Supreme Court To Examine Legality Of Maharashtra Assembly Resolution Suspending 12 BJP MLAs For One Year

The Supreme Court on Tuesday issued notice in writ petitions by 12 BJP MLAs challenging the resolution passed n July 5, 2021, by the Maharashtra Legislative Assembly to suspend them for one year for alleged misbehaviour within the House.

While issuing notice returnable on January 22, 2022, the bench of Justices AM Khanwilkar and CT Ravikumar further made it clear that the pendency of the petition will not be a hindrance to the petitioners requesting the house to reduce their sentence.

"Needles to observe that the pendency of this petition will not come in the way of the petitioner to urge the house regarding the reduction of tenure and it is a matter which can be taken into account by the house," the bench said in its order.

Submissions Of Counsels

Right Cannot Be Curtailed In An Arbitrary Fashion By The Speaker: Senior Advocate Mukul Rohatgi

Appearing for one of the MLAs, Kirtikumar @Banti Bhangdiya, Senior Advocate Mukul Rohatgi submitted that there was complete violation of Rule 53 of the Maharashtra Legislative Assembly Rules ("MLS Rules") which deals with Power to order withdrawal of members and the principles of natural justice.

Referring to the said rule as per which, "The Speaker may direct any member who refuses to obey his decision, or whose conduct is, in his opinion, grossly disorderly, to withdraw immediately from the Assembly and any member so ordered to withdraw shall do so forthwith and shall absent himself during the remainder of the day's meeting," Senior Counsel submitted that since the session of the Assembly was only for July 5 and July 6, the remainder could only be the next day.

It was also Senior Counsels' contention that the resolution passed by the Maharashtra Legislative Assembly curtailed the right of the MLA's to enter the house.

"This resolution is against the law. I didn't get any chance to present. It is passed in a summary manner," he further added.

During the course of his submissions, Senior Counsel further referred to the provisions of privilege starting from Rule 273 of the MLS Rules.

The bench at this juncture posed a question as to why didn't the petitioners approach the High Court.

"I filed the writ 6 months ago and now this matter has been taken up and your lordship has said that 226 is never a bar to approach the Supreme Court," replied Senior Counsel while relying on Raja Ram Pal vs The Hon'Ble Speaker, Lok Sabha & Ors Writ Petition (civil) 1 of 2006.

He further submitted that the injury was more grievous since 12 BJP MLA's had been suspended and that they had already served 6 months of suspension.

"Is there any rule that the speaker can call the order back?" the bench asked at this juncture.

Referring to Rule 58 of the MLS Rules which deal with General Powers of Speaker, Senior Counsel said, "I'm not aware of the same but I'm sure somebody who has the power to do also has the power to undo. I have no doubt that he has the power. He is not a creature of statute. He has some constitutional status. There is no doubt that he cannot recall the order. He does not have any quasi judicial status."

Issue Raises Serious Questions For Westminster Form Of Democracy; Recognising This Process Has Perils. It Has Far Reaching Consequences: Senior Advocate Harish Salve

Appearing for the MLA's, Senior Counsel submitted that the procedure had not been followed.

"Rule 53 ensures the functioning of the house. 53 is not meant to be a punitive power. You do not punish a member but protect the sanctity of the house by asking the member to withdraw and absent himself," Senior Counsel further submitted in this regard.

To further substantiate his contention, Senior Counsel relied on the Top Court's judgement in Alagaapuram R. Mohanraj and Ors. VS Tamil Nadu Legislative Assembly and Anr reported in (2016) 6 SCC 82.

It was also his contention that the issue before the bench today was "sui generis" and in this regard, he submitted that no committee was formed and the resolution was passed by the Minister.

"Parliament is a creature of tradition and practices and your lordship has defined the remit of it. What is before your lordship today is Sui generis exercise. Recognising this process has perils. It has far reaching consequences," Senior Counsel added.

If This Kind Of Inaction Is Allowed It Would Be Destructive Of Parliamentary Democracy: Senior Advocate Neeraj Kishan Kaul

Senior Advocate Neeraj Kishan Kaul appearing for one of the petitioners submitted that there was a breach of Rule 53 of the MLS Rules. While referring to Rule 18 of the MLS Rules that talked about prior notice, Senior Counsel submitted that no notice had been given.

"No notice, nothing was given in a year. If this kind of inaction is allowed it would be destructive of parliamentary democracy," Senior Counsel submitted.

Senior Advocate Siddharth Bhatnagar appearing for another MLA, while referring to the length of the suspension, submitted that the Legislative Assembly did not follow Rule 53 and that the resolution of suspension was completely illegal.

As Per Article 212 Of The Constitution Of India, It Was Not Open For The Court To Explore The Argument Of Proper Procedure Not Followed By The House: Senior Advocate C Aryama Sundaram

Appearing for the State of Maharashtra, the Senior Counsel submitted that the same was not an action under Rule 53 of the MLS Rules but was granted under Article 194(3) of the Constitution of India. It was also his contention that this power was recognised under the common law system and England too.

He further contended that what was to be looked into was if the legislative decision was correct or not and if it was the petitioner's contention that there was any procedural irregularity, then Article 212 of the Constitution of India would apply.

"If there is a procedure that is to be followed and is not followed, can you say that is a legislative procedure? Resolution can be a matter of majority and that would be a dangerous situation.

"If you are going for a privilege motion, then you have to follow the procedure", the bench said at this juncture.

The Bench further said that the Privilege Committee had a purpose and one of its purposes was to give an opportunity to give the person against whom the decision is to be given, hear him and then decide if the further process is to be followed or not.

While relying on Article 212 of the Constitution of India which deals with Courts not to inquire into proceedings of the Legislature, Senior Counsel further submitted that it was not open for the Court to explore the argument of proper procedure not followed by the house.

The bench at this juncture posed a question as to if the Court could inquire into the allegations of arbitrariness and irregularity with regards to the Statue which is passed by the Legislature, why could it not decide the irregularity with regards to the procedure followed in the House?

To answer the question posed by the bench, Senior Counsel submitted, "I am not saying that your lordship does not have the power but all I'm saying is how the same can be exercised."

"Manifestly arbitrarily can also be a touchstone on which the same can be decided," the bench added at this juncture.

Senior Counsel further submitted that it was not open for this court to analyze the final decision in reference to the abstract arguments and grounds urged before the court. He further submitted that even if sui generis procedure was followed, it was the absolute tenor of the house.

It was also Senior Counsel's contention that the petitioner had not refused the case of misbehaviour inside and outside the house made against them.

Maharashtra Legislative Assembly Not Before The Top Court; Issues Need Consideration: Senior Advocate Dushyant Dave

Appearing for the State of Maharashtra Senior Counsel submitted that the Top Court's judgement in Raja Ram Pal vs The Hon'Ble Speaker, Lok Sabha & Ors was not a carte blanche to allow misconduct in hosue. During the course of the hearing, the Senior Counsel also referred to the concurring judgements and the observations made by Justice Thakkar and further submitted that none could question the Top Court's power to go into the issue at hand. He however requested the bench to hear the matter in January since the issues required deeper consideration and it was imperative for the Maharashtra Legislative Assembly to present its stand.

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