Suspending a member of the house or legislative assembly beyond the remainder period of ongoing session would impact the democratic setup as a whole by permitting the thin majority or coalition government to manipulate the numbers of the Opposition party in an “undemocratic manner”, the Supreme Court said on Friday.
In its judgment delivered on the pleas filed by 12 Bharatiya Janata Party legislators who had challenged their one-year suspension from Maharashtra legislative assembly for allegedly misbehaving with the presiding officer, a bench headed by Justice A M Khanwilkar observed that one-year suspension is ”worse than” expulsion, disqualification or resignation.
”In conclusion, we have no hesitation in allowing these writ petitions and to declare that the impugned resolution directing suspension of the petitioners beyond the period of the remainder of the concerned Monsoon session held in July 2021 is non est in the eyes of law, nullity, unconstitutional, substantively illegal and irrational,” said the bench, also comprising Justices Dinesh Maheshwari and C T Ravikumar.
The top court declared the resolution to be ”ineffective in law”, insofar as the period beyond the remainder of the stated session in which the resolution came to be passed.
It said the 12 MLAs are entitled to all consequential benefits of being the members of the Legislative Assembly, on and after the expiry of the period of remainder of the concerned session.
The apex court said that suspension beyond the remainder period of the ongoing session would be violative of ”basic democratic values” owing to the unessential deprivation of the member concerned and more importantly, the constituency would remain unrepresented in the assembly.
In its 90-page judgement, the bench said, ”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.”
The bench said that in the absence of any express provision bestowing power in the legislature to suspend its members beyond the term of ongoing session, the inherent power of the legislature can be invoked only to the extent necessary and for proper exercise of the functions of the house at the relevant point of time.
The apex court, which referred to Rule 53 of the Maharashtra Legislative Assembly Rules that deals with power to order withdrawal of member, said this rule not only speaks about the procedure to be adopted for passing the ”drastic order” of withdrawal of a member but also about the substantive disciplinary or rationality of self-security measure to be taken in a graded manner.
”The non-compliance of or deviation from the former (procedure) may be non-justiciable. However, in regard to the substantive disciplinary or the rationality of the self-security measure inflicted upon the erring member, is open to judicial review on the touchstone of being unconstitutional, grossly illegal and irrational or arbitrary,” the bench noted.
It noted that if it is a case of grossly disorderly behaviour in the house, the speaker/chairman himself is free to take instantaneous decision to order withdrawal of the member from the meetings of the assembly during the remainder of the day's meeting and if it is a case of repeat misconduct in the same session for the remainder of the session.
”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,” it said.
The bench said the suspension beyond the remainder period of the ongoing session 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.”
It said the Opposition will not be able to effectively participate in the discussion 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,” the bench said.
It observed that it is in the public domain, through print, electronic and social media, that members of Parliament or assembly or council of the state, spend much of the time in a ”hostile atmosphere” and Parliament and legislative assembly are becoming more and more ”intransigent place”.
It said that for becoming world leaders and self-dependant or 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.
”In any case, there can be no place for disorderly conduct in the House much less ’grossly disorderly',” it said, adding, ”Such conduct must be dealt with sternly for ensuring orderly functioning of the House. But, that action must be Constitutional, legal, rational and as per the procedure established by law.”
The 12 suspended members were Sanjay Kute, Ashish Shelar, Abhimanyu Pawar, Girish Mahajan, Atul Bhatkhalkar, Parag Alavani, Harish Pimple, Yogesh Sagar, Jaikumar Rawal, Narayan Kuche, Ram Satpute and Bunty Bhangdia.
They were suspended for one year on July 5 last year from the assembly after the state government had accused them of misbehaving with presiding officer Bhaskar Jadhav in the speaker's chamber.