New Delhi, Jan 16 (UNI) The Supreme Court on Friday stayed the operation of the Calcutta High Court judgment disqualifying senior politician Mukul Roy from the West Bengal Legislative Assembly under the anti-defection law.
A Bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi passed the interim order while issuing notice on a petition filed by Subhranshu Roy, son of Mukul Roy, challenging the High Court’s decision.
The Bench directed that the High Court’s judgment shall remain in abeyance for the time being.
Mukul Roy had won the Krishnanagar North Assembly seat in the 2021 West Bengal Assembly elections on a BJP ticket and was alleged to have subsequently joined the Trinamool Congress.
Disqualification petitions were moved by BJP Leader of Opposition Suvendu Adhikari and BJP MLA Ambika Roy.
After the Speaker of the West Bengal Legislative Assembly declined to disqualify Mukul Roy, Adhikari approached the Calcutta High Court, which set aside the Speaker’s decision and ordered Roy’s disqualification.
Before the Supreme Court, Advocate Preetika Dwivedi, appearing for the petitioner, contended that the High Court exceeded its limited power of judicial review by directing the disqualification of a sitting legislator.
She submitted that the Speaker had rejected the disqualification petitions on the ground that the social media material relied upon to prove defection was not authenticated in accordance with Section 65B of the Indian Evidence Act.
It was further submitted that the High Court erred in holding that strict compliance with Section 65B was not required in proceedings under the Tenth Schedule of the Constitution.
Dwivedi also informed the Court that the petition had been filed by Mukul Roy’s son as Roy was unwell.
Senior Advocate Gaurav Agarwal, appearing for Suvendu Adhikari and Ambika Roy, opposed the plea and argued that Mukul Roy, after contesting the election on a BJP ticket, had openly joined the Trinamool Congress, which clearly amounted to defection under the law.
Agarwal also questioned the locus of Subhranshu Roy to file the petition.
However, the Bench was not persuaded by the objection on locus. “If he is in a critical situation, why can’t a family member file the petition? He is also made a respondent,” the Chief Justice observed.
The Bench also expressed prima facie reservations about the High Court’s reasoning on the non-applicability of Section 65B of the Evidence Act to anti-defection proceedings.
Justice Bagchi noted that the Constitution Bench judgment in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, which authoritatively settled the law on Section 65B, arose out of an election petition.
“To say that Section 65B will stand relaxed for the purpose of disqualification will do a disservice to the precedent,” Justice Bagchi remarked, also questioning the reliance placed on the principle of non-traverse to justify disqualification.
Opposing the stay, Agarwal submitted that a prima facie case of defection was made out.
The Bench, however, ordered a stay of the High Court judgment, keeping in view the serious consequences flowing from disqualification.
Noting that the tenure of the present Assembly is nearing its end, the Chief Justice observed, “The Assembly is coming to an end in four months.” He added that if Mukul Roy contests the next election, appropriate applications could be moved and would be considered by the Court.
The matter will be heard further after responses are filed.
