2021 (9) TMI 1458 - HC - Indian Laws

Prayer for issuance of a writ of quo-warranto - validity of nomination of respondent No. 2 as the Chairman of the Committee on Public Accounts - seeking direction to the respondent No. 1 to appoint/nominate member of the opposition party as Chairman of the Committee on Public Accounts. Disqualification petition - HELD THAT - 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 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. Rules of procedure and conduct of business in the West Bengal Legislative Assembly, Constitution of Committees and importance - HELD THAT - 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 - Even if in the present case the declaration of the names of the Members of the Chairpersons of the Committees was made in the Assembly, this cannot be termed to be proceedings in the Assembly as it was merely a declaration made by the Speaker in the presence of all the Members. It was not subject matter of discussion amongst the Members in the Assembly. There may be some Committees constituted by the State Assemblies or the Parliament but the case in hand is different. Constitutional Convention - HELD THAT - 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 2015 (10) TMI 2687 - SUPREME COURT 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. Judicial Review - HELD THAT - 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 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. 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 - It is not a case of procedural irregularities, which could debar this Court from entertaining the petition in terms of Article 212 of the Constitution of India. It is a case of blatant illegality. Firstly, the Speaker was required to decide the petition filed before him for disqualification of 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. Quo-warranto - HELD THAT - 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 - 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 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. 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 have taken steps to appoint him as the Chairman of the Committee on Public Accounts. Maintainability of PIL - HELD THAT - Maintainability of PIL in the present case will not be an issue as constitutional issues have been raised by the petitioner. 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 2020 (1) TMI 1174 - SUPREME COURT for decision thereof. Adjourned to October 07, 2021. In case of failure this Court will decide further course of action to be taken in the matter.

Summary

Issues Involved:
1. Duty of the Court
2. Arguments on Behalf of the Petitioner
3. Arguments on Behalf of the Respondent Nos. 1 & 3
4. Arguments on Behalf of the Respondent No. 2
5. Reply to the Arguments of the Respondents by the Petitioner
6. Analysis
- Regarding Disqualification Petition
- Rules of Procedure and Conduct of Business in the West Bengal Legislative Assembly, Constitution of Committees and Importance Thereof
- Constitutional Convention
- Judicial Review
- Quo-Warranto
- Maintainability of PIL
7. Directions

Detailed Analysis:

Duty of the Court:
The Court's duty, as per Smriti Chandrika, is to remove inequity from lawsuits, akin to a surgeon removing a dart. The Supreme Court in State of Rajasthan v. Union of India emphasized that political complications do not prevent the Court from addressing constitutional questions. The Court must protect constitutional values and democracy, acting as the ultimate interpreter of the Constitution.

Arguments on Behalf of the Petitioner:
The petitioner argued that respondent No. 2, initially elected on a BJP ticket, defected to AITC, and despite this, was nominated as the Chairman of the Committee on Public Accounts, violating established conventions. The Speaker's declaration acknowledged a tradition of appointing opposition members as Chairmen of this Committee. The petitioner cited Mohinder Singh Gill v. Chief Election Commissioner, emphasizing that orders must be justified by their stated reasons.

Arguments on Behalf of the Respondent Nos. 1 & 3:
The respondents contended that the Speaker's actions are protected under Article 212, which bars court scrutiny of legislative proceedings. They argued that the Speaker's nomination of the Chairman is a procedural matter, not subject to judicial review. They also claimed that the petitioner, being an interested party, cannot file a public interest litigation.

Arguments on Behalf of the Respondent No. 2:
Respondent No. 2 argued that the practice of appointing opposition members as Chairmen cannot be considered a constitutional convention. It was asserted that the Speaker's actions, being part of legislative proceedings, are protected from judicial scrutiny under Article 212.

Reply to the Arguments of the Respondents by the Petitioner:
The petitioner countered that the Speaker's actions involved substantive irregularities, not just procedural ones, thus falling within the scope of judicial review. The petitioner emphasized that the pending disqualification petition against respondent No. 2 should have been decided before his nomination.

Analysis:
I. Regarding Disqualification Petition:
The Supreme Court in Keisham Meghachandra Singh's case mandated that disqualification petitions must be decided within three months. The Speaker's inaction on the disqualification petition against respondent No. 2, pending since June 17, 2021, violates this mandate.

II. Rules of Procedure and Conduct of Business in the West Bengal Legislative Assembly, Constitution of Committees and Importance Thereof:
The Rules of Business, under Article 208, detail the constitution and functions of Committees, including the Committee on Public Accounts. The Speaker's declaration acknowledged a tradition of appointing opposition members as Chairmen, emphasizing the Committee's critical role in legislative oversight.

III. Constitutional Convention:
The Supreme Court in Supreme Court Advocates-on-Record Association's (1993) case established that constitutional conventions, once proven, become part of constitutional law. The Speaker's declaration confirmed a 54-year tradition of appointing opposition members as Chairmen of the Committee on Public Accounts, satisfying the tests for a constitutional convention.

IV. Judicial Review:
Article 212 protects legislative proceedings from judicial scrutiny only for procedural irregularities, not substantive illegalities. The Supreme Court in Raja Ram Pal's case affirmed that substantive illegality or unconstitutionality in legislative actions is subject to judicial review.

V. Quo-Warranto:
The Supreme Court in B.R. Kapur's case held that appointments contrary to constitutional provisions could be challenged through quo-warranto. The petitioner's challenge to respondent No. 2's appointment as Chairman, given the pending disqualification petition, is valid.

VI. Maintainability of PIL:
The PIL is maintainable as it raises significant constitutional issues regarding democratic principles and legislative procedures.

Directions:
The Court directed the Speaker to decide the disqualification petition against respondent No. 2 and adjourned the matter to October 07, 2021, for further action based on the Speaker's decision.

This comprehensive analysis ensures that all relevant legal terminology and significant phrases from the original judgment are preserved, providing a detailed and thorough understanding of the issues and the Court's reasoning.