'Danger To Democracy' : Supreme Court Questions Rationality Of Maharashtra Assembly Suspending 12 BJP MLAs Beyond A Session

The Supreme Court on Tuesday continued hearing of writ petitions filed by 12 BJP MLAs challenging the resolution passed by the Maharashtra Assembly on July 5, 2021 to suspend them for a period of 1 year for alleged misconduct in the house.

A bench comprising Justice AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar posed questions to Senior Advocate Aryama Sundaram, who appeared for the State of Maharashtra, regarding the rationality of suspension extending beyond the period of the session.

"When you say that action has to be rational, there should be some purpose of suspension and the purpose is with regards to the session. It should not travel beyond that session. Anything other than this would be irrational. The real issue is about the rationality of the decision & the same should be for some purpose. There should be some overwhelming reason. Your decision of 1 year is irrational because of the deprivation of the constituency being unrepresented for more than 6 months. We are talking about the spirit of Parliamentary law now. It is the interpretation of the Constitution in the manner it ought to be dealt," remarked Justice Khanwilkar.

"Another thing, the Election Commission also got the role. Where a vacancy is there, elections have to be conducted. In case of suspension, there will not be an election but if a person is expelled then election will be conducted. Another is danger to the democracy. Suppose there is a slender lead of the majority, and 15/20 people are suspended, what would be the fate of democracy?" Justice CT Ravikumar added.

"There has to be some rational & constitutional principle that houses meet in sessions. If a house is elected, what is the concept of meeting in sessions only? A particular session he may be suspended but beyond that time the rationality question comes," Justice Dinesh Maheshwari remarked.

Senior Advocate Sundaram raised arguments regarding the limited scope for judicial review over the business within the assembly.

On January 11, 2022, the bench had expressed an inclination to interfere with the resolution passed on July 5, 2021, by the Maharashtra Legislative Assembly to suspend 12 BJP MLAs for one year for alleged misbehaviour, as the term of suspension was beyond the permissible limits. The bench headed by Justice AM Khanwilkar observed that the suspension for one year was "worse than expulsion" as the constituency is remaining unrepresented. If there is expulsion, there is a mechanism to fill up the vacancy. The suspension for one year will amount to a punishment on the constituency, the bench observed.

The bench while referring to Article 190(4) of the Constitution had pointed out that as per the relevant rules, the Assembly had no power to suspend a member beyond 60 days. It had also said that as per Section 151 A of the Representation of the People Act, 1951 a constituency cannot go unrepresented for a period beyond 6 months.

Saying so, the bench refused to accept the argument of Senior Advocate C Aryama Sundaram for the State of Maharashtra that the Court cannot examine the quantum of punishment imposed by a legislative assembly. Pursuant to the bench expressing these views, Senior Counsel on January 11, 2022 had sought time to take instructions from the State.

Power Of Legislature To Suspend Member Is Available & Correctness Of Exercise Of That Power Would Not Be Open To Judicial Review; When MLA Is Suspended Constituency Has Member & He Continues To Remain Member But Without Any Voice: Senior Advocate C Aryama Sundaram

Appearing for State of Maharashtra, Senior Advocate C Aryama Sundaram commenced his argument by submitting that power of Legislature to punish for privilege etc in proceedings before itself did not have any limitation.

"If the Legislature had to make rules which could provide beyond this period, would it not be hit by the act made by the Parliament or the Constitution?" asked Justice AM Khanwilkar, the presiding judge of the bench. Justice Khanwilkar while referring to the Top Court's judgement in Pandit M. S. M. Sharma vs Shri Sri Krishna Sinha & Others remarked that rules framed can be regarded as procedure established by law under Art 21 and thus they are enforceable per se.

"Despite these rules, the House can deviate from the rules. Deviation is permissible but these rules are benchmark, guide. Deviation can be there of the procedure but not of substantive matters. Constitution Bench has said that it is not untrammeled power of the legislature & they are bound by the law laid down by the Parliament and the Constitution," Justice Khanwilkar further remarked.

Responding to the remarks made by the bench, Senior Counsel submitted that substantive right could have been if the Speaker had acted under Rule 53 but when the legislative assembly acted, there was no rule which either created or removed any such power.

"If you can expel, the suspension for 1 year is less. The power of expulsion is a much wider punishment. To expel someone from the house. People who are voting in the constituency have elected a man and the legislature expels him but this is much wider than suspension. If the power of expulsion has to be read in, the power of suspension will follow," Senior Counsel further added.

Responding to the reference made by the bench to Article 190(4) of the Constituton, Sundaram argued that the said provision did not not give a calendar period of 60 days but dealt with absence from the meetings of the house for 60 days. To further substantiate his contention, Sundaram added that Article 190(4) is not absolute and is not the rule of disqualification.

Emphasising the word "May" referred to in Article 190(4), Senior Counsel submitted that unlike Article 190(1), Art 190(2) and Article 190(3), Article 190(4) is discretionary and not mandatory. It is for the house to declare the seat vacant or not declare the seat vacant. It is not a necessary consequence that you ipso facto vacate the seat. It's with the house, he further added.

"Under Article 190(2) & (3) r/w Art 190(1) of the Constitution, the act ipso facto results in vacancy but in Art 190(4) vacancy will arise only if the house declares it to be vacant," Sundaram submitted to substantiate his contention.

Senior Counsel also contended that the power of Legislature to suspend the member is available and the correctness of exercise of that power would not be open to Judicial Review

"If I have the power to punish & the Constitution nor any Parliamentary Law defines, it is for the legislature to decide the same in the manner it seems fit. Suspension or expulsion depriving the constituency of representation is itself not the ground. We have to see whether art 190 gives a max time limit & if so how much. If Article 190 be relied on then there are 60 days of sittings subject to my submission of Art 190(4) being discretionary", he further argued.

Embargo U/S 151 A Of Representation of the People Act, 1951 Is 1 Year & Not 6 Months

On the aspect of Section 151 A of the Representation of the People Act, 1951 as per which a constituency cannot go unrepresented for a period beyond 6 months, Senior Counsel contended that there is no embargo of 6 months but is of 1 year.

"The section contemplates that the seat can remain vacant for a period of 1 year. Even 151 A contemplates that a seat can remain vacant in a given situation for a period of 1 year. Power of suspension or expulsion is even for terms of house & not of session. Term of the house comes to an end on the expiration of the term of the house. Each is a separate entity in itself," he added.

"Why should it be permitted beyond the session? It is a complete activity in itself. The session as a whole is there. With a change of session, there is a completely new session. Even if it is punitive, it is for the whole session and not beyond the session," remarked Justice Khanwilkar.

"Expulsion is higher than suspension but the ultimate reason as to what is happening is suspension will defeat the provisions of parliamentary law. Suspension for a period of 1 year is not being considered there (in Raja Ram Pal's case). In suspension re-election is ruled out and 151A is also ruled out. The principle is 6 month. What is happening is SUSPENSION IS WORKING MORE ONEROUS THAN EXPULSION," remarked Justice Dinesh Maheshwari.

"Spirit is that a Constituency cannot be left unrepresented for a long time. Implied necessity principle we have to consider," added Justice Khanwilkar.

Judicial Review With Regards To Conduct Of The House Can Only Be For To Gross Illegality, Otherwise It Will Militate Against Separation Of Power

With regards to the power of the court to exercise judicial review, Sundaram submitted that the scope of judicial review is based on what is being reviewed and varies on the nature of the action. It was also his contention that the Court can only exercise the power of exercising judicial review for the conduct of the house only when there is gross illegality.

Extensive references were made to the Supreme Court decision in the Raja Rampal Case during the hearing on the scope of judicial review.

The hearing would continue tomorrow wherein the petitioners would make rejoinder submissions.

Case Title: Ashish Shelar And Ors. Versus The Maharashtra Legislative Assembly & Anr.| W.P.(C) No. 797/2021 & Connected Cases

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