Underlining that Legislative Assemblies have to function within the Constitution, the Supreme Court on Tuesday observed that the decision to suspend 12 BJP MLAs from Maharashtra Assembly for one year is prima facie unconstitutional, as there is a constitutional bar to it operating beyond six months. Hearing a plea by the MLAs challenging their suspension, a bench of Justices A M Khanwilkar, Dinesh Maheshwari and C T Ravikumar pointed out that there is a statutory requirement to fill a seat within six months of it falling vacant. The bench termed the move against the MLAs as “worse than expulsion”. “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,” the court said. The court said while the House has power to suspend a member, it cannot be for more than 59 days. It pointed out that under Article 190(4) of the Constitution, if a member of a House is absent from all meetings without its permission for a period of 60 days, the House may declare the seat vacant. “It becomes unconstitutional if you suspend someone for more than that. This will create a lot of problems..without motion you can suspend,” Justice Khanwilkar said. “How long a seat can remain vacant is 60 days…at the most six months outer limit,” Justice Maheshwari noted. “Here we are talking about a constituency being represented in a Parliamentary form of democracy.. Is this not hitting the basic structure of the Constitution when the 12 constituencies are unrepresented?” “Now it is 12; tomorrow it will be 120. It’s a dangerous argument. Absolute power does not mean unbridled. This is a serious issue,” Justice Khanwilkar added. The bench said it will accept the arguments of the petitioner’s counsel, senior advocate Siddharth Bhatnagar, that the “decision is worse than expulsion”. It remarked that the “consequences are dreadful”, as “none can represent these constituencies” in the absence of the elected MLAs. The “House has authority to suspend.but not beyond 59 days. The House is also governed by the Constitution and fundamental rights,” the bench said. It added that going beyond the period permitted is “not punishing the member but punishing the constituency as a whole”. Adjourning the hearing, the court said it will pass a brief order soon. The 12 MLAs - Sanjay Kute, Ashish Shelar, Abhimanyu Pawar, Girish Mahajan, Atul Bhatkhalkar, Parag Alavani, Harish Pimpale, Yogesh Sagar, Jay Kumar Rawat, Narayan Kuche, Ram Satpute and Bunty Bhangdia - were suspended on July 5 last year after the state government accused them of "misbehaving" with the presiding officer, Bhaskar Jadhav, in the Speaker's chamber. Senior advocate Mahesh Jethmalani, also representing the petitioners, pointed to the suspension of 12 Rajya Sabha MPs and said it was only for the remainder of the session. There is the constituency and constituent rights as well, he said. Appearing for the state of Maharashtra, senior advocate Arayama Sundaram said the House was acting within its legislative competence and that legislature is not subject to jurisdiction of the courts when it comes to procedural irregularities. The bench did not seem to agree.
