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Friday, January 28, 2022

Explained: For how long can an MLA be suspended? Before SC, a question of law and the Constitution

🔴 12 Maharashtra BJP MLAs have gone to Supreme Court against their year-long suspension from the Assembly. While hearing the challenge, the court has flagged the statutory requirement to not keep a seat vacant for more than 6 months

Written by Sadaf Modak | Mumbai |
Updated: January 15, 2022 7:33:57 am
BJP MLAs hold a “counter Assembly” to protest the suspensions on the premises of the Maharashtra legislature in July 2021. (File Photo)

The Supreme Court has observed that the suspension of 12 BJP MLAs from the Maharashtra Assembly for a full year is prima facie unconstitutional, and “worse than expulsion”.

A “constitutional void” and a “hiatus situation” has been created in these constituencies, and the “consequences are dreadful”, the court said on Tuesday.

What was the plea before the Supreme Court?

On July 5, 2021, soon after the Assembly met for its two-day monsoon session, there was commotion as Leader of Opposition Devendra Fadnavis (BJP) objected to an attempt by state minister Chhagan Bhujbal (NCP) to table a resolution demanding that the Centre release data on Other Backward Classes (OBCs), so that seats could be reserved for them in local bodies in Maharashtra.

Several BJP MLAs entered the well in protest, snatched the mace, and uprooted mics. Shiv Sena MLA Bhaskar Jadhav, who was in the chair, adjourned the House for 10 minutes, following which some BJP MLAs allegedly entered his chamber and threatened, abused, and misbehaved with him.

The Maharashtra House has not had a Speaker since Nana Patole of the Congress resigned in February 2021, and Jadhav was one of four presiding officers named by Acting Speaker Narhari Zirwal the previous day. The data on the population of OBCs is a political hot button, and the Centre has told the Supreme Court that data on OBCs collected during the Socio-Economic Caste Census (SECC) of 2011 is erroneous and unusable.

Maharashtra Parliamentary Affairs Minister Anil Parab subsequently moved a resolution to suspend 12 BJP MLAs — Sanjay Kute, Ashish Shelar, Abhimanyu Pawar, Girish Mahajan, Atul Bhatkhalkar, Parag Alavani, Harish Pimpale, Yogesh Sagar, Jaikumar Rawal, Narayan Kuche, Ram Satpute and Bunty Bhangdia — for a year.

The MLAs filed a writ petition in the Supreme Court last year against the Maharashtra Legislative Assembly and the State of Maharashtra and asked for the suspension to be quashed.

The matter has been posted for further hearing on January 18.

What have the suspended MLAs argued?

The petition has submitted that their suspension is “grossly arbitrary and disproportionate”. The challenge relies mainly on grounds of denial of the principles of natural justice, and of violation of laid-down procedure.

The 12 MLAs have said they were not given an opportunity to present their case, and that the suspension violated their fundamental right to equality before law under Article 14 of the Constitution. They have also submitted that they were not given access to video of the proceedings of the House, and it was not clear how they had been identified in the large crowd that had gathered in the chamber.

The MLAs have also contended that under Rule 53 of the Maharashtra Legislative Assembly Rules, the power to suspend can only be exercised by the Speaker, and it cannot be put to vote in a resolution as was done in this case.

Rule 53 states that 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”. The member must “absent himself during the remainder of the day’s meeting”.

Should any member be ordered to withdraw for a second time in the same session, the Speaker may direct the member to absent himself “for any period not longer than the remainder of the Session”.

What has Maharashtra said in its defence?

A counter-affidavit filed by the in-charge secretary of the state’s Parliamentary Affairs Department has pointed to the “undisciplined and unbecoming behaviour” of the 12 MLAs, and the fact that the Leader of Opposition had tendered an apology. There was, therefore, no question of hearing or furnishing of written explanations by the MLAs, who had committed contempt of the House, the affidavit says. It denies any violation of Article 14.

Counsel for Maharashtra argued that the 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 that “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 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 has also referred to Article 194 on the powers and privileges of the House, and argued that any member who transgresses these privileges can be suspended through the inherent powers of the House.

It has denied that the power to suspend a member can be exercised only through Rule 53 of the Assembly.

What about the length of the suspension?

This is the point that the bench of Justices A M Khanwilkar, Dinesh Maheshwari and C T Ravikumar took up during the hearing on Tuesday. The basic structure of the Constitution would be hit if the constituencies of the suspended MLAs remained unrepresented in the Assembly for a full year, the bench said.

The bench referred to Article 190 (4) of the Constitution, which 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.”

Under 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.

The Supreme Court said that the one-year suspension was prima facie unconstitutional as it went beyond the six-month limit, and amounted to “not punishing the member but punishing the constituency as a whole”.

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What are the rules on the length of suspension of a Member of Parliament?

Rules 373, 374, and 374A of the Rules of Procedure and Conduct of Business in 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 Rajya Sabha under Rules 255 and 256 also does not exceed the remainder of the session. Several recent suspensions of members have not continued beyond the session.

Similar Rules also are in place for state legislative assemblies and councils which prescribe a maximum suspension not exceeding the remainder of the session.

On the first day of Parliament’s winter session last month, 12 Rajya Sabha members were suspended for the remainder of the session for alleged unruly conduct on the last day of the monsoon session on a motion moved by the government. The Opposition criticised the suspensions, arguing that action in regard to an incident from the previous session violated the Rules of Procedure.

The Supreme Court is expected to rule on the question of whether the judiciary can intervene in the proceedings of the House. Constitutional experts, however, say that the court has clarified in previous rulings that the judiciary can intervene in case of an unconstitutional act done by the House.

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