Supreme Court: In a big relief to the 12 BJP MLAs who were suspended by the Maharashtra Legislative Assembly, by resolution dated 05.07.2021, for a period of 1 year due to “indisciplined and unbecoming behavior resulting in maligning the dignity of the House”, the 3-judge bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ has held that the said resolution is unconstitutional, grossly illegal and irrational to the extent of period of suspension beyond the remainder of the concerned (ongoing) Session.
The bench observed,
“Only a graded approach is the essence of a rational and logical approach; and only such action of the Legislature which is necessary for orderly conduct of its scheduled business of the ongoing Session can be regarded as rational approach. Suspension beyond the Session would be bordering on punishing not only the member concerned, but also inevitably impact the legitimate rights of the constituency from where the member had been elected.”
Resultantly, the 12 MLAs are entitled for all consequential benefits of being members of the Legislative Assembly, on and after the expiry of the period of the remainder of the concerned Session in July 2021.
The suspended MLAs belong to BJP, the principal Opposition Party in the Maharashtra Legislative Assembly. The Ruling Party is a coalition between the Shiv Sena, the Nationalist Congress Party (NCP) and the Indian National Congress (INC) christened as “Maha Vikas Aghadi”.
The proceedings of the House on 5.7.2021witnessed heated exchanges between the members of the Opposition Party and the Ruling Party due to an impression formed by the former that the business of the House was being conducted in unilateral manner, with conscious and engineered effort to suppress voice of the Opposition Party. Even the Leader of Opposition was denied an opportunity to speak on a crucial motion under consideration. At the relevant time, the House was presided over by the Chairman nominated under Rule 8 of the Maharashtra Legislative Assembly Rules, who according to the petitioners, denied opportunity to the Opposition Party to speak including to the Leader of Opposition.
As a result, the Minister for Parliamentary Affairs moved a resolution for initiating action against 12 MLAs of the BJP for having committed contempt of the House. That motion was tabled in the House and the Chairman was called upon to do the needful. The Chairman then called upon the House to pass the said resolution. The House in turn passed that resolution by majority votes after it was put to vote at 14:40 hours on 5.7.2021. The resolution read,
“Due to the indisciplined and unbecoming behavior resulting in maligning the dignity of the House, this House resolves to suspend the membership of Sarvashree Dr. Sanjay Kute, Adv. Ashish Shelar, Sarvashree Abhimanyu Pawar, Girish Mahajan, Atul Bhatkhalkar, Adv. Parag Alvani, Sarvashree Harish Pimple, Ram Satpute, Jaikumar Rawal, Yogesh Sagar, Narayan Kuche, Kirtikumar @ Bunty Bhangdia for a period of one year. Similarly, during the period of suspension they may be restrained from entering into the premises of Vidhan Bhawan at Mumbai and Nagpur.”
One-year suspension worse than “expulsion”, “disqualification” or “resignation”
It was observed that one-year suspension is worse than “expulsion”, “disqualification” or “resignation” — insofar as the right of the constituency to be represented before the House/Assembly is concerned. Long suspension is bound to affect the rights harsher than expulsion wherein a mid-term election is held within the specified time in terms of Section 151A of the 1951 Act, not later than six months. Thus, the impugned resolution is unreasonable, irrational, and arbitrary and liable to be set aside.
The graded (rational and objective standard) approach predicated in Rule 53 of the Maharashtra Legislative Assembly Rules 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. Longer or excessive deprival would not only be regarded as irrational, but closer to or bordering on perversity. Resultantly, such an action would be violative of procedure established by law and also manifestly arbitrary, grossly irrational and illegal and violative of Articles 14 and 21 of the Constitution.
Such suspension would also violative of 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 setup as a whole by permitting the thin majority Government (coalition Government) of the day to manipulate the numbers of the Opposition Party in the House in an undemocratic manner. Not only that, the Opposition will not be able to effectively participate in the discussion/debate in the House owing to the constant fear of its members being suspended for longer period. There would be no purposeful or meaningful debates but one in terrorem and as per the whims of the majority. That would not be healthy for the democracy as a whole.
“Indeed, the constituency cannot have any right to be represented by a disqualified or expelled member. However, their representative cannot be kept away from the House in the guise of suspension beyond the necessary (rational) period linked to the ongoing Assembly Session, including the timeline referred to in Article 190(4) of the Constitution and Section 151A of the 1951 Act.”
Long or excessive suspension, even though is not a case of disqualification incurred by the member, it would entail in undue deprivation of the constituency to be represented in the House by their duly elected representative. It is, therefore, a drastic measure trenching upon imposing penalty more than disciplinary or corrective measure, beyond the limited inherent powers of the House.
[Ashish Shelar v. Maharashtra Legislative Assembly, 2022 SCC OnLine SC 105, decided on 28.01.2022]
*Judgment by: Justice AM Khanwilkar
For petitioners – Senior Advocates: Mahesh Jethmalani, Mukul Rohatgi, Neeraj Kishan Kaul and Siddharth Bhatnagar. Advocate on Record: Abhikalp Pratap Singh
For State – Senior Advocate C. Aryama Sundaram
Maharashtra Legislative Assembly Image Courtesy: Nagpur Today