Supreme Court Reserves Judgement On 12 BJP MLAs Plea Challenging Maharashtra Assembly's Resolution To Suspend Them For 1 Year

The Supreme Court today reserved judgement in batch of petitions by 12 BJP MLA's who were suspended from Maharashtra Legislative Assembly for a period of 1 year challenging the resolution dated July 5, 2021 passed by the Legislative Assembly.

The bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar while reserving judgement asked the parties to submit their written statements in one week.

Earlier the Top Court had issued notice. While issuing notice the  further made it clear that the pendency of the petition would not come in the petitioner's way to urge before the House regarding reduction of the tenure.

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 misbehavior, as the term of suspension was beyond the permissible limits.

A bench comprising headed by Justice AM Khanwilkar had 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 the provisions under section 151 A of the Representation of Poeple's Act, 1951 a constituency cannot go unrepresented for a period beyond 6 months.

Yesterday, the Supreme Court had 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.

Today Senior Advocate(s) Mahesh Jethmalani, Neeraj Kishan Kaul, Mukul Rohatgi and Siddharth Bhatnagar made their rejoinder submissions.

If Sessions Constitute A Distinct Period Of House Concerned, Rule Of House Is That On Propagation All Bill Lapses & Disciplinary Action Will Also Lapse; No Disciplinary Action Of The House Can Extend Beyond Session Unless It Is Expulsion: Senior Advocate Mahesh Jethmalani 

Senior Advocate Mahesh Jethmalani appeared for MLAs Sanjay Kute and Parag Alavani in the petition filed through Advocate Astha Prasad. 

Senior Counsel submitted that the action of the house to suspend the members was both illegal and constitutional. Referring to the provisions of Article 105(3) and 190(3) before the 44th Amendment of the Constitution, Senior Counsel submitted that there was a need to see if the House of Commons of the Parliament of UK had the power to impose a period of suspension of 1 years as imposed by Maharashtra Legislative Assembly. In this regard he further submitted that if the power to impose suspension didn't vest with the House of Commons in 1950, the suspension would be unconstitutional and illegal.

It was also his submission that the disciplinary action would lapse with the prorogation of the session of the house and that rights of the constituency were interfered by unnecessarily prolonged suspension than expulsion.

To substantiate his contention Senior Counsel during the course of hearing referred to the Top Court's judgement in Pandit M. S. M. Sharma vs Shri Sri Krishna Sinha & Others and Baton v. Taylor. He also cited the example of suspension of 12 members of Rajya Sabha in winter session due to their disorderly behaviour who were given an opportunity to tender an apology based on which their suspension could be revoked.

"The first is on each sitting, end of sitting & anything beyond the sitting would be more. That is the theme of the judgment. Anything beyond the session is excessive. This is even the rule set up in Rule 53," remarked Justice Khanwilkar.

"Argument on discretion on quantum is not absolute. The longer you extend the sentence for, the closer you go towards perversity. The House of Common did not have power to suspend beyond session. the suspension quantum is graded," submitted Senior Counsel in conclusion.

Merely Because Legislative Assembly Exercises Plenary/ Inherent Power, Argument Cannot Be That Power Is Not Subject To Judicial Review: Senior Advocate Neeraj Kishan Kaul 

Representing the MLAs Harish Pimple, Jayakumar Rawal and Yogesh Sagar in the petition filed through Advocate Karan Dev Chopra, Senior Advocate Neeraj Kishan Kaul referred to the Top Court's judgment in Reference under Article 143 of the Constitution of India, Special Ref. No. 1 of 1964 D/- 30-9-1964 AIR 1965 SC 745 to submit that inherent power, plenary power or power of contempt of Legislature of the Parliament was subject to Part III of the Constitution of India. For buttressing the submissions made by counsel for the State of Maharashtra, he also referred to the Top Court's judgment in Amrinder Singh vs Spl.Committee, Punjab Vidhan Sabha and Ors (2010 6 SCC 113).

"Merely under the guise of saying that you are exercising plenary power, can you have these kinds of sentences? Today we have a new system devised where for 1 year you keep a person suspended, isn't it destructive for representative democracy? Even Art 208 uses the word, subject to the provision of the Constitution. No plenary power can go against the constitution. If something suffers from illegality, it can never be against the Constitutional spirit & Part III," Senior Counsel further submitted.

On Senior Counsel's submission Justice AM Khanwilkar said, "Then you are inviting us to interpret the constitution, then it has to go to the Constitution Bench. We'll have to follow the discipline of 145(3). From the existing judgements that are in place, we will have to cull out and we will cull out."

Senior Counsel to conclude submitted that the punishment ("suspension of MLA's for a period of 1 year") was contrary to the rules and was disproportional.

You Cannot Chuck Members Who Are Against Government; At The End Of Day This Decision Is Completely Irrational: Senior Advocate Mukul Rohatgi 

Appearing for MLA's Kirtikumar , Ram Satpute, Narayan Kuche and Girish Mahajan in the petition filed through Advocate on Record Abhikalp Pratap Singh, Senior Advocate Mukul Rohatgi argued the Rules framed under Article 208 were mandatory rules, were higher than mere statutory rules and that the authority that has made the rules must abide by the same.

"Then it'll hit the Constitution Bench judgment. Constitution Bench judgement says that the house can deviate from the Rules. Spirit of the rules has to be maintained," Justice Khanwilkar remarked.

Responding to the remarks made by the bench, Senior Counsel referred to the Supreme Court Rules. On the aspect of referring the matter to the Constitution Bench judgment, the Senior Counsel submitted that the Top Court has always said that even if the matter is referred to the Constitution Bench, the smaller bench can pass an interim order.

In his rejoinder, Senior Counsel further submitted that, "This decision of 1 year apart from the fact that no rules have been followed, the decision for 1 year suspension de hors the rules would be grossly irrational within clauses (S) & (U) of Raja Rampal's case in para 431. You cant police me for 1 year or 3 years,"

"If we accept Mr Jethmalani's argument it will be good enough for us to say that it cannot go beyond the session. Baton has quoted implied necessity," remarked Justice Khanwilkar.

To substantiate his contention that something that is manifestly arbitrary can be struck down, Senior Counsel cited the Top Court's judgment in Shreya Singhal v. Union of India (WP (Crl) No.167 OF 2012) and Nikesh Tarachand Shah v. Union of India (WP (Crl) 67 of 2017).

"It's very very important, you cannot chuck the members who are against the government. At the end of the day this decision is completely irrational. The decision without hearing after the immediate person being shut out is violation of clause "u". If the speaker had to do it it could only be for the remainder of the session," submitted Senior Counsel to conclude his rejoinder submissions.

1 Year Suspension Has The Effect That It Keeps The Seat De Facto Vacant But Not De Jure Vacant: Senior Advocate Siddharth Bhatnagar 

Appearing for BJP MLA's Ashish Shelar, Atul Bhatkhalkar and Abhimanyu D Pawar in the petition filed by Advocate on Record Abhikalp Pratap Singh, Senior Advocate Siddharth Bhatnagar referring to Article 190(3) and 190(4) of the Constitution of India, 1950 argued that the suspension could not be beyond the period of session in any case.

"Argument of the other side is that it is not a case of automatic vacancy. The House can say that we have suspended you but your seat will not remain vacant. We'll not burden ourself with 190(4) since that situation hasn't arisen. Yardstick of 190(4) cannot be invoked in your case. We are only putting it to you. Art 190 argument is not available to you since it was 7 days only. For the purpose of testing rationality argument, it still can be looked at," remarked Justice AM Khanwilkar at this juncture.

Responding to the remarks posed by the bench, Senior Counsel submitted that suspension was worse than expulsion because the seat was being kept vacant without declaring it to be vacant. It was also his contention that the effect of suspending MLA for 1 year was that the seat was kept de facto vacant but not de jure vacant.

Referring to the deprivation as a result of suspension, Senior Counsel said, " Effect of this de facto vacancy is that the kind of steps the constituency is deprived of in the constituency. I cannot move a motion before the assembly, cannot take part in debate of the motion, cannot participate in a no confidence motion, adjournment motion, I cannot ask questions, I cannot participate in meetings. That's why I say that this is worse than expulsion."

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