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TMI Blog2021 (9) TMI 1458X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs, 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. X X X X Extracts X X X X X X X X Extracts X X X X ..... rtainly 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 q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenging 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 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 pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unts clearly shows that it is an established constitutional convention which can be enforced as a binding precedent. In fact as is 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able. 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 order. Once ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttee 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 Accounts. Even Section 2(17)(g) of CPC also defines on as to who is a public officer. Even a member of Parl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 member by the Speaker, the Courts have to intervene and specify the timeline. A Speaker in discha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (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 alte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances 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 reelection: 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 Speake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntation. 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 Speaker ment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 legislativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lished 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 the Rajya Sabha it was stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional 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: "CONSTITUTION OF ASSEMBLY COMMITTEES 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. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Sl No. Name of the Committees Name of the Chairman/Chairper son 1 Committee on Public Accounts Shri Mukul Roy 2-13 *** *** (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 refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 out-rightly [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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reasona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 unconstitutiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zens; 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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) 275. The fundamental constitutional basis for the distinction between an irregularity of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and its values. Constitutional courts have been entrusted with the duty to scrutinise t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rney 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 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 Electi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tting 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld the post if the appointment is contrary to Constitutional Conventions. It will be struck down. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Minis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever 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 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 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, eith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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