Supreme court on 19th January 2022 Wednesday reserved its judgement on petitions filed by 12 BJP MLAs challenging their suspension from the Maharashtra legislative Assembly for 1 year for alleged unruly conduct in the house. Senior advocate Mukul Rohatgi, appearing for some of the petitioners, said : “ The decision of the house without hearing lacks natural Justice and is extremely irrational. They cannot police an MLA for one year. This arbitrary” He pointed out that the apex court had held that action could be struck down “if it is manifestly arbitrary”.
Senior advocate Mahesh Jethmalani, also appearing for some of the petitioners, said that suspension has to be with the intention discipline. He pointed out that in a recent case of suspension of 12 Rajyasabha MPs during the winter session of parliament, “ The members…were given an opportunity to apologise”. He contended that in case of the Maharashtra MLAs, what was alleged was a First-time offence .
Hearing the matter , the bench comprising Justices A.M.khanwilkar, Dinesh Maheswari and C.T.Ravikumar had remarked that the suspension was prima facie unconditional. It had 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 60days. It also said that as per section 151A of the Representation of the people Act, 1951, a constituency could not go unrepresented for a period beyond 6months. The court had pointed out that it was a question of a constituency being denied representation in the legislature.
Jethmalani on 19th January 2022 argued that while the house had the power to suspend a member, the main question to be decided was the existence and extend of the privilege. “ Suspension was a power used by the House of commons for enforcing discipline”, he said , adding that as per the procedure, notice is given first , then the member is suspended for the day, then the session and then explosion.
Jethmalani contented that the suspension cannot be beyond a session “ On prorogation all Bills lapse , so all disciplinary actions also lapse”, he said. Senior advocate Neeraj kishenkaul, also representing the MLAs, said that Article 208, which deals with the rules of procedure of a house says, “ A house of the legislature of a state may make a rules for regulating subject to the provisions of their constitution”, therefore, “ merely because you executed plenary power, you can’t say there will be no judicial review”. Kaul said, pointing out that the action had to be within the constitution.
“ Merely under the guise of saying that you are exercising plenary power, can you have these kinds of sentences? Today we have a new system devised where for one year you keep a person suspended” , he said. “ Is it not completely destructive of democracy in a representative democracy?” he asked.