The Supreme Court of India, on January 28, 2022, quashed the Maharashtra Legislative Assembly’s resolution passed on July 5, 2021, which suspended 12 Opposition MLAs for a period of one year on the grounds of ‘grossly disorderly conduct’ and ‘undisciplined and unbecoming behaviours’ in the house. The apex court said that it was illegal to suspend a sitting legislator beyond the ongoing session.
The verdict was delivered by a three-judge bench led by Justice A.M. Khanwilkar, Justice Dinesh Maheshwari, and Justice C.T. Ravikumar.
Background On July 5, 2021, soon after the assembly met for its two-day monsoon session, there was commotion as the Leader of the Opposition Devendra Fadnavis (BJP) objected to an attempt by state minister Chhagan Bhujbal (NCP) to table a motion demanding that the Centre releases data on other backward classes (OBCs). The Maharashtra government wanted to provide reserved seats to the OBC category in local bodies (for municipality elections) in the state, on the basis of the data. The intention of the ruling coalition government was to gain political edge in the electoral politics. The Opposition, vehemently opposed the move as the Centre had already informed the apex court that data on OBCs collected during the socio-economic caste census (SECC) of 2011 was erroneous and unusable. The opposition MLAs were not in a mood to pass the move, and in a fit of rage, they snatched the mace, and uprooted mics. Subsequently, a ‘heated exchange’ took place between the members of the Opposition and the members of the ruling party, which carried over to the chamber of the deputy speaker.
Meanwhile, the Maharashtra Parliamentary Affairs Minister Anil Parab moved a resolution to suspend 12 BJP MLAs. This was put to vote by the speaker and passed. The Leader of the Opposition contested this resolution. One of the presiding officers and in the chair of the speaker, Bhaskar Jadhav, did not allow the Leader of the Opposition to express his views. The MLAs were suspended for one year and restricted from entering the House.
It is to be noted that the chair had been named by the acting speaker Narhari Zirwal only the previous day, as the Maharashtra house did not have any speaker since Nana Patole of the Congress resigned in February 2021.
Petition Filed in Supreme Court
The suspended MLAs filed a writ petition in the Supreme Court seeking that the resolution suspending them be invalidated. On behalf of the 12 suspended MLAs, it was submitted that the MLAs were not given an opportunity to present their case and that the suspension violated their fundamental right to equality before the law under Article 14 of the Constitution. They also submitted that they were not given access to video of the proceedings of the house, and it was not clear how the MLAs were identified in the large crowd that had gathered in the chamber of the deputy speaker in course of the protest. They also contended that under Rule 53 of the Maharashtra Legislative Assembly Rules, the power to suspend can only be exercised by the speaker, and no motion can be put to vote as was done in this case.
This violates their right to a fair hearing under Article 14 of the Constitution of India, 1950, as well as the principles of natural justice. They also claimed that the period of suspension was unfair and disproportionate to what occurred on the floor of the house and in the deputy speaker’s chamber.
Rule 53 of the Maharashtra Legislative Assembly
Power to order withdrawal of member “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. If any member is ordered to withdraw a second time in the same Session, the Speaker may direct the member to absent himself from the meetings of the Assembly for any period not longer than the remainder of the Session, and the member so directed shall absent himself accordingly. The member so directed to be absent shall, during the period of such absence, be deemed to be absent with the permission of the Assembly within the meaning of clause (4) of Article 190 of the Constitution.”
Clause (4) of Article 190 of the Constitution says: “If for a period of sixty days a member of a House of the Legislature of a State is without permission of the House absent from all meetings thereof, the House may declare his seat vacant: Provided that in computing the said period of sixty days no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive days.”
Similar rules for the Parliament and other state assemblies like Rule 53 Rules 373, 374, and 374A of the rulebook of the Lok Sabha provide for the withdrawal of a member whose conduct is ‘grossly disorderly’, and suspension of one who abuses the rules of the house or willfully obstructs its business. The maximum suspension, as per these rules, is “for five consecutive sittings or the remainder of the session, whichever is less”. The maximum suspension for the Rajya Sabha, under Rules 255 and 256, also does not exceed the remainder of the session. Similar rules are also there for state legislative assemblies and councils which prescribe a maximum suspension not exceeding the remainder of the session.
Thus, the court revoked the resolution as arbitrary and illegal and beyond the power of the assembly which has no power to suspend a member beyond 60 days.
The Respondent’s Stand
On the other hand, the Maharashtra Legislative Assembly and the state government, the respondents in the case, submitted that the action was taken due to ‘undisciplined and unbecoming behaviour’ of the MLAs. It was argued that that house had acted within its legislative competence, and that under Article 212, courts do not have jurisdiction to inquire into the proceedings of the legislature. Article 212 (1) states, “the validity of any proceedings in the legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure”.
The next subsection (2) of Article 212 says, “No officer or member of the Legislature… in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.”
The state also said that a seat does not automatically become vacant if the member does not attend the house for 60 days but it becomes vacant only if declared so by the house. It was submitted that the house is not obligated to declare such a seat vacant.
Supreme Court’s Stand
The apex court agreed with the suspended MLAs that the suspension had to follow the procedure laid down in Rule 53, preferably as a short-term and disciplinary measure for restoring order in the assembly. As per the court, Rule 53 only provides for the withdrawal of a member for the remainder of the day or in case of repeat misconduct in the same session, for the remainder of the session and anything in excess of that would be irrational suspension. As per this rule, withdrawal of a member can only be done in case of the member’s conduct being ‘grossly disorderly’. Relying on definitions of these two words the court said that the conduct had to be considered in a graded objective manner. It is not a punishment like expulsion but is more a direction to ensure that the business of the house can be carried on smoothly, without any disruption. The power of suspension is different from the privilege to inflict punishment on a member.
In the judgment, Justice Khanwilkar observed, “Suspension beyond the remainder period of the ongoing session would not only be grossly irrational measure, but also violative of the basic democratic values owing to unessential deprivation of the member concerned, and more importantly, the constituency would remain unrepresented in the assembly. It would also impact the democratic set-up as a whole by permitting the thin majority of government (coalition government) of the day to manipulate the numbers of the opposition party in the House in an undemocratic manner”. He further said, “Suspension for a period of one year would assume the character of punitive and punishment worse than expulsion. Suspension for long period and beyond the session has the effect of creating a de facto vacancy though not a de jure vacancy”.
The court also considered the Maharashtra governments’ plea, whether the legislature had complete immunity from judicial review in matters of irregularity of procedure. The court ruled that procedures are open to judicial review on the grounds of being unconstitutional, grossly illegal, irrational, or arbitrary.
Referring to the suspension of members beyond the remainder of the session, the bench referred to Article 190 (4) of the Constitution. As per Section 151 (A) of the Representation of the People Act, 1951, a bye-election for filling any vacancy… [in the House] shall be held within a period of six months from the date of the occurrence of the vacancy. This means that barring exceptions specified under this section, no constituency can remain without a representative for more than six months. Anything in excess of that would be irrational suspension entailing deprivation of the constituency from being represented in the house.
Therefore, the court said that if the conduct of the members was gross, warranting their removal from the assembly for a longer period, the house could have invoked its inherent power of expulsion.
Conclusion
In an epilogue attached to the judgment, the court commented on Parliament and legislative assemblies for ‘becoming more and more intransigent’ places. It lamented that ‘the philosophical tenet, one must agree to disagree, is becoming a seldom scene or a rarity during the debates’. It asserted, “… it is high time that corrective steps are taken by all concerned and the elected representatives would do enough to restore the glory and the standard of intellectual debates of the highest order. For becoming world leaders and self-dependent/reliant, quality of debates in the house ought to be of the highest order and directed towards intrinsic constitutional and native issues confronting the common man of the nation/States, who are at the crossroad of semi-sesquicentennial or may we say platinum or diamond jubilee year on completion of 75 years post-independence”. Legislators, it asserted, “are expected to show statesmanship and not brinkmanship”. This case has thrown up an occasion for all to “appropriately denounce and discourage proponents of undemocratic activities in the house, by democratically elected representatives”.
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