ASHISH SHELAR v. MAHARASHTRA LEGISLATIVE ASSEMBLY

 

 

ASHISH  SHELAR v. MAHARASHTRA LEGISLATIVE ASSEMBLY

 

JUDGES

1.     Justice A.M. Khanwilkar

2.     Justice Dinesh Maheshwari

3.     Justice C.T. Ravikumar

 

PETITIONERS

1.     Ashish Shelar

2.     Atul Bhatkhalkar

3.     Abhimanyu D Pawar&Ors.

 

RESPONDENTS

1.     Maharashtra Legislative Assembly

2.      State of Maharashtra

 

CITATION

Writ Petition (Civil)797/ 2021

 

FACTS OF THE CASE

A resolution was introduced in the Maharashtra Assembly seeking the release of empirical data on Other Backwards Classes (‘OBCs’) for the purpose of political reservations in local elections. The resolution was allowed to be tabled by the Speaker-in-Chair, Bhaskar Jadhav of the Shiv Sena. However, a group f MLAs from the BharatiyaJanara Party (‘BJP’) attempted to pull up the microphone and the Speaker’s mace before the resolution could be read out. After a brief adjournment, the Parliamentary Affairs Minister, Anil Parab moved a resolution to suspend 12 of these members for a period of 1 year and restrict their entry into the legislature which was eventually passed. This suspension was challenged before the Supreme Court.

 

ISSUES

1.     Whether the speaker violated the principles of natural justice by not giving the MLAs a chance to be heard?

2.     Whether the legislative resolution suspending the MLAs for a year was excessive?

3.     Whether the suspension violates the MLAs freedom of speech and expression?

 

PETITIONERS’ ARGUMENT

The speaker had exercised his quasi-judicial power arbitrarily.The suspended members were not given a chance to be heard before the suspension which was against the principles of natural justice and thus, violated their right to freedom of speech and expression. Lastly, a violation of Rule 53 of Maharashtra Legislative Assembly Rules, 2015 was argued which allowed for the suspension of members from the remainder of the session. One year suspension, which was beyond the prescribed period, thus, was unlawful.

 

RESPONDENTS’ ARGUMENT

The Rules did not apply to the suspension in question as it was executed through a parliamentary resolution and not in exercise of the speaker’s powers under Rule 53. Further, powers and privileges of the house of the legislatures as delineated under Article 194 are non-justiciable.

 

JUDGEMENT

 The Supreme Court held the one-year suspension of the MLAs illegal, unreasonable and unconstitutional. It was declared to be ineffective in law, insofar as the period beyond the remainder of the stated Session and thus petitioners wereentitled to their privileges on and after expiry the concerned session.

While the Rules permits only the speaker to ordinarily decide on the suspension of members, the House may also pass a resolution in the exercise of inherent power to discipline its members. However, the House, while exercising such power “is expected to adhere to the express substantive stipulation in the rules framed under Article 208 of the Constitution and the principle underlying therein, being procedure established by law”. As a graded mechanism has been prescribed for seeking withdrawal of a member, with the highest punishment being withdrawal for the remainder of the session, the House is bound by the same. The court, therefor, labelled the suspension as “grossly irrational”, “bordering on perversity”, “manifestly arbitrary” and “violative of Articles 14 and 21 of the Constitution”.

Even in the absence of rule 53, suspension for a period longer than necessary is beyond the inherent powers of the House. Such withdrawals go beyond being self-protective measures and are even“harsher than expulsions”. They also negatively impact the constituencies of the elected members. The court, therefore concluded that such suspension beyond the ongoing session is “a drastic measure trenching upon imposing penalty more than disciplinaryor corrective measure, beyond the limited inherent powers of the House”.

The court also viewed the suspension as undemocratic as it may result in the possibility of the ruling party seeking withdrawal of the opposition members by using their numerical majority in the House. It may neutralise the cultureof debate and discussion as any statement having the effect of compromising the ruling party could lead to suspension.

 

COMMENT

The court regarded legislative rules as ‘law’ for Article 13 and any subsequent violation would constitute substantive illegality and not a mereprocedural irregularity. The earlier decisions of the Court in Aadharand Rojer Mathew had stated that a violation of constitutional mandate wouldconstitute substantive illegality. There was ambiguitywhether the similar violation of parliamentary rules could also be used as a ground to challenge the validity of laws. However, treating the rules as laws has provided the necessary clarification.

The decision of the court, particularly its emphasis on judicially disallowing any legislative action that results in undemocratic parliamentary procedures, could lay down the necessary framework for extending equal protection to procedural aspects of lawmaking as presently conferred upon substantive content of the laws. Presumption of constitutionality may be withdrawn when for instance, evidence isprovided that the ruling party is disallowing or hindering fruitful debate and deliberations and fast pacing the law-making procedures as envisaged in the Constitution and respective parliamentary rules.The decision could also justify quashing impugned law without scrutiny of the substantive provisions as against the constitutional mandates.

 

PRECEDENTS

1.     Alagaapuram R. Mohanraj &Ors v Tamil Nadu Legislative Assembly WP (C) 455/2016

2.     Barton v Taylor (1886) 11 AC 197

3.     Sushanta Kumar Chand &Ors v The Speaker, Orissa Legislative Assembly and Anr AIR 1973 Ori 111 (Division Bench)

4.     M.S.M. Sharma v Sri Krishna Sinha & Ors. AIR 1959 Sc 395

5.     Raja Ram Pal v Hon’ble Speaker, Lok Sabha & Ors (2007) 3 SCC 184