Maharashtra: SC sets aside House action against 12 BJP MLAs

The BJP hailed the ruling, saying it is a “vindication” of its stand and “a huge setback” for the ruling Maha Vikas Aghadi coalition in the state.

The bench of Justices A M Khanwilkar, Dinesh Maheshwari and C T Ravikumar, ruling on a plea by the suspended MLAs, declared the resolution “non est in the eyes of law” and “ineffective in law, insofar as the period beyond the remainder of the stated Session in which the resolution came to be passed”.

“Suffice it to observe 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. In that, 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,” it said.

Pointing out that suspension is a disciplinary measure, the bench said suspension for a period of one year “would assume the character of punitive and punishment worse than expulsion” as it “has the effect of creating a de facto vacancy though not a de jure vacancy”.

Suspension beyond the remainder of the ongoing session would also be “violative of basic democratic values” as “the constituency would remain unrepresented in the Assembly” and  this “would also impact the democratic set-up 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,” the bench said.

“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 a longer period” and “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 democracy as a whole,” it said.

Writing for the bench, Justice Khanwilkar pointed out that the “dispensation… to order withdrawal of member (suspension) is” contained in Rule 53 of the Maharashtra Legislative Assembly Rules.

According to this, 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 “the member… 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”.

The Speaker, therefore, is expected to exercise the power only in case of “grossly disorderly” conduct and “in a graded objective manner”, the bench said. “The raison d’etre is to ensure that the business of the House on the given day or the ongoing Session, as the case may be, can be carried on in an orderly manner and without any disruption owing to misconduct of one or more members,” it said.

The bench said “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”.

In appropriate cases, a House, it said, can even expel a member and “that action would not visit the member with disqualification and also allow him to get re-elected from the same constituency within the statutory period of six months from the date of vacation of his seat”.

But suspension beyond the session would “entail… unnecessary (unessential) deprivation. And 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,” it said.

In the instant case, instead of adopting that procedure, the House itself chose to direct withdrawal of the petitioners from the meetings of the Assembly for a period of one year, the bench said, adding it is “not a case of procedural irregularity” but “one of substantive illegality”.

Rejecting arguments that the court could not go into questions of procedure of the House, the bench said though non-compliance of or deviation from the procedure may be non-justiciable, it would still be “open to judicial review on the touchstone of being unconstitutional, grossly illegal and irrational or arbitrary”.

It said that consequent to its decision, the 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”.