Calcutta High Court (Appellete Side)
Sayan Mukherjee & Anr vs Principal Secretary To His Excellency ... on 12 September, 2023
12-09-2023
Item No.1
IN THE HIGH COURT AT CALCUTTA
Subrata Constitutional Writ Jurisdiction
Bhattacharyya Appellate Side
AR(C)
WPA(P) No.247 of 2023
Sayan Mukherjee & Anr.
-vs-
Principal Secretary to His Excellency The Governor of
West Bengal & Anr.
Mr. L.K. Gupta, sr. adv.
Mr. Achintya Kumar Banerjee, adv. ...for the petitioners
Mr. Billwadal Bhattacharyya, DSG
Mr. Ayanabha Raha, adv. ...for the Union of India
Mr. Tapan Kumar Mukherjee, AGP
Mr. Somnath Naskar, adv. ...for respondent no.3
The subject matter of this public interest litigation is the West Bengal University Laws (Amendment) Bill, 2022. It was passed by the State legislature on 7th June 2022 and sent to the Hon'ble Governor on 15th June 2022 for his assent.
The relief sought in this writ application is an order in the nature of mandamus directing the Hon'ble Governor of the State to forthwith give assent to the said bill.
At the outset Mr Billwaldal Bhattacharyya, learned Deputy Solicitor General appearing for the Union of India, respondent no.2 in the writ, takes the following points with regard to maintainability of this writ 2 application. His arguments are as follows.
(a) This writ application has been pending before the regular bench for some time and that there is no urgency compelling this court having jurisdiction for a limited period of time to take up this matter.
(b) Under Article 361 of the Constitution of India read with Article 212, the Hon'ble Governor is immune from answering the subject issue. He cites a division bench judgement of the Madras High Court in the case of M. Kannadasan v. Union of India rep. by Ministry of Home Affairs and Anr. reported in 2020 SCC Online Mad.8 where the court had relied on an earlier decision of that court in S. Nalini v. Governor of Tamil Nadu reported in (2019) 6 MLJ 129 which said:
"16. It is to be stated that Article 361 of the Constitution of India insulates the Governor of the State from being questioned or make him answerable before any Court with respect to the discharge of his official duties. Article 361 of the Constitution of India gives complete immunity and privilege to the Governor of the State in discharge of his constitutional obligation. Therefore, questioning the discharge of act of the Governor or failure to discharge his constitutional obligations cannot be subjected to judicial scrutiny under Article 226 of the Constitution of India by arraying him as a party to the writ proceedings. In this case, even assuming that the Governor of the State did not take into account the Advice given by the Council of the Ministers, it will not be a ground for the petitioner to file this writ petition and contend that the protection of life and personal liberty guaranteed under Article 21 of the Constitution of India has been infringed. The privileges and immunity conferred on the Governor of the State under Article 361 of the Constitution of India is a clear bar for the petitioner to file the present writ petition. The Governor of the State cannot therefore be equated with the instrumentalities of the Government enumerated under Article 12 of the Constitution of India who are amendable to the jurisdiction of this Court under Article 226 of the Constitution of India.
17. Thus, in the light of the above discussions and decisions of the Supreme Court, it is abundantly clear that the Governor of the State 3 is insulated from being questioned or made answerable to the Courts with respect to discharge of his constitutional functions and duties. The immunity so conferred on the Governor of the State is unfettered and it cannot be intruded by this Court in exercise of the power conferred under Article 226 of the Constitution of India. The personal immunity under Article 361 of the Constitution of India is clear and specific in not to proceed against the President or a Governor of a State, and therefore, the present writ petition, arraying the Governor of the State as respondent No.1 is not maintainable."
b) He prays for dismissal of the writ application. At any rate, directions for filing affidavits should be made at this stage if the court is not inclined to dismiss it.
c) He also submits that the writ petitioner is a political functionary, has been set up and that he has no locus standi to maintain the writ application.
d) The writ petitioner has not come with clean hands.
Now, we deal with the submissions of Mr L.K. Gupta, learned senior advocate appearing for the petitioners.
Placing before us Article 200 of the Constitution of India Mr Gupta argues that the Hon'ble Governor had three options under that Article. The first was to assent to the bill sent to him. The second was to withhold assent and send it back to the legislature with or without suggestions for reconsideration. The third was to send it to the President of India.
He alleges that in this case none of the three options has been exercised. The bill is just pending consideration before the Hon'ble Governor.
Citing Article 163 of the Constitution of India he 4 argues that in the matter of assent to a bill also the Hon'ble Governor is required to act in accordance with the advice of the Council of Ministers.
He cites the case of Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly and Others reported in (2016) 8 SCC 1 and an unreported decision of the Supreme Court in the case of State of Telengana v. Secretary to Her Excellency, the Governor for the State of Telengana and Anr. made on 24th April 2023 to argue that Article 361 of the Constitution of India does not prevent the court from entertaining matters of this nature. He submits that in those two cases decided by the Supreme Court the question about assent to bills was involved and that the grievance had been entertained by the Supreme Court.
We find from the records that this self-same writ petition was moved before the bench comprising of I.P. Mukerji and Biswaroop Chowdhury, JJ on 16th May 2023. At that time it was submitted that the tenure of the Vice-Chancellors of most of the universities covered by the bill was expiring on 31st May 2023. On that day, the bench directed the writ application to be treated as a representation to the Hon'ble Governor for his consideration and made the application returnable on 12th June 2023 after service on the State. Thereafter, this writ was taken up by the regular bench on 17th July 2023 when it directed the matter to appear on 21st August 2023 to be heard on the question of maintainability.
Whether at all a case has been made out to make the Hon'ble Governor "answerable" under Article 361 of 5 the Constitution can only be evident on filing of affidavits. Then we would have to decide whether the application of the above decisions would permit further inquiry into this matter by the court.
Thus, in our view, the question of maintainability of the writ can only be considered after filing of affidavits and upon consideration of the above Madras High Court decision read with the two judgements of the Supreme Court referred to by us above.
As far as the submission with regard to the background and locus standi of the writ petitioner is concerned, we observe that the writ application was admitted on 16th May 2023 and no steps have been taken for dismissal of the writ on this ground even thereafter. Furthermore, the questions involved are very constitutional in nature and of great importance and this writ in our prima facie opinion, deserves to be considered in public interest.
The main submissions of Mr Gupta have been recorded in the order admitting the writ application. There is little doubt at this interim stage that the Hon'ble Governor has only three options: to assent to the bill, to send the bill to the President or to remit the bill to the legislature for reconsideration. Article 200 provides that if the bill is sent to the legislature and returned with or without amendment, the Hon'ble Governor is bound to give assent to the same.
In the circumstances, we only direct that an affidavit-in-opposition be filed by the office of the Hon'ble Governor disclosing the status of the bill. Such affidavit 6 is to be filed by 4th October 2023; affidavit-in-reply by 13th October 2023.
List this writ application for consideration on 16th October 2023.
[I.P. Mukerji, J] [Hiranmay Bhattacharyya]