Ashish Shelar & Ors Vs. The Maharashtra Legislative Assembly & Anr, 2022 is the case in which Supreme Court has questions to thought. 1. Suspension of BJP MLAs for a period of one year is right or not? 2. Legal Security of Legislative Proceedings? The case is decided on the 27th of January 2022. It is decided by the Bench of Three Judges. The names of the three judges bench are Justice A.M.Khanwilkar, Justice Dinesh Maheshwari & Justice C.T.Ravikumar.
PETITIONERS of Ashish Shelar & Ors Vs. The Maharashtra Legislative Assembly & Anr
Maharashtra Legislative Assembly’s resolution of July 5, 2021, announced the Suspension Of BJP MLAs For a Period Of One Year, meaning Maharashtra Legislative Assembly’s resolution of July 5, 2021suspended 12 BJP MLAs for a period of one year (for alleged disorderly behavior in the house.)
On 2/7/2021 the petitioners approached this Court by way of these writ petitions under Article 32 of the Constitution of India for Issuing an appropriate writ, order, or direction so as to quash and set aside the order of Maharashtra Legislative Assembly’s resolution of July 5, 2021, or the impugned resolution dated 5/7/2021 passed by the Maharashtra Legislative Assembly being unconstitutional and grossly illegal.
The petitioners stated that the act of the resolution of the legislative assembly was without any jurisdiction whatsoever and that the suspension was also done without föllowing any procedures This was because the resolution was passed by the Minister of Parliamentary Affairs rather than the Speaker.
They also submitted that there was also a gross violation of natural justice since the resolution was moved on the same day as the complaint was lodged and the concerned MLAs were not given any opportunity of being heard before deciding the case against them. it was further pointed out that Rule 53 of the Maharashtra Legislative Assembly Rules 2015 states that the Speaker may direct any member whose conduct in his opinion is grossly disorderly to withdraw immediately from the assembly for the remainder of the days’ proceedings.
If any member is ordered to withdraw a second time in the same session the Speaker may dırect the member to absent himself from Sittings of the assembly for any period not longer than the remainder of the session.
RESPONDENTS of Ashish Shelar & Ors Vs. The Maharashtra Legislative Assembly & Anr
On behalf of the State of Maharashtra, it was submitted that the House was acting within its legislative competence and the legislature is not subject to the jurisdiction of the courts when it comes to procedural irregularities. It is well settled that the rules so framed can be altered by the House at any time.
The proceedings inside the Legislature cannot be called into question on the ground that the same has not been carried on in accordance with the rules of business as held in the Kihota Hollohon case Once the power lies in the legislature to punish the MLAS for their conduct. it is assumed that such power is intrinsic The question of whether the punishment i.e. the order of Suspension Of BJP MLAs For A Period Of One Year, is excessive or not does fall within the jurisdiction of the Court.
JUDGEMENT in Ashish Shelar & Ors Vs. The Maharashtra Legislative Assembly & Anr about the questions of 1. Suspension of BJP MLAs for a period of one year is right or not? 2. Legal Security of Legislative Proceedings?
Referring to the Constitution Bench judgment in the Raja Ram Pal case the Court observed that the inherent power of the Legislature is not absolute. The legislative proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny It is settled law that even rules made to exercise the powers and privileges of State Legislature constitute law within the meaning of Article 13.
This is exposited in Special Reference No.l of 1964. It is held that when the State Legislatures purport to exercise this power. they will undoubtedly be acting under Article 246 read with Entry 39 of List II The enactment of such a law will. therefore have to be treated as a law within the meaning of Article 13.
In the backdrop of these observations, the Court held that these rules are statutory rules and binding on the House Considering the Kihoto Hollchan judgment, even though the Legislature has the prerogative to deviate from the rules including to alter the rules: until then and even otherwise it is expected to adhere to the “express substantive stipulation. There should be no deviation from the principle behind the enactment of the rule.
Rule 53 not only speaks about the procedure to be adopted for passing the drastic order of withdrawal of a member from the house but also about the substantive disciplinary or the rationality of the self-security measure to be taken in a graded objective standard) manner.
The bench had pointed out that as per the relevant rules, the Assembly has no power to suspend a member beyond 60 days. In this regard the bench referred to Article 19004) of the Constitution which says that a seat will be deemed to have become vacant if a member remains absent in the House without its permission for a period of 60 days. This decision is worse than expulsion No one can represent these constituencies in the House when they are not there.
This is not punishing the member but punishing the constituency as a whole”, Justice Khanwilkar observed One-year suspension is worse than ‘expulsion” ” disqualification” or ‘resignation – Insofar as the right of the constituency to be represented before the House/Assembly is concerned In that, the long suspension is bound to affect the rights harsher than expulsion wherein a mid-term election is held not later than six months Thus, the impugned resolution is unreasonable irrational and arbitrary and liable to be set aside”.
Supreme Court noted that suspension of BJP MLAs for a period of one year is beyond the remaining period of the ongoing Session would not only be a grossly irrational measure but also violative of basic democratic values owing to unessential deprivation of the member concerned and more importantly, the constituency would remain unrepresented in the Assembly. Thus the petitioners are entitled to all consequential benefits of being members of the Legislative Assembly on and after the expiry of the period of the remainder of the concerned Session in July 2021.
