Decision Taken By The House One Of 'Substantive Illegality': SC Sets Aside Resolution Of Maharashtra Assembly Suspending 12 BJP MLAs As Unconstitutional

The Court noted, "The decision taken by the House in this case, is one of substantive illegality in directing suspension beyond the period of remainder of the Session in which the motion was presented. We say so because, the period of suspension in excess of the period essential to do so much less in a graded manner including on principle underlying Rule 53, would be antithesis to rational or objective standard approach for ensuring orderly functioning of the House during the ongoing Session."

Mr. Mahesh Jethmalani, Mr. Mukul Rohatgi, Mr. Neeraj Kishan Kaul and Mr. Siddharth Bhatnagar, Senior Counsels appeared on behalf of the petitioners while Mr. C A Sundaram, Senior Advocate appeared for the State of Maharashtra.

The petitioners before the Court were elected members of the Maharashtra Legislative Assembly (2019-2024) and belong to BJP.

In the issue, before the Court, were the events that unfolded during the Monsoon Session on 05.07.2021. The petitioners contended that the Chairman of the House denied the opportunity to the opposition party to speak including the Leader of Opposition.

The allegation was also that in the meeting of the Business Advisory Committee, there was a concerted effort on behalf of the members of the ruling party to cut short the assembly session for a period of 2 days especially when the State was facing an unprecedented situation due to pandemic.

The Chair of the speaker was vacant and an election to appoint the same was to be conducted. As per the extant rules, another nominated member of the House had to preside on the said date. Certain instances led to heated exchanges and the house was adjourned.

Members of the Opposition approached Deputy Speaker. The members of the ruling party also arrived and heated exchanges followed. When the House resumed, the nominated Chairman indicated that some of the members of the ruling party were present and involved in heated exchanges but no action was taken as both sections had to apologize to each other.

The petitioners contended that a sincere apology was tendered by the leader of the opposition for an earlier incident. However, the minister for parliamentary affairs moved a resolution for initiating action against 12 MLAs having committed contempt of the House. The resolution was passed directing suspension of the petitioners beyond the period of the remainder of the concerned Monsoon Session.

The letter was addressed by the 12 MLAs to Deputy Speaker requesting to furnish relevant material. The doors of Apex Court were knocked under Article 32 praying to set aside the resolution being unconstitutional.

The Court noted that the judicial scrutiny regarding the exercise of legislative privileges is constricted and cannot be stricto sensu on the touchstone of judicial review.

The Court noted there is complete immunity from judicial review in matters of irregularity of procedure. The Court relied upon Constitution Bench judgment in SubCommittee on Judicial Accountability vs. Union of India & Ors., (1991) 4 SCC 699.

The Court noted that the submission that the enquiry must be limited to one of the parameters specified in Raja Ram Pal v Speaker, Lok Sabha, (2007) 3 SCC 184 is not correct.

The Court noted that Constitution does not specify the limitation on the privileges of Legislature but those privileges are subject to provisions of the Constitution requiring the House to make rules for regulating its procedure that ought to include rights under Part III of the Constitution.

The Court noted that the moment it is demonstrated that it is a case of infraction of any of the rights under Part III, the exercise of power by the Legislature would be rendered unconstitutional.

The Court made the following observations:

"There is marked distinction between the expression "rational" and "proportional". The expression "proportion" is derived from a latin word "proportio" or "proportionalis". It means corresponding in size or amount to something else. To wit, the punishment should be proportional to the crime — whereas, expression "rational" is derived from a latin word "ratio" or "rationalis". It means action is based on or in accordance with the reason or logic or so to say sensible or logical. The rationality of action can be tested, both on the ground of power inhering in the Legislature and the exercise of that power."

The Court noted that rules made to exercise the powers and privileges of the House constitute law within meaning of Article 13. The Court noted that it is expected to adhere to the express substantive stipulation in the rules framed under Article 208 of the Constitution.

The Court noted that the power exercised by the Speaker is a quasi-judicial order withdrawing the member from the meetings of the assembly. The Court made the following crucial observations: "A priori, if the resolution passed by the House was to provide for suspension beyond the period prescribed under the stated Rule, it would be substantively illegal, irrational and unconstitutional. In that, the graded (rational and objective standard) approach predicated in Rule 53 is the benchmark to be observed by the Speaker to enable him to ensure smooth working of the House, without any obstruction or impediment and for keeping the recalcitrant member away from the House for a period maximum upto the remainder of the entire Session."

The Court noted that suspension is a disciplinary measure and suspending beyond the session has the effect of creating a de facto vacancy.

The Court, after relying on several decisions, noted that the inherent power of legislature is not absolute. The Court noted that only a graded approach is the essence of a rational and logical approach and such action that is necessary for the orderly conduct of the session can be regarded as a rational approach.

The Court noted that parliament and State Legislative Assembly are regarded as sacred places and the behavioral pattern of society is mirrored in the through process and actions of the house. The Court noted that "They ought to ensure optimum utilisation of quality time of the House, which is very precious, and is the need of the hour especially when we the people of India that is Bharat, take credit of being the oldest civilisation on the planet and also being the world's largest democracy (demographically)."

The Court concluded that the writ petitions ought to be allowed and the resolution directing suspension of petitioners beyond period of remained of the monsoon session is non est in the eyes of law. The resolution was set aside.

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