TMI Blog2021 (9) TMI 1458X X X X Extracts X X X X X X X X Extracts X X X X ..... tral. 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngh'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. - WPA(P) 213 of 2021 - - - Dated:- 28-9-2021 - THE HON BLE JUSTICE RAJESH BINDAL, CHIEF JUSTICE (ACTING) AND THE HON BLE JUSTICE RAJARSHI BHARADWAJ, JUDGE For the Petitioner : 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 Respondent : Mr. Anindya Kumar Mitra, Senior Advocate (Through VC), Mr. Arif Ali, Mr. Prabhat. Srivastava and Mr. Sayantak Das, Advocates (Present in Court), Mr. Kishore Datta, learned Advocate General,Mr. T.M. Sidiqui and Mr. Debashish Ghosh, Advocates (Through VC) ORDER CONTENTS Sr. No. Particulars Para Nos. Page No. 1. Duty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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 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 Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 returning officer regarding acceptance of nomination form of respondent No. 2 was rejected. Further prayer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counts 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 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. Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke a decision for the first time when the authority concerned has not taken a decision in the eye of the law and 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 Assem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as the case may be. (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 Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poration, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall 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 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 oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommittees-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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Associa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt-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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch 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: (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 absolutis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vened, 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; (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 adequac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining 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 satisfacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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