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SC stays Calcutta HC order disqualifying Mukul Roy as Bengal assembly member
A bench of Chief Justice of India (CJI) Surya Kant and Justice Joymalya Bagchi issued the order, months before the term of the House ends in May, and elections in the state
The Supreme Court on Friday stayed the Calcutta high court order disqualifying Mukul Roy as a member of the West Bengal legislative assembly for returning to the ruling Trinamool Congress (TMC) after getting elected on a Bharatiya Janata Party (BJP) ticket in 2021.
A bench of Chief Justice of India (CJI) Surya Kant and Justice Joymalya Bagchi issued the order, months before the term of the assembly ends in May, and elections in the state. It sought responses from the assembly speaker Biman Banerjee and BJP lawmakers Suvendu Adhikari and Ambika Roy, who petitioned the high court for Mukul Roy’s disqualification. “Let the counter affidavit be filed in four weeks and rejoinder in response within two weeks,” it said.
Mukul Roy’s son, Subhranshu Roy, a TMC member, challenged the disqualification in the Supreme Court as his father is hospitalised. He argued that Biman Banerjee carefully went through the material produced for the disqualification and ruled against it in June 2022.
The high court on November 13 reversed Banerjee’s ruling. Adhikari and Ambika Roy cited a video dated June 2021, showing the ceremony, where Mukul Roy and his son joined TMC at the ruling party’s headquarters, where chief minister Mamata Banerjee was also present.
Subhranshu Roy argued the speaker rejected the disqualification plea as the video could not be certified as per the Evidence Act’s Section 65B. Advocate Preetika Dwivedi, who represented him, said the high court held that the certification was not necessary while deciding the disqualification plea under the Constitution’s Tenth Schedule or the anti-defection law.
The bench remarked, “In today’s age, where there is Artificial Intelligence, we do not know whose face is there. If there is electronic evidence, it has to be tested.”
Senior advocate Gaurav Agarwal, who appeared for the BJP leaders, submitted that Mukul Roy was elected on a BJP ticket and clearly defected. He pointed out that in no event can he continue as a member of the assembly.
The bench noted that the assembly term ends in four months. “Not staying this judgment will have consequences.” The Supreme Court said that the high court’s reasoning contradicted its well-settled decision in the Arjun Panditrao Khotkar case (2020), which held the Section 65B certificate to be a condition precedent for admissibility of any electronic evidence. “To say that Section 65B will be relaxed for disqualification will do a disservice to the precedent laid down by this court.”
The high court held that the Section 65B certificate will be relevant only for considering secondary evidence in the absence of a primary one. It cited the electronic evidence and a transcript of a press conference apart from other material.
Mukul Roy did not deny his presence at the press conference. The disqualification petition against him was filed days after the press conference. The high court called the speaker’s order perverse.
