The Calcutta High Court on Thursday disqualified the MLA Mukul Roy from the membership of West Bengal State legislature for defecting from the Bharatiya Janata Party (BJP) to the All India Trinamool Congress, the ruling political party in West Bengal [Suvendu Adhikari Vs Hon’ble Speaker, West Bengal Legislative Assembly & Ors].
The Division Bench of Justice Debangsu Basak and Justice Md. Shabbar Rashidi said that it was established that Mukul Roy had defected to Trinamool Congress on June 11, 2021. Thus, it ruled that he had incurred disqualification under the Tenth Schedule of the Constitution.
"The respondent No. 2 is declared to have become disqualified in terms of the Tenth Schedule of the Constitution of India and the Rules of 1986 with effect from June 11, 2021," the Court ordered.
Consequently, the Court also set aside Roy's nomination as the chairman of the Public Accounts Committee (PAC) of the West Bengal Legislative Assembly.
Roy was elected as a Member of the Legislative assembly from Krishnanagar Uttar Constituency on BJP ticket. However, in June 2021, he joined the Trinamool Congress.
State Leader of Opposition Suvendu Adhikari and BJP MLA Ambika Roy then sought his disqualification.
The Speaker of West Bengal Legislative Assembly in 2022 dismissed the plea seeking Roy's disqualification but a division bench of the High Court remanded the defection petition for fresh decision.
Later, the Speaker in June 2022 in a fresh decision ruled that there was no evidence to establish the defection.
Adhikari and Ambika Roy then moved the High Court, stating there was a record of a press conference to prove the defection. They were represented by Senior Advocate Billwadal Bhattacharyya.
However, State Advocate General Kishore Datta, appearing for the Speaker, argued that no certificate under Section 65B of the Evidence Act, 1872 was filed with regard to the news reports. He also denied allegations of bias against the Speaker.
Considering the submissions, the Court at the outset noted that the Speaker's decision was akin to a decision rendered by a Tribunal and thus it was amenable to judicial review.
After examining the Speaker's decision, the Court noted that the Speaker had proceeded to decide the case as a criminal trial. However, the Court opined that the law does not provide for making a defected legislator criminally liable for his decision.
"In our understanding, neither the Tenth Schedule nor the Rules of 1986 have provided for any criminal liability to be incurred by a member of the House in the event a petition alleging disqualification is allowed. Under Rule 8 of the Rules of 1986, the respondent No. 1 has two options at the conclusion of the consideration of a petition alleging disqualification. One of the options is to dismiss the petition under Rule 8 (1) (a). The next option under Rule 8 (1) (b) is to declare that the member in relation to whom the petition has been made has become subject to disqualification under the Tenth Schedule. Therefore, none of the options available to the respondent No. 1 deciding a petition for disqualification entails any criminal liability as against the member."
Therefore, the Court ruled that the Speaker had no basis to hold that the proceedings for disqualification were quasi criminal in nature and that, the yardstick of proof is beyond reasonable doubt in "contradistinction to preponderance of probabilities as in a civil case."
Applying the test of preponderance of probabilities in the case against Roy, the Court noted that he had not denied the assertions against him. It also took into account the fact that Roy chose not to contest the present plea.
"The pleadings filed by the second writ petitioner before the respondent No. 1 had both transcripts of the press conference as also the electronic evidence of the same and electronic evidence of the social media platforms. The pleadings also had certificates under section 65B of the Evidence Act, 1872," it added.
The Court added that Adhikari had established through the pleadings available before the Speaker that Mukul Roy was present in the press conference held by Trinamool Congress.
"The respondent No. 2 has not denied the fact that the press conference was held by AITC and that he was present therein. He has also not denied the contents of the press conference as stated by the second writ petitioner. He has sought to explain his presence on the ground of the ill-health of his wife. The material fact as to his joining the AITC as stated in the press conference has not been denied by the respondent No. 2," it said.
Thus, the Court allowed the petitions moved by Adhikari and Ambika Roy. It decided against remanding the matter to Speaker for fresh hearing.
"In the facts and circumstances of the present case, given the quantum of time spent by the respondent No. 1 in deciding a petition for disqualification and given the fact that, the first decision of the respondent No. 1 dismissing the disqualification petition, was set aside by the Coordinate Bench and given the fact that, in the order impugned of the respondent No. 1, he has misapplied the yardstick for evaluation of evidence and misappreciated the facts presented before him, and given the fact that, the tenure of the state assembly is limited, remanding the disqualification petition to the respondent No. 1 for fresh hearing will not subserve the ends of justice," the Court reasoned.
Senior Advocate Billwadal Bhattacharyya with advocates Anish Kumar Mukherjee, Suryaneel Das, Adv and Tamoghna Pramanick represented the petitioners.
Advocate General Kishore Datta and advocates Vivekananda Bose, Debopriyo Karan and Ratikanta Pal represented the Speaker and other respondent.
[Read Judgment]