Explained: How Calcutta High Court Redefines Articles 122 and 212 of the Constitution

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Judicial review of legislative process aside, this case again brings to light the unregulated powers of the Speaker/Chair of the House. Despite Supreme Court decision in Keisham Meghachandra Singh mandating the Speaker to decide disqualification petitions under the Tenth Schedule to the Indian Schedule within a period of three months, Biman Banerjee did not take a decision on Mukul Roy’s defection and his consequent disqualification within the stipulated period. Such abuse of power by the Chair is pervasive.

Panchkula (AJRI): On 28 September 2021, the Calcutta High Court delivered a significant order in a plea filed by Ambika Roy, a sitting MLA of the West Bengal Legislative Assembly elected on BJP’s ticket, against the appointment of Mukul Roy as the chairperson of the Public Accounts Committee (PAC). The primary ground of challenge was that once Mukul Roy defected from BJP to TMC, the Speaker could not have chosen him to chair PAC given the long tradition of choosing a legislator from the opposition parties for the position. While the Court did not finally rule on the validity of Roy’s selection as the chairperson as his disqualification petition for defection is still pending before the Speaker, it made certain observations on the ambit of judicial review of legislative actions, which form the basis for this short opinion piece.

Judicial Review of Legislative Process

Articles 122 and 212 of the Constitution define the ambit of judicial review of legislative processes in India. Article 122(1) states that ‘the validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.’ A similar prohibition is set for judicial review of proceedings of state legislative assemblies under Article 212 of the Constitution. The Supreme Court has interpreted these provisions as limiting judicial review only in cases of procedural irregularity and not when substantive illegality is found. For instance, in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha and Ors, a Constitution Bench of the Court noted that

“On a plain reading. Article 122(1) prohibits the validity of any proceedings in Parliament from being called in question in a court merely on the ground of irregularity of procedure. In other words, the procedural irregularities cannot be used by the court to undo or vitiate what happens within the four walls of the legislature But then, ‘procedural irregularity’ stands in stark contrast to ‘substantive illegality’ which cannot be found included in the former. … The proceedings which may be tainted on account of substantive illegality or unconstitutionality, as opposed to those suffering from merely irregularity thus cannot be held protected from judicial scrutiny by Article 122(1) inasmuch as the broad principle laid down in Bardlaugh 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.”

While the Supreme Court delineated substantive illegality from procedural irregularity, the understanding of ‘substantive illegality’ remained unclear. In later decisions, the Court tried to define the phrase by connecting it to the violation of any constitutional mandate. For instance, in his dissenting opinion in the K.S. Puttaswamy (II) judgment, Justice Chandrachud observed that a legislative process would be amenable to judicial review ‘if it suffers from illegality or from a violation of constitutional provisions’. The Constitution Bench in Roger Mathew followed the same definition and noted that Article 122 does not prohibit judicial review when a challenge is made on the ground of illegality or unconstitutionality under the constitutional scheme.

The Calcutta High Court adopted and extended the this approach in Ambika Roy v. Hon’ble Speaker, West Bengal Legislative Assembly and Ors. to conclude that judicial review under Article 212/122 would even include violation of constitutional conventions. The Court noted, particularly by referring to the comments made by the Speaker on the floor of the House, that a rich tradition and convention is being followed for at least the last 54 years to appoint a legislator form the opposition party as the chairperson of PAC. Further, as the Speaker found himself bound by such a tradition, it elevated the tradition to the status of a constitutional convention, the violation of which would be amenable to judicial review under Article 212.

While such a formulation of Article 122/212 expands the scope of judicial review of legislative processes, it still keeps ‘substantive illegality’ linked to the violation of a constitutional norm. There is no clarity on whether the courts would also include a violation of parliamentary rules as a ground for allowing judicial review, a scenario which has occurred on multiple instances in the near past, for instance, when the Deputy Chairperson of Rajya Sabha did not allow division of votes in clear violation of the ‘Rules of Procedure and Conduct of Business in the Council of States’.

In this backdrop. I argue that the Indian judiciary ought to adopt the comparative political process theory as advocated by Prof. Stephen Gardbaum and allow judicial review in all those scenarios that constitute as ‘political process failure’. In his paper titled ‘Comparative Political Process Theory’, Gardbaum refines and builds on the work of John Hart Ely on judicial review as a tool for the protection of representative democracy by broadening the types of political process malfunctions that a representative constitutional democracy might face on account of autocratic governance. As against Ely’s two-pronged understanding of political process failures – (1) where the incumbent government attempts to entrench itself to avoid political change in power; and (2) where the majority suppresses and systematically disadvantages the minority, Gardbaum includes ‘all the processes by and through which public power is allocated, exercised and held to account’ as part of his comparative political process theory. Based on this understanding, he develops a normative theory of judicial review and the specific manner in which the courts could secure the structures and processes of representative democracy which gives central importance to the deliberative model of law-making.

One of the political process failures that Gardbaum discusses is the failure of the legislature to hold executive accountable (a fundamental constitutional principle, an offshoot of the separation of powers). Applying this theory to the scenario in Ambika Roy, it could be argued that appointment of a legislator who holds allegiance to the majority party as the chairperson of the PAC could impact legislative ability to hold the executive accountable, and thus warranting judicial review. It would then make irrelevant the inquiry of whether the tradition has taken the shape of a constitutional convention. The mere fact of it being an important parliamentary rule or tradition integral to the legislature’s ability to hold executive accountable would support judicial review in case of its violation.

There are two benefits of adopting the comparative political process theory. First, adopting this approach would delink ‘substantive illegality’ from the violation of a constitutional norm and allow courts to quash any legislative action, including the passing of a law, in cases of violation of core parliamentary rules and tradition designed to achieve this manner of accountability. For instance, it would make it possible to quash any law only on the ground that the political majority did not extend legislative due process to the opposition parties and fast-paced the bill without any meaningful deliberation.

Second, adopting this approach would also equip judges with a definite tool to determine whether a particular violation calls for judicial review or not. Under the present framework, and as evident from the chain of cases pertaining to the possibility of judicial review of Speaker’s certification of a bill as a Money Bill, the determination that a particular violation is an irregularity or an instance of substantive illegality is a highly discretionary process. The comparative political process theory could guide the exercise of such discretion and may bring certainty in decision-making.

Concluding Remarks

Judicial review of legislative process aside, this case again brings to light the unregulated powers of the Speaker/Chair of the House. Despite Supreme Court decision in Keisham Meghachandra Singh mandating the Speaker to decide disqualification petitions under the Tenth Schedule to the Indian Schedule within a period of three months, Biman Banerjee did not take a decision on Mukul Roy’s defection and his consequent disqualification within the stipulated period. Such abuse of power by the Chair is pervasive. To quote a few instances from the recent past, the Speaker in Shivraj Singh Chouhan adjourned the house to avoid floor test; the Speaker of the Lok Sabha has virtually stopped referring bills to departmentally-related standing committees and wrongly certified many bills as Money Bills; and the Deputy Chairperson of Rajya Sabha denied division of votes despite legislators’ specific demand. Instead of being a neutral player envisaged to ensure legislative due process to all political parties, the Chair thus is being reduced to just another partisan office. While expecting any reforms from the legislature might not be reasonable in the present political scenario, the judiciary could definitely play important role in regulating the wide powers of the Chair. It is, therefore, important that courts approach such cases of abuse not as independent inquiries, but as a part of the larger scheme towards ensuring independence of the Chair.

Source: This article written by Anmol Jain first published on Indian Constitutional Law and Philosophy, and republished in the interest of justice.

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