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2013 Supreme(Cal) 379
High Court of Judicature at Calcutta
DIPANKAR DATTA, J.
Gouranga Chatterjee
Versus
The State of West Bengal & Others
W.P. 4887 (W) of 2013 (Appellate Side)
Decided On : 08-07-2013
For the Petitioner:B.R. Bhattacharyya, Sr. Advocate, Rabi Sankar Chattopadhyay, Uday Sankar Chattopadhyay, Suman Sankar Chattopadhyay, Shamim Ahamed, Advocates.
For the Respondents:R1 to R3, Ashok Kumar Banerjee, Govt. Pleader, Answar Mondal, Suman Sengupta, Advocates, R4, B. K. Chatterjee, Advocate General, Subrata Talukder, Abdul Momen, Kaushik Chandra Gupta, Advocates.
The Speaker of the Legislative Assembly does not have absolute immunity from judicial review and the Court has the power to scrutinize the proceedings of the Legislative Assembly if there is a brazen infringement of the fundamental rights of a complaining party.
Headnote:
LEGISLATIVE ASSEMBLY - SPEAKER - POWER OF JUDICIAL REVIEW - MEMBER ASSAULTED - NO IMMUNITY - FIR - MANDAMUS - MEDICAL NEGLIGENCE - COMPLAINT - JURISDICTION.
Fact of the Case:
A member of the West Bengal Legislative Assembly was assaulted by other members during a session. He complained to the Speaker, but no action was taken. He then filed a writ petition in the Calcutta High Court, seeking a direction to the Speaker to lodge an FIR and to the hospital authorities to inquire into the alleged medical negligence.
Finding of the Court:
1. The Court held that the Speaker does not have absolute immunity from judicial review and that the Court has the power to scrutinize the proceedings of the Legislative Assembly if there is a brazen infringement of the fundamental rights of a complaining party. 2. The Court held that the petitioner had no right of action to move the Court for the purpose of obtaining a direction on the Hon’ble Speaker to lodge an FIR, as he could have approached the police himself. 3. The Court held that the petitioner was not entitled to a direction to the hospital authorities to inquire into the alleged medical negligence, but that he could file a complaint before the appropriate forum and, if medical negligence was proved and the State Government failed to act, the Court could assume jurisdiction to direct the State Government to initiate appropriate disciplinary action against the erring doctors.
Issues: 1. Whether the Speaker of the Legislative Assembly has absolute immunity from judicial review. 2. Whether the Court has the power to scrutinize the proceedings of the Legislative Assembly if there is a brazen infringement of the fundamental rights of a complaining party. 3. Whether the petitioner had a right of action to move the Court for the purpose of obtaining a direction on the Hon’ble Speaker to lodge an FIR. 4. Whether the petitioner was entitled to a direction to the hospital authorities to inquire into the alleged medical negligence.
Ratio Decidendi: 1. The Court held that the Speaker does not have absolute immunity from judicial review and that the Court has the power to scrutinize the proceedings of the Legislative Assembly if there is a brazen infringement of the fundamental rights of a complaining party, relying on the decision of the Supreme Court in Special Reference No. 1 of 1964. 2. The Court held that the petitioner had no right of action to move the Court for the purpose of obtaining a direction on the Hon’ble Speaker to lodge an FIR, as he could have approached the police himself. 3. The Court held that the petitioner was not entitled to a direction to the hospital authorities to inquire into the alleged medical negligence, but that he could file a complaint before the appropriate forum and, if medical negligence was proved and the State Government failed to act, the Court could assume jurisdiction to direct the State Government to initiate appropriate disciplinary action against the erring doctors.
Final Decision: The Court disposed of the writ petition, reserving the liberty of the petitioner to lodge an FIR as well as lodge a complaint of medical negligence.
1) A member of the West Bengal Legislative Assembly is the petitioner in this writ petition which includes in the array of respondents, the Hon’ble Speaker of the said legislative assembly as the fourth respondent.
2) It is claimed by the petitioner that while the winter session of the said legislative assembly was in progress, the leader of the opposition and other members owing allegiance to the Left Front had given an adjournment notice to the Hon’ble Speaker in respect of alleged violation of guidelines by the Reserve Bank of India and the Securities Exchange Board of India by various chit funds and the situation arising therefrom. The aforesaid adjournment notice was rejected whereupon the leader of the opposition raised his voice of protest. The Hon’ble Speaker suspended 4 (four) opposing members who had lent their voices to the leader of the opposition. This was followed by utter chaos and mayhem. One lady member owing allegiance to the ruling party chased another lady member owing allegiance to the opposition and pulled her by the hair. The victim member was thereafter dragged by the assailant and other members who joined her, towards the Treasury Bench. The petitioner attempted to save the victim member from being physically attacked by the assailants. It was at this stage that the petitioner was physically assaulted and severely beaten up by the members from the Treasury Bench by random fists and kicks on his chest, abdomen and head. Because of such physical assault, the petitioner sustained severe injury. The doctors attached to the said legislative assembly were thereafter called who rendered primary medical assistance and advised shifting of the petitioner for better care and treatment to the SSKM Hospital. There, the attending nurse immediately applied intravenous medicine making him drowsy whereafter a C.T. Scan was conducted. The outdoor ticket issued by the SSKM recorded “no definite intercranial huge is found or injury is seen. No neuro surgical intervention needed”. The petitioner was immediately discharged, allegedly without proper care and treatment.
3) After his return from the SSKM Hospital to the MLA Hostel, the petitioner started vomiting and his condition deteriorated. He was shifted to Ekbalpur Nursing Home Pvt. Ltd., where he was admitted and treated, and ultimately discharged on December 15, 2012. Upon various medical examinations, the doctors diagnosed the petitioner with fracture on the right temporal bone. The report further revealed that the petitioner had been suffering from Chronic Obstructive Pulmonary Disease, Pulmonary Hypertension and Cholelithiasis ASD.
4) Grievances voiced in this writ petition by the petitioner are two-fold: (i) lack of proper care and treatment at the SSKM Hospital when he was shifted there after suffering injury at the hands of certain rowdy members of the said legislative assembly; and (ii) apathy of the Hon’ble Speaker to act on the basis of his complaint dated January 8, 2013, whereby a polite request was made to conduct a probe in respect of the incident of December 11, 2012 and to take appropriate action against the assailants responsible for inflicting physical harm and injury to him.
5) The main prayers of the writ petition read as follows: “a) Issue a writ of mandamus commanding the Hon’ble Speaker of the House to initiate appropriate action and lodge an FIR relating to the incident of criminal assault upon the petitioner on 11.12.2012; b) Issue a writ in the nature of Mandamus directing the respondents no. 1 and 2 to enquire about the matter in respect of refusal for admission of the petitioner in SSKM Hospital on 11.12.2012 and to file a report before the Hon’ble Court and take steps against the erring officers of the SSKM Hospital in accordance with law;”
6) At the outset, Mr. Chatterjee, learned Advocate General representing the fourth respondent objected to the maintainability of the writ petition against the Hon’ble Speaker insofar as p
