'Speaker Worked On Dictates, Failed To Discharge Constitutional Duty': Calcutta HC Rules That Constitutional Convention Is To Appoint Opposition Leader As PAC Chairman

Update: 2021-09-28 13:16 GMT

The Calcutta High Court on Tuesday observed that it is a 'constitutional convention' to appoint a leader of the Opposition as the Chairman of the Public Accounts Committee (PAC) of the West Bengal Legislative Assembly. The observation was made in the plea moved by BJP MLA Ambika Roy challenging the appointment of Mukul Roy as the PAC Chairman. The Court further directed the Speaker...

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The Calcutta High Court on Tuesday observed that it is a 'constitutional convention' to appoint a leader of the Opposition as the Chairman of the Public Accounts Committee (PAC) of the West Bengal Legislative Assembly. The observation was made in the plea moved by BJP MLA Ambika Roy challenging the appointment of Mukul Roy as the PAC Chairman. 

The Court further directed the Speaker of the West Bengal Legislative Assembly to decide on the disqualification petition moved against TMC MLA Mukul Roy and place on record the order passed by the next date of hearing i.e. on October 7. On June 17, a disqualification petition had been moved before the Speaker by BJP MLA and Leader of the Opposition Suvendu Adhikari against Mukul Roy on the grounds of defection under the Tenth Schedule of the Constitution. 

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

Appointing a leader of the Opposition as PAC Chairman is an established 'constitutional convention' 

A Bench comprising Acting Chief Justice Rajesh Bindal and Justice Rajarshi Bharadwaj placed reliance on the Supreme Court judgment in Supreme Court Advocates-on-Record Association to determine what constitutes a 'constitutional convention'. The Supreme Court had referred to the 'purpose test' for the existence of a convention as laid down by Sir Ivor Jennings which stipulated the following- (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?

The Court further noted that the Speaker had himself declared on the floor of the Assembly that in the 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. 

Accordingly, the Court observed, 

"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."

During prior hearings, the counsel appearing for the Speaker had disputed the facts recorded in the statement of the Speaker which had been read out on the floor of the Assembly. An authorised affidavit was sought to be submitted in this regard. 

However, the Bench rejected such a contention by observing that the 'contents of an order or any document cannot be permitted to be explained by way of an affidavit or denied outrightly' and accordingly placed reliance on the Supreme Court judgment in Mohinder Singh Gill v. Chief Election Commissioner

The Court further placed reliance on the Supreme Court judgment in Supreme Court Advocates-on-Record Association to hold there lies no distinction between 'constitutional law' and an 'established constitutional convention' and that both are binding in operation. 

"Once it is found that a particular convention exists, it becomes part of the constitutional law", the Court opined. 

Senior counsel Anindya Kumar Mitra appearing on behalf of Mukul Roy had earlier argued that admission of a practice by Speaker of one provisional Assembly cannot assume a convention of a national character so as to constitute a 'constitutional convention'.

"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 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.", the Court further remarked. 

Categorical admission had been made by the Speaker on the floor of the Assembly that such a constitutional convention exists 

The Court further opined that categoric admission was made by the Speaker in his announcement while appointing the Chairman of the Committee that a constitutional convention exists to appoint a leader of the Opposition as PAC Chairman and the same cannot be allowed to be refuted now. 

"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...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", it was further opined. 

Judicial review is permitted if actions of the Speaker result in 'substantive illegality' 

The Court further rejected the contention that pursuant to Article 212 of the Constitution, legislative proceedings cannot be subjected to judicial review. 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"

It was held that there is no absolute immunity when it comes to the actions of the Speaker and that in the event that a 'substantial illegality' takes place, interference by the Court is warranted. 

"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 considerations", the Court observed. 

The Court further added, 

"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."

Speaker worked on dictates, failed to discharge his constitutional duty 

Opining that the Speaker had failed to discharge his constitutional duty, the Court remarked, 

"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."

It was further observed that the Speaker was not even required to be impleaded as a party in the present case as his declaration on the floor of the Assembly was sufficient proof about the existence of a constitutional convention and subsequent denial in this regard is 'meaningless'. 

Case Title: Ambika Roy v. The Speaker, West Bengal Legislative Assembly and Ors

Click Here To Read/Download Order 

Also Read: Calcutta HC Directs WB Speaker To Decide Disqualification Petition Against TMC MLA Mukul Roy By October 7


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