditions and the facts before him. Considering those and also
noticing that respondent No.2 belong to BJP, the party in Opposition
in the State Assembly, was appointed as the Chairman of the
Committee. It is not denied that a petition filed for disqualification of
respondent No.2 on account of his defection from BJP to AITC was
pending, considering at that time for a period of about one month. As
the tenure of the Committee is one year, the idea may be to maintain
the traditions as well on papers and then have the member who had
allegedly defected to the ruling party as the Chairman of the
Committee on Public Accounts.
60. Once the respondents have been caught on a wrong foot,
all types of explanations are coming forth to justify their illegal action,
which is contrary to the stand available on record in the form of
declaration. The fact remains that the nomination of respondent No.2
as the Chairman of the Committee on Public Accounts was made
57 WPA(P) 213 of 2021
keeping in view the rich tradition and convention being followed for
the last 54 years or so. The same cannot be permitted to be justified
now stating as there was no such convention. In fact it is not a case of
mere irregularity in the procedure adopted, rather it is the illegality
committed by the Speaker in nominating a person, who had in fact
defected from BJP to AITC. In case the petition for his
disqualification is allowed, he cannot even be a Member of the House,
hence, not eligible to be a Member of the Committee, what to talk of
its Chairman.
61. In the writ petition filed by the petitioner specific
pleadings have been raised that the respondent No. 2 had contested
and was elected as a Member of the Legislative Assembly on the BJP
ticket. He defected to AITC and a petition for his disqualification was
filed on June 17, 2021. The same is still pending. Though the
aforesaid facts are in specific knowledge of the respondents but the
same have not been specifically denied.
62. 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. On one hand, he was fair enough to
state in the declaration made by him that there is a rich and healthy
tradition in the Assembly of having a Member of the opposition as the
Chairman of the Public Accounts. The tradition was being followed
for a period of 54 years or so. Keeping in view that tradition, the
Speaker appointed a Member of the opposition party as the Chairman
of the Committee on Public Accounts. However, now the aforesaid
58 WPA(P) 213 of 2021
declaration is sought to be explained that it is not necessary to have a
Member of opposition party as the Chairman of the Committee on
Public Accounts. In fact, he was not even required to be impleaded as
respondent in the petition to answer the pleadings as the contents of
the declaration made by him are sufficient. Any denial by the
respondent No. 2 is meaningless.
63. The protection given in Article 212(2) is to the officer or
the member of the legislature in discharge of his duties. Both the
clauses of Article 212 operate in different fields. Clause (1) talks
about challenge to the proceedings whereas Clause (2) grants
protection to the officers. While challenging inaction of an authority,
may be constitutional authority, he need not be impleaded as party to
the proceedings however, still his action can be challenged. [Ref.
Rojer Mathew's case (supra) and Kumar Padma Prasad v. Union
of India, (1992) 2 SCC 428].
64. Another important fact to be noticed is that a person who
has allegedly defected from BJP to AITC has been nominated as the
Chairman of the Committee on Public Accounts treating him to be a
Member of the opposition party. The petition for his disqualification
was pending consideration before the Speaker, before he was
nominated to act as Chairman. This cannot be termed to be mere
irregularity. It is much more than that if seen coupled with the fact that
despite judgments of Hon'ble the Supreme Court the Speaker is sitting
tight on the matter on decision of disqualification of the respondent
No. 2.
65. Efforts on the part of the respondent No.2 to delay the
proceedings and the soft attitude of the Speaker thereon is evident
59 WPA(P) 213 of 2021
from the fact that even before this Court, adjournment was sought
once by the learned Counsel appearing for the respondent No. 2 on the
ground that they could not have conference with the respondent No. 2
before the arguments are addressed, after the pleadings were
completed. It was on the ground that he was not keeping good health.
The same was seriously opposed by the learned Counsel for the
petitioner stating that a day before the respondent No. 2 had appeared
on electronic media making certain statements. The fact was not
disputed by the learned Counsel appearing for the respondent No. 2.
All these factors erode the faith of the people in the constitutional
system. In our Constitution no organ is sovereign as each organ is
amenable to constitutional checks and controls. In the scheme of
things the Courts are entrusted with the duty to be the watchdog and
guarantor of the Constitution. It is in discharge of that duty that this
Court has been called upon to examine the issue.
66. In view of the aforesaid factual matrix and the legal position
as discussed above this Court is of the view that the action of the
Speaker can be examined in its power of judicial review as the same
does not fall merely in the ambit or "irregularity of the procedure" for
which protection is available under Article 212(1) of the Constitution
of India. The action of the Speaker is on wrong premise even as per
the facts admitted by him in the declaration made at the time of
appointment of the Chairman of the Public Accounts.
67. 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
60 WPA(P) 213 of 2021
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. 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. In fact, recently,
Hon'ble the Supreme Court had to comment upon the conduct of the
Speaker in many cases for the reason that they were not found to be
discharging their duty independently, rising above the party lines. It
was commented upon in Shrimanth Balasaheb Patil's case (supra)
that there is a growing trend of the Speaker acting against the
constitutional duty of being neutral. Horse trading and corrupt
practices associated with defection and change of loyalty for lure of
office, for wrong reasons have been opted.
V - QUO-WARRANTO
68. In B.R. Kapur's case (supra) Hon'ble the Supreme Court
opined that if a Governor appoints a Chief Minister who is not
qualified to be a member of legislature or is disqualified to be
appointed as such, his appointment will be contrary to the provisions
of Article 164 of the Constitution of India. The authority of the
appointee to hold the appointment can be challenged by filing a writ
of quo-warranto. Merely because the Governor has made the
appointment, it does not give the appointee any right to hold the post
if the appointment is contrary to Constitutional Conventions. It will be
struck down.
61 WPA(P) 213 of 2021
69. In the aforesaid judgment reference was made to an earlier
judgment of Hon'ble the Supreme Court in Kumar Padma Prasad's
case (supra), where appointment of one K.N. Srivastava who was
appointed as a Judge of Gauhati High Court by a warrant of
appointment signed by the President of India was set aside, finding
him to be not qualified for appointment as a High Court Judge. It was
opined that the issue could be examined in a quo-warranto
proceedings. Paras 51 and 52 from the judgment in B.R. Kapur's case
(supra) are extracted below:
"51. If perchance, for whatever reason, the Governor
does appoint as Chief Minister a person who is not qualified
to be a member of the Legislature or who is disqualified to
be such, the appointment is contrary to the provisions of
Article 164 of the Constitution, as we have interpreted it,
and the authority of the appointee to hold the appointment
can be challenged in quo warranto proceedings. That the
Governor has made the appointment does not give the
appointee any higher right to hold the appointment. If the
appointment is contrary to constitutional provisions it will
be struck down. The submission to the contrary --
unsupported by any authority -- must be rejected.
52. The judgment of this Court in Kumar Padma
Prasad v. Union of India is a case in point. One K.N.
Srivastava was appointed a Judge of the Gauhati High
Court by a warrant of appointment signed by the President
of India. Before the oath of office could be administered to
him, quo warranto proceedings were taken against him in
that High Court. An interim order was passed directing that
the warrant of appointment should not be given effect to
until further orders. A transfer petition was then filed in this
Court and was allowed. This Court, on examination of the
record and the material that it allowed to be placed before it,
held that Srivastava was not qualified to be appointed a
62 WPA(P) 213 of 2021
High Court Judge and his appointment was quashed. This
case goes to show that even when the President, or the
Governor, has appointed a person to a constitutional office,
the qualification of that person to hold that office can be
examined in quo warranto proceedings and the appointment
can be quashed."
(emphasis supplied)
70. In his concurring judgment Brijesh Kumar, J. negated the
argument that Article 361 of the Constitution shall come to the rescue
of the party therein that the Governor is not answerable to any Court
for performance of duties of his office as Governor. The Court opined
that it was considering the prayer for issuance of writ of quo-warranto
against respondent No.2 therein, who allegedly suffered from
disqualification to hold the office of the Chief Minister of a State. A
writ of quo-warranto lies against the person who according to the
relator is not entitled to hold office of public nature and is only
usurper of the office. If such a writ is filed the onus is on the person to
show as to by what authority he is entitled to hold the office. It is not
even necessary to implead the appointing authority as respondent in
the proceedings. The Governor was not even required to answer the
allegations against him. The protection available under Article 361 of
the Constitution does not extend to the person who is the holder of an
office, which under the law he is not entitled to hold. Any defence to
say that the appointment has been made by a competent authority,
who under the law is not answerable to any Court, is not available.
Relevant paras thereof are extracted below.
"78. Amongst other points, the learned counsel for the
respondents submitted that the appointment of Respondent
2 as Chief Minister by the Governor, could not be
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challenged, in view of the provisions under Article 361 of
the Constitution, providing that the Governor shall not be
answerable to any court for the exercise and performance of
the powers and duties of his office. It was also submitted
that in appointing the Chief Minister, the Governor
exercised her discretionary powers, therefore, her action is
not justiciable. Yet another submission is that the Governor
had only implemented the decision of the majority party, in
appointing Respondent 2 as a Chief Minister i.e. she had
only given effect to the will of the people.
79. Insofar as it relates to Article 361 of the
Constitution, that the Governor shall not be answerable to
any court for performance of duties of his office as
Governor, it may, at the very outset, be indicated that we
are considering the prayer for issue of the writ of quo
warranto against Respondent 2, who according to the
petitioner suffers from disqualification to hold the public
office of the Chief Minister of a State. A writ of quo
warranto is a writ which lies against the person, who
according to the relator is not entitled to hold an office of
public nature and is only a usurper of the office. It is the
person, against whom the writ of quo warranto is directed,
who is required to show, by what authority that person is
entitled to hold the office. The challenge can be made on
various grounds, including on the grounds that the
possessor of the office does not fulfil the required
qualifications or suffers from any disqualification, which
debars the person to hold such office. So as to have an idea
about the nature of action in the proceedings for writ of quo
warranto and its original form, as it used to be, it would be
beneficial to quote from Words and Phrases, Permanent
Edn., Vol. 35-A, p. 648. It reads as follows:
"The original common law writ of quo warranto
was a civil writ at the suit of the Crown, and not a
criminal prosecution. It was in the nature of a writ
of right by the King against one who usurped or
64 WPA(P) 213 of 2021
claimed franchises or liabilities, to inquire by what
right he claimed them. This writ, however, fell into
disuse in England centuries ago, and its place was
supplied by an information in the nature of a quo
warranto, which in its origin was a criminal
method of prosecution, as well as to punish the
usurper by a fine for the usurpation of the
franchise, as to oust him or seize it for the Crown.
Long before our revolution, however, it lost its
character as a criminal proceeding in everything
except form, and was applied to the mere purposes
of trying the civil right, seizing the franchise, or
ousting the wrongful possessor, the fine being
nominal only; and such, without any special
legislation to that effect, has always been its
character in many of the States of the Union, and it
is therefore a civil remedy only. Ames v. State of
Kansas, People v. Dashaway Assn."
82. Besides the above, many High Courts as well as
this Court have taken the view that a writ of quo warranto
lies against a person, who is called upon to establish his
legal entitlement to hold the office in question." In view of
the legal position as indicated above it would not be
necessary to implead the appointing authority as the
respondent in the proceedings. In the case in hand, the
Governor need not be made answerable to the court. Article
361 of the Constitution however does not extend any
protection or immunity, vicariously, to the holder of an
office, which under the law, he is not entitled to hold. On
being called upon to establish valid authority to hold a
public office, if the person fails to do so, a writ of quo
warranto shall be directed against such person. It shall be no
defence to say that the appointment was made by the
competent authority, who under the law is not answerable to
any court for anything done in performance of duties of his
65 WPA(P) 213 of 2021
office. The question of fulfilling the legal requirements and
qualifications necessary to hold a public office would be
considered in the proceedings, independent of the fact as to
who made the appointment and the manner in which the
appointment was made. Therefore, Article 361 of the
Constitution would be no impediment in examining the
question of entitlement of a person, appointed by the
Governor to hold a public office, who according to the
petitioner/relator is usurper to the office."
(emphasis supplied)
71. In Central Electricity Supply Utility of Odisha's case
(supra) it was observed that the basic purpose of writ of quo-warranto
is to confer jurisdiction on the constitutional Courts to see that a
public office is not held by an usurper without any legal authority. A
Court is required to see that the larger public interest and the basic
concept pertaining to good governance are not thrown to the winds.
Relevant paras 21 and 22 thereof are extracted below:
"21. From the aforesaid exposition of law it is clear
as noonday that the jurisdiction of the High Court while
issuing a writ of quo warranto is a limited one and can only
be issued when the person holding the public office lacks
the eligibility criteria or when the appointment is contrary
to the statutory rules. That apart, the concept of locus standi
which is strictly applicable to service jurisprudence for the
purpose of canvassing the legality or correctness of the
action should not be allowed to have any entry, for such
allowance is likely to exceed the limits of quo warranto
which is impermissible. The basic purpose of a writ of quo
warranto is to confer jurisdiction on the constitutional
courts to see that a public office is not held by usurper
without any legal authority.
22. While dealing with the writ of quo warranto
another aspect has to be kept in view. Sometimes a
66 WPA(P) 213 of 2021
contention is raised pertaining to doctrine of delay and
laches in filing a writ of quo warranto. There is a difference
pertaining to personal interest or individual interest on the
one hand and an interest by a citizen as a relator to the
Court on the other. The principle of doctrine of delay and
laches should not be allowed any play because the person
holds the public office as a usurper and such continuance is
to be prevented by the Court. The Court is required to see
that the larger public interest and the basic concept
pertaining to good governance are not thrown to the winds."
72. In Bharati Reddy's case (supra) Hon'ble the Supreme
Court opined that the jurisdiction of the High Court to issue a writ of
quo-warranto is limited when the appointment is found to be contrary
to the statutory rules. Para 39 thereof is extracted below:
"39. We have adverted to some of those decisions
in the earlier part of this judgment. Suffice, it to observe
that unless the Court is satisfied that the incumbent was not
eligible at all as per the statutory provisions for being
appointed or elected to the public office or that he/she has
incurred disqualification to continue in the said office,
which satisfaction should be founded on the indisputable
facts, the High Court ought not to entertain the prayer for
issuance of a writ of quo warranto."
73. Before a writ of quo-warranto can be issued the primary
question is to be decided is whether the person concerned is a usurper
of a Public Office. If the answer to the question that respondent No. 2
is holding a public office, this Court can examine the prayer for
issuance of a writ of quo-warranto, otherwise not.
74. The word "Public Officer" has been defined in Code of
Civil Procedure to include every officer in the service or pay of the
Government or remunerated by the fee or commission for
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performance of any duty. In the case in hand, it cannot be denied that
the Members of the Legislative Assembly get their salaries from the
public exchequer. That means from the public exchequer.
75. A 'Public Office' is the right, authority and duty created
and conferred by law, by which an individual is vested with powers to
exercise some government function for the benefit of the public. The
determining factor, the test is whether the Office involves delegation
of some of the solemn functions of government, either executive,
legislative or judicial to be exercised by the holder for the public
benefit.
76. The issue with reference to the term 'Public Servant' as
contained in the Prevention of Corruption Act, 1988, was examined by
Hon'ble the Supreme Court in P.V. Narashima Rao's case (supra).
While interpreting Clause (viii) of Section 2 (c) of the aforesaid Act, it
was opined that MPs and MLAs are included in the category of public
servants, who hold office by virtue of which they are authorized or
required to perform public duty.
77. Article 194(3) provides for powers, privileges, etc. of the
House of Legislatures and of the Members of the Committees thereof.
Rules of Business provide for constitution of various Committees. The
Members and the Chairmen thereof are none else than the Members of
the Legislative Assembly. The importance of the Legislative
Committees has been discussed by Hon'ble the Supreme Court in Ajit
Mohan and Others's case (supra). It cannot be disputed that the
Members of the Committee discharge public functions. They are
elected public representatives. Even as per the Rules of Business,
various powers have been conferred on the Chairperson of the
68 WPA(P) 213 of 2021
Committee on Public Accounts where he can even summon any
person and record evidence. Still further the Committee has to
examine the accounts and the budget. This function cannot be treated
less important as everything revolves around finances in a State.
Hence, the argument raised by learned Counsel for the respondents
that the office being held by respondent no. 2 is not a public office is
totally misconceived and deserves to be rejected.
78. Once 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 the respondent no. 2 had defected from BJP to AITC.
A petition for disqualification was pending before the Speaker before
even he was 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 therefor
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
69 WPA(P) 213 of 2021
have taken steps to appoint him as the Chairman of the Committee on
Public Accounts.
VI - MAINTAINABILITY OF PIL
79. Maintainability of PIL in the present case will not be an
issue as constitutional issues have been raised by the petitioner.
DIRECTIONS
80. From the facts which have come on record, we find that
the issue pertaining to disqualification of the respondent No. 2 as
Member of the Legislative Assembly is co-related with him being the
Chairman of the Committee on Public Accounts. A petition filed for
his disqualification is pending before the Speaker for the last more
than three months, the maximum period fixed in Keisham
Meghachandra Singh's case (supra) for decision thereof. Before we
proceed further in the matter let the respondent No. 1 place before us
the order passed in the petition filed for disqualification of respondent
No. 2 as Member of the Legislative Assembly.
81. Adjourned to October 07, 2021. In case of failure this
Court will decide further course of action to be taken in the matter.
(RAJESH BINDAL)
CHIEF JUSTICE (ACTING)
(RAJARSHI BHARADWAJ)
JUDGE
Kolkata
28.09.2021
___________
PA(SG/RB/SS)
