SC stays Calcutta High Court order disqualifying Mukul Roy for defecting to TMC

Before the Supreme Court, Advocate Preetika Dwivedi, appearing for Subhranshu Roy, contended that the high court had exceeded its jurisdiction. She said that Subhranshu had filed the petition as Mukul Roy was unwell.

The counsel said the Assembly Speaker had rejected petitions seeking Mukul Roy’s disqualification, saying the videos submitted to establish the defection were not authenticated in terms of Section 65B of the Indian Evidence Act, which governs the admissibility of electronic records. The counsel added that the high court, however, reversed this, saying that in proceedings under the Tenth Schedule of the Constitution, strict adherence to Section 65B was not necessary.

Appearing for the BJP leaders, Senior Advocate Gaurav Agarwal said the press conference where he appeared with the BJP leaders was recorded on video and presented. The Supreme Court bench, however, stressed the importance of proving electronic evidence. “Video recording is an allegation, it is not proof as per law,” the bench said.

The CJI added, “And in this era of artificial intelligence, God knows whose face…The rule of proving the electronic evidence has to be followed.”

Agarwal said the Section 65B certificate was produced to back its authenticity.

Justice Bagchi pointed out that the seminal judgment on the subject of admissibility of electronic evidence is in an election petition—Arjun Panditrao Khotkar vs Kailash Gorantyal. “Therefore, to say Section 65B should stand relaxed for the purpose of disqualification would be squarely against that judgment…The High Court says that forget electronic evidence, we have transcripts, and it is a case of non-traverse (failure to deny an allegation). For non-traverse, you will disqualify a person?” Justice Bagchi asked.

The court asked the respondents to file counter-affidavits within two weeks.

Agarwal urged the bench not to stay it, but the bench pointed out that the Assembly term was coming to an end in four months. Agarwal expressed apprehension that he may again contest the elections. The CJI said, “If he contests as an MLA, you will move an application. We will see what needs to be done.”

When the BJP raised objections

In 2021, Ambika Roy filed a case objecting to Mukul Roy being appointed chairman of the Public Accounts Committee (PAC) of the Assembly. Traditionally, representatives of the Opposition hold the PAC chair. When the Opposition had sent a letter to the Speaker, he responded that there was no question of dismissing Mukul Roy’s MLA post or removing him from the PAC, as he was still officially a member of the BJP.

Following this, the Leader of Opposition Suvendu Adhikari also filed a case, arguing that Roy should resign under the anti-defection law of the Tenth Schedule of the Constitution.

The Calcutta High Court had then asked the Speaker of the Legislative Assembly to reconsider his decision after hearing all parties. Speaker Biman Banerjee later informed the court in 2022 that there was no basis to dismiss Roy as an MLA based on the evidence submitted.