By Vivek K Agnihotri
On January 18, 2022, the Supreme Court held that the suspension of 12 MLAs of the BJP in the Maharashtra legislative assembly for a period of one year was “irrational and unconstitutional”. On January 11, the Court had observed that suspension for one year was worse than expulsion as it affected the right of their respective constituencies to remain represented in the House.
A three-judge bench of the Supreme Court was hearing petitions filed by the MLAs challenging their suspension on July 55, 2021, for alleged misbehaviour with the presiding officer in his chamber. The motion to suspend these MLAs was moved by the minister of parliamentary affairs and passed in the assembly by a voice vote. On December 14, 2021, the apex court had sought responses from the Maharashtra assembly and the state government on the pleas of the MLAs returnable on January 11, 2022, adding that the pendency of the matter will not come in the way of parties to approach the House and the House may take this into account.
The petitioners had urged that the action against them was “motivated, mala fide, excessive and disproportionate”. It was argued that, as even the motion for suspension clearly states, the alleged incident of frisking occurred in the chamber of the Speaker with Bhaskar Jadhav who is merely a member of the panel of presiding officers. Therefore, the moment he stepped down from the chair, he ceased to act in the capacity of the Speaker. The provisions in the Constitution as well as the Maharashtra Legislative Assembly Rules, 2015 (Assembly Rules, for short) did not apply to him in his capacity as the Speaker. Thus, any alleged scuffle, if at all it had taken place, was only between the MLAs and did not concern the Speaker/Deputy Speaker per se. The 12 MLAs could not thus have been suspended under the Rules.
One of the counsels for the petitioners stated that the act of the resolution of the legislative assembly was without any jurisdiction whatsoever and that the suspension was also done without following any procedures. He submitted that there was also a gross violation of natural justice since the resolution was moved on the same day as the complaint was lodged and the concerned MLAs were not given any opportunity of being heard before deciding the case against them.
It was further pointed out that Rule 53 of the Assembly Rules states that the Speaker may direct any member whose conduct in his opinion is grossly disorderly to withdraw immediately from the assembly for the remainder of the day’s proceedings. If any member is ordered to withdraw a second time in the same session, the Speaker may direct the member to absent himself from sittings of the assembly for any period not longer than the remainder of the session. The Rule further provides that the period of such absence shall be deemed to be absence with the permission of the assembly within the meaning of clause (4) of article 190 of the Constitution.
The Rules of Procedure and Conduct of Business of the two Houses of Parliament too provide for suspension of a member from the House for a period not exceeding the remainder of the session.
On behalf of State of Maharashtra, it was submitted that the House was acting within its legislative competence and the legislature is not subject to jurisdiction of the courts when it comes to procedural irregularities. Once the power lies in the legislature to punish the MLAs for their conduct, it is assumed that such power is intrinsic. The question of whether the punishment is excessive or not does not fall within the jurisdiction of the Court.
The bench did not seem to agree. It observed that there is a statutory requirement to fill a seat within six months of its falling vacant. The Court said: “…you can’t create a constitutional void, a hiatus situation for the constituency…Each constituency has an equal amount of right to be represented in the House”.
While the House has power to suspend a member, it cannot be for more than 59 days. Under Article 190 (4) of the Constitution, if a member of the House is absent from all meetings without its permission for 60 days, the House may declare the seat vacant, the Court observed. “How long the seat can remain vacant is 60 days… At the most six months outer limit.” Going beyond the period permitted is not punishing the member but punishing the constituency. Absolute power does not mean unbridled power. It would create a dangerous precedent for the democratic set up and democratic values will be compromised if elected members are removed from the House for a long period. The Court refused to accept the argument of State of Maharashtra that the Court cannot examine the quantum of punishment imposed by the assembly. “We can say that the decision to suspend can only operate till six months and later than that it will be hit by constitutional bar.”
A counsel for the petitioners invited the attention of the Court to the case of suspension of 12 members of the Rajya Sabha in Parliament during the winter session, and observed that in that case too, the members were suspended only for the remainder of the session.
Any attempt to mete out exemplary punishment for misdemeanour, which is not illegal in the strict sense, is redolent of patriarchalism. In a transactional analysis, it is called parent to child approach. Adult to adult transaction needs to be conducted in a straightforward manner without any hidden agenda.
In the present case, if an adult to adult communication was to be undertaken, first and foremost the defaulting MLAs should have been issued a show-cause notice along with counselling. Ultimately, as informed by the counsel for State of Maharashtra, after the last order of the Court on December 14, 2021, the MLAs made applications before the Speaker and were heard. The counsel requested the Court to adjourn the matter by three weeks so that the outcome of the representation can be brought to the notice of the Court.
Instead of straightaway admitting the resolution for suspension of the MLAs moved by the government, another option available to the Speaker was to refer the matter to the Committee on Privileges of the assembly, on a representation being made by Bhaskar Jadhav, the stand-in presiding officer from the panel.
According to Rule 284 of the Assembly Rules, the Speaker may refer any question of privilege to the Committee of Privileges for examination, investigation and report. The Committee would have given an opportunity to the aberrant members to explain their case. Action against the aberrant members could have been taken according to the recommendation of the Committee on Privileges (which could even be expulsion in an appropriate case), by adoption of the Report of the Committee in the House.
This is particularly relevant because the misconduct of the MLAs in the present case did not strictly fall within the mischief of Rule 53 of the Assembly Rules relating to suspension of members, which is applicable to refusal to obey speaker’s decision, or gross disorderly conduct in the House. The alleged misconduct pertained to “roughing up” the presiding officer in the chamber.
Towards the end of the hearing on January 11, 2022, the Court observed that it will have to deal with only one issue of quantum of punishment, particularly when the critical six months of suspension period was already over. “We could dispose it off with a two-page order just dealing with it,” the bench said. Thereupon, the counsel sought time to take instructions from the state. The hearing was adjourned till January 18.
When the Court reassembled on January 18, the bench argued that a member is suspended for running the House for the purpose of smooth conduct of its business during the session. Thus the period of suspension should not exceed the session. The legislative body does not have “untrammelled power” to suspend its members for an indefinite period. It was “against democracy” and could be misused by any ruling party having a thin majority.
—The writer was Secretary, Parliamentary Affairs from 2003-2005 and Secretary General of Rajya Sabha from 2007-2012