2022 Supreme(SC) 47

SUPREME COURT OF INDIA
A.M. KHANWILKAR, DINESH MAHESHWARI, C.T. RAVIKUMAR, JJ.
Ashish Shelar & Ors. - Appellant
Versus
The Maharashtra Legislative Assembly & Anr. - Respondents
Writ Petition (Civil) No.797 of 2021 With Writ Petition (Civil) No.807 of 2021, Writ Petition (Civil) No.800 of 2021 And Writ Petition (Civil) No.808 of 2021
Decided on : 28-01-2022

IMPORTANT POINTS
(1) Suspension of BJP MLAs from Maharashtra Legislative Assembly – Suspension of a member must be preferred as a short-term or a temporary measure – Impugned resolution suffers from vice of being unconstitutional, grossly illegal and irrational to the extent of period of suspension beyond remainder of concerned (ongoing) Session.
(2) There is marked distinction between expression “rational” and “proportional” – Rationality of action can be tested, both on the ground of power inhering in Legislature and exercise of that power.

Headnote:

(A) Maharashtra Legislative Assembly Rules – Rule 53 – Suspension of BJP MLAs from Maharashtra Legislative Assembly – Sustainability – Judicial scrutiny regarding exercise of legislative privileges (including power to punish for contempt of House) is constricted and cannot be stricto sensu on touchstone of judicial review as generally understood in other situations – In that, there is complete immunity from judicial review in matters of irregularity of procedure – Constitution, by itself, does not specify limitation on privileges of Legislature, but those privileges are subject to provisions of Constitution – For attracting Articles 14 and 21 of Constitution, it is open to petitioner to demonstrate that action of Legislature is manifestly arbitrary – Arbitrariness can be attributed to different aspects – Even rules made to exercise powers and privileges of State Legislature constitute law within meaning of Article 13 – Rule 53 not only speaks about procedure to be adopted for passing drastic order of withdrawal of a member from House but also about substantive disciplinary or rationality of self-security measure to be taken in a graded (objective standard) manner – Non-compliance of or deviation from former (procedure) may be non-justiciable – However, in regard to substantive disciplinary or rationality of self-security measure inflicted upon erring member, is open to judicial review on touchstone of being unconstitutional, grossly illegal and irrational or arbitrary. (Paras 22, 27, 32 and 36)

(B) Maharashtra Legislative Assembly Rules – Rule 53 – Suspension of BJP MLAs from Maharashtra Legislative Assembly – Sustainability – Power is exercised by Speaker being a quasi-judicial order directing member to withdraw from meetings of Assembly – Speaker is expected to exercise this power only in case of conduct of member being “grossly disorderly” and in a graded objective manner – Raison d’être is to ensure that business of House on given day or ongoing Session, as the case may be, can be carried on in an orderly manner and without any disruption owing to misconduct of one or more members – Conduct of member is such that it was impeding smooth or orderly functioning of House, and may also be of such a nature that it is likely to bring disrepute to House – It may involve varied situations and implied exercise of rational corrective mechanism is quintessential – Action of suspension or directing withdrawal of a member from meetings of Assembly is in nature of self-security and is essentially directed to ensure that House can then protect itself against obstruction, or disturbance of its ongoing proceedings owing to misconduct of any of its members – That power is different from privilege to inflict punishment on a member, which may require higher degree of deprivation of member over and above participating in proceedings of House during Session – Rule 53 of Rules provides for a graded (rational and objective standard) approach to be adopted by Speaker for ensuring orderly conduct of business of House – In present case, Chairman entertained subject motion and called upon House to vote thereon, which had effect of giving tacit consent if not explicit concurrence to same – In that sense, it is not a case of resolution passed by House (to suspend its members) as being without jurisdiction – House takes upon itself to discipline its members, it is expected to adopt same graded (rational and objective standard) approach on lines predicated in Rule 53 – That would be a case of rational action taken by House as per procedure established by law – Inflicting suspension for a period beyond period necessary than to ensure smooth working/functioning of House during the Session by itself and also, as per underlying objective standard specified in Rule 53, suffer from vice of being grossly irrational measure adopted against erring member and also substantively illegal and unconstitutional. (Paras 37, 40, 41, 43, 44 and 46)

(C) Maharashtra Legislative Assembly Rules – Rule 53 – Suspension of BJP MLAs from Maharashtra Legislative Assembly – Sustainability – Suspension beyond remainder period of ongoing Session would not only be grossly irrational measure, but also violative of basic democratic values owing to unessential deprivation of member concerned and more importantly, constituency would remain unrepresented in Assembly – It would also impact democratic setup as a whole by permitting the thin majority Government (coalition Government) of the day to manipulate numbers of Opposition Party in House in an undemocratic manner – Not only that, Opposition will not be able to effectively participate in discussion/debate in House owing to 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 whims of majority – That would not be healthy for democracy as a whole – Sweep of Article 21 is expansive enough to govern action of dismembering a member from House of Legislative Assembly in form of expulsion or be it a case of suspension by directing withdrawal from meeting of Assembly for remainder of Session – Important consideration for scrutinising exercise of legislative privileges is whether same is necessary to safeguard integrity of legislative functions – Suspension of a member must be preferred as a short-term or a temporary measure for restoring order in functioning of concerned Assembly Session for completing its scheduled business within time and by way of disciplinary measure against incorrigible member(s). (Paras 48, 49, 51 and 53)

(D) Constitution of India – Article 190(4) – Maharashtra Legislative Assembly Rules – Rule 53 – Suspension of BJP MLAs from Maharashtra Legislative Assembly – Word “suspension” is necessarily linked to attendance of the member in the House – Suspension may be resorted to merely for ensuring orderly conduct of business of House during concerned Session – Anything in excess of that would be irrational suspension – Suspension is essentially a disciplinary measure – Suspension for a period of one year would assume character of punitive and punishment worse than expulsion – Suspension for long period and beyond Session has effect of creating a de facto vacancy though not a de jure vacancy – One-year suspension is worse than “expulsion”, “disqualification” or “resignation” insofar as right of constituency to be represented before House/Assembly is concerned – Inherent power of Legislature is not absolute, but limited remedial power to punish for contempt and to take such measures as are necessary for orderly functioning of proceedings of House – Suspension beyond Session would be bordering on punishing not only member concerned, but also inevitably impact legitimate rights of constituency from where member had been elected – Impugned resolution suffers from vice of being unconstitutional, grossly illegal and irrational to the extent of period of suspension beyond remainder of concerned (ongoing) Session – It is not a case of mere procedural irregularity committed by Legislature within meaning of Article 212(1) of Constitution – Impugned resolution declared to be ineffective in law, insofar as period beyond remainder of stated Session in which resolution came to be passed – Petitioners are entitled for all consequential benefits of being members of Legislative Assembly, on and after expiry of period of remainder of concerned Session in July 2021. (Paras 54, 55, 56, 58, 63, 72, 75 and 76)

(E) Words and Phrases – There is marked distinction between expression “rational” and “proportional” – Expression “proportion” is derived from a Latin word “proportio” or “proportionalis” – It means corresponding in size or amount to something else – Punishment should be proportional to crime – Whereas, expression “rational” is derived from a Latin word “ratio” or “rationalis” – It means action is based on or in accordance with reason or logic or so to say sensible or logical – Rationality of action can be tested, both on the ground of power inhering in Legislature and exercise of that power. (Para 28)

Facts of the case:

Suspension of BJP MLAs from Maharashtra Legislative Assembly. It is alleged that in the meeting of the Business Advisory Committee, which preceded the actual Assembly Session, there was a concerted effort on behalf of the members of the Ruling Party to cut short the Assembly Session for a period of two days especially when the State was facing unprecedented situation owing to pandemic, which needed elaborate deliberation in the House. The concerted effort was to strip of all legislative tools available to the Opposition Party so as to make sure that voice of opposition is muffled and suppressed.

Findings of Court:

This case has thrown up an occasion for all concerned to ponder over the need to evolve and adhere to good practices befitting the august body and appropriately denounce and discourage proponents of undemocratic activities in the House, by democratically elected representatives.

Result : Writ Petitions allowed.