January 18, 2022 10:17:38 pm
Stating that the Maharashtra Assembly’s decision to suspend 12 BJP MLAs for a period of one year raises questions of danger to democracy, the Supreme Court on Tuesday wondered what would happen if a government, which has only a slender majority, chooses to suspend more than a dozen opposition members for a long period.
Questioning the rationality of the Assembly action, Justice C T Ravikumar, sharing a three-judge bench, posed the query to Senior Advocate Arayama Sundaram, who appearing for Maharashtra tried to argue that there is no constitutional bar on suspending a member for one year.
“Another thing is danger to democracy. Suppose there is a slender lead of the majority, and 15-20 people are suspended, what would be the fate of democracy?,” asked Justice Ravikumar.
The bench, headed by Justice A M Khanwilkar and also comprising Justice Dinesh Maheshwari, had on the previous date of hearing said that the suspension was prima facie unconstitutional.
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The bench referred to Article 190(4) of the Constitution and said that under the relevant rules, the Assembly had no power to suspend a member beyond 60 days. It also said that as per Section 151 A of the Representation of the People Act, 1951, a constituency cannot go unrepresented for more than six months. The court had pointed out that it is a question of a constituency being denied representation in the House.
On Tuesday, Justice Khanwilkar said, “When we say that action has to be rational, there should be some purpose of suspension and the purpose is with regards to the session. It should not travel beyond the session. Anything other than this would be irrational… There should be some purpose… some overwhelming reason. Your decision of one year is irrational because of the deprivation of the constituency being unrepresented for more than six months. We are talking about the spirit of Parliamentary law now.”
“The Election Commission also has a role. Where a vacancy is there, elections have to be conducted. If a person is expelled, then election will be conducted but in case of suspension, there will not be any election,” said Justice Ravikumar.
Sundaram sought to contend that remedial power vested in legislature is not a limited one, and said if the power vested in the legislature is not circumscribed by the Constitutional or parliamentary procedure, it cannot be said to be irrational.
The bench said the power to suspend a member is to enable the House to complete the business of the session. “Beyond that where is the rationality,” it asked. “Ultimately, the power cannot be untrammeled. With constitutional and legal parameters, there are limits.”
“Article 184 provides for sessions. What is the question of meeting in sessions only?…A particular session he may be suspended. But beyond that the rationality question comes,” said Justice Maheshwari.
Justice Khanwilkar said the question is not about an elected member but a democratic right. “Legislative power is not untrammeled, the court has held,” he said.
Sundaram said a seat does not become automatically vacant if the member does not attend the House for 60 days but it will become vacant only if the House declares it so.
To a query from the bench whether the House is not obligated to declare such a seat vacant, the senior counsel said there is no such necessity and pointed out that the terminology used in the relevant part of the Constitution is “may” and not shall. It would be for the legislature to take a call on this, he said, adding that this would be free of judicial review.
Sundaram concluded his arguments Tuesday. Senior Advocate Mahesh Jethmalani will resume arguments for the petitioner MLAs on Wednesday.
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 presiding officer Bhaskar Jadhav in the Speaker’s chamber.
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