Ashish Shelar & Ors. vs The Maharashtra Legislative Assembly & Anr.

Maharashtra Legislative Assembly Rules, 2015 – r. 53 - Power to order withdrawal of member - Procedure prescribed under Explained. Words and phrases: grossly and disorderly, suspension – Meaning of, in the context of functioning of the House during the session.

Allowing the writ petitions, the Court

HELD: 1. The impugned resolution suffers from the vice of being unconstitutional, grossly illegal and irrational to the extent of period of suspension beyond the remainder of the concerned(ongoing) Session. Further, it is not a case of mere procedural irregularity committed by the Legislature within the meaning of Article 212(1) of the Constitution. The impugned resolution directing suspension of the petitioners beyond the period of the remainder of the concerned Monsoon Session held in July2021 is non est in the eyes of law, nullity, unconstitutional, substantively illegal and irrational. The impugned resolution is, thus, declared to be ineffective in law, insofar as the period beyond the remainder of the stated Session in which the resolution came to be passed. The petitioners are entitled for 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. [Paras 72, 75, 76][822-D; 824-E-G]

2.1 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. The plea taken by the State that the rules are neither statutory rules nor binding on the House will be of no avail. [Paras 32, 33][801-A, B-C]

2.2 The rules so framed can be altered by the House at any time. Until the rules are altered, however, the House is ordinarily guided by the procedure prescribed in the rules framed under Article 208 of the Constitution. At the same time, proceedings inside the Legislature cannot be called into question on the ground that the same have not been carried on in accordance with the rules of business. It is, however, enough for the present to observe that the framed under Article 208 acquire the status of procedure established by law for the purpose of Article 21 of the Constitution. Viewed thus, 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” (which is not mere procedure) in the rules framed under Article

208 of the Constitution and the principle underlying therein, being procedure established by law. [Paras 34, 35][801-G-H; 802-A-D]

2.3 The dispensation prescribed under the Rules to exercise power to order withdrawal of member (suspension) is ascribable to Rule 53 of the Rules. This Rule 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 non-compliance of or deviation from the former (procedure) may be non-justiciable. However, in regard to the substantive disciplinary or the rationality of the self-security measure inflicted upon the erring member, is open to judicial review on the touchstone of being unconstitutional, grossly illegal and irrational or arbitrary. In terms of above Rule, the power is exercised by the Speaker being a quasi-judicial order directing the member to withdraw from the meetings of the Assembly. The Speaker is expected to exercise this power only in case of conduct of the member being “grossly disorderly” and in a graded objective manner. The raison d’etre is to ensure that the business of the House on the given day or the 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. The expression used in the stated Rule is “grossly disorderly”. The expression “grossly disorderly” has not been defined in the Rules. Grossly”, is an adverb and indicative of relatively higher degree of misconduct or so to say extremely wrong and deviant. [Paras 36-38][802-D; 803-A-D, F-G]

2.4 Taking the totality of the meaning of expressions “grossly” and “disorderly”, it must follow that the conduct of the member is such that it was impeding the smooth or orderly functioning of the House, and may also be of such a nature that it is likely to bring disrepute to the House. It may involve varied situations and, therefore, implied exercise of rational corrective mechanism is quintessential. The action of suspension or directing withdrawal of a member from the meetings of the Assembly is in the nature of self-security and is essentially directed to ensure that the House can then protect itself against obstruction, or disturbance of its ongoing proceedings owing to the misconduct of any of its members. That power is different from the privilege to inflict punishment on a member, which may require higher degree of deprivation of the member over and above participating in the proceedings of the House during the Session. In a given case, it can be in the form of expulsion being the highest degree of exclusion of the member from the House. Yet another would be penal, in case of ordering imprisonment owing to act of contempt of the House. Rule 53 of the Rules provides for a graded (rational and objective standard) approach to be adopted by the Speaker for ensuring orderly conduct of the business of the House. In the present case, however, the Minister for Parliamentary Affairs introduced a motion in the House for initiating action for contempt of the House, which the Chairman allowed it to be put to vote instantly at 14:40 hours on the same day and it was passed by the House by majority in no time. Indeed, if it is a case of grossly disorderly behaviour in the House, the Speaker/Chairman himself is free to take instantaneous decision to order withdrawal of the member from the meetings of the Assembly during the remainder of the day’s meeting and if it is a case of repeat misconduct in the same Session — for the remainder of the Session. [Paras 40, 41][804-E-H; 805-A-D]

2.5 Concededly, there is nothing in the constitutional scheme or the rules framed under Article 208 to prevent a member of the House to move a motion for directing withdrawal of a member on the ground of his grossly disorderly conduct. Further, if the Speaker can suo motu direct the member to withdraw from the Assembly on the same day instantly to secure smooth functioning of the proceedings, for the same logic, even the House could pass a resolution itself on a motion being moved by a member of the House instantly with the concurrence of the Speaker on such a motion. [Para 42][805-E-F]

2.6 In the present case, the Chairman entertained the subject motion and called upon the House to vote thereon, which had the effect of giving tacit consent if not explicit concurrence to the same. In that sense, it is not a case of resolution passed by the House (to suspend its members) as being without jurisdiction. It is a different matter that if the Speaker/Chairman was to do so, it could be only under Rule 53 in a graded manner for the remainder of the day and for repeat misconduct in the same Session — for the remainder of the Session. That would be a logical and rational approach consistent with the constitutional tenets. If the House takes upon itself to discipline its members, it is expected to adopt the same graded (rational and objective standard) approach on the lines predicated in Rule 53. That would be a case of rational action taken by the House as per the procedure established by law. As opposed to a rational decision, it would be a case of irrational or preposterous approach. [Para 43-44][805-F-H; 806-A-B, D]

2.7 A priori, if the resolution passed by the House was to provide for suspension beyond the period prescribed under the stated Rule, it would be substantively illegal, irrational and unconstitutional. In that, the graded (rational and objective standard) approach predicated in Rule 53 is the benchmark to be observed by the Speaker to enable him to ensure smooth working of the House, without any obstruction or impediment and for keeping the recalcitrant member away from the House for a period maximum up to the remainder of the entire Session. [Para 45][806-F-G]

2.8 Inflicting suspension for a period “beyond the period necessary” than to ensure smooth working/functioning of the House during the Session “by itself”; and also, as per the underlying objective standard specified in Rule 53, indubitably, suffer from the vice of being grossly irrational measure adopted against the erring member and also substantively illegal and unconstitutional. [Para 46][807-A-B]

2.9 Suspension beyond the remainder period of the ongoing Session would not only be 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. It would also impact the democratic setup as a whole by permitting the thin majority Government (coalition Government) of the day to manipulate the numbers of the Opposition Party in the House in an undemocratic manner. Not only that, the Opposition will not be able to effectively participate in the discussion/debate in the House owing to the 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 the whims of the majority. That would not be healthy for the democracy as a whole. [Para 48][807-D-F]

2.10 It is well established that fundamental rights are guaranteed by Part III of the Constitution, out of which Articles 14, 19 and 21 are the most frequently invoked to test the validity of the executive as well as legislative actions when these actions are subjected to judicial scrutiny. Different Articles in the Constitution under chapter Fundamental Rights and the Directive Principles in Part IV ought to be read as an integral and incorporeal whole with possible overlapping with the subject matter of what is to be protected by its various provisions particularly the fundamental rights. The sweep of Article 21 is expansive enough to govern the action of dismembering a member from the House of the Legislative Assembly in the form of expulsion or be it a case of suspension by directing withdrawal from the meeting of the Assembly for the remainder of the Session. [Para 49][807-GH; 808-A-B]

2.11 It is evident from the impugned resolution that it has been passed by the majority votes in the House immediately after it was put to vote by the Chairman. It was in fact introduced as a motion for initiating action for having committed contempt of the House which ordinarily ought to have proceeded under Part XVIII of the Rules dealing with Privileges. That would have required constitution of a Committee of Privileges to enquire into the entire matter by giving opportunity of hearing to the persons concerned. Instead of adopting that procedure, the House itself chose to direct withdrawal of the petitioners from the meetings of the Assembly for a period of one year-which direction is neither ascribable to the dispensation prescribed in Part XVIII of the Rules or Rule 53 enabling the Speaker to do so. [Para 50][808B-D]

2.12 It is not a case of procedural irregularity as such. Whereas, the decision taken by the House in this case, is one of substantive illegality in directing suspension beyond the period of remainder of the Session in which the motion was presented. It is said so because, the period of suspension in excess of the period essential to do so much less in a graded manner including on principle underlying Rule 53, would be antithesis to rational or objective standard approach for ensuring orderly functioning of the House during the ongoing Session. [Para 51][808-E-F]

2.13 Reverting to the challenge to the impugned resolution being grossly irrational. As noticed earlier, Rule 53 provides for a graded (rational and objective standard) approach. The timeline as specified in Rule 53 is with a view to address the immediate concern of the House for ensuring orderly conduct of the business of the House in the given Session. This action is implied on the doctrine of necessity. The Speaker and for that matter, even the House as a whole or by majority, would be within its power to resort to such a mechanism being rational measure. Exceeding the stated timeline is a substantive matter and not a procedural irregularity. It would raise a basic question as to what purpose would be served by withdrawing the member from the House for successive Sessions falling within that period of one year. Indeed, if the conduct of the member is gross warranting his removal from the Assembly even beyond the period of sixty days [Article 190(4)] or six months (Section 151A of the 1951 Act), the House is capable of invoking its inherent power of expulsion of such a member, which is a greater power. [Para 52][808-F-H; 809-A-B]

2.14 Suspension for a day or for the remainder of the Session, would be of a lesser degree of exercise of that power. However, it is not open to contend that the higher degree of power would include power to suspend the member beyond the period essential to keep him/her away from the Assembly for ensuring orderly conduct of the business of the House. The important consideration for scrutinising the exercise of legislative privileges is whether the same is necessary to safeguard the integrity of the legislative functions. This Court had recognised that the Legislature’s power to punish for its contempt was not untrammelled. That power of legislative chamber to punish for its own contempt must coincide with the Legislature’s interest in protecting the integrity of its function. In other words, the suspension of a member must be preferred as a short-term or a temporary measure for restoring order in the functioning of the concerned Assembly Session for completing its scheduled business within time and by way of disciplinary measure against the incorrigible member(s). [Para 53][809-B-E]

2.15 The word “suspension” is necessarily linked to attendance of the member in the House. Thus, the suspension may be resorted to merely for ensuring orderly conduct of the business of the House during the concerned Session. Anything in excess of that would be irrational suspension. This is so because the member represents the constituency from where he has been duly elected and longer suspension would entail in deprivation of the constituency to be represented in the House. It is true that right to vote and be represented is integral to our democratic process and it is not an absolute right. Indeed, the constituency cannot have any right to be represented by a disqualified or expelled member. However, their representative cannot be kept away from the House in the guise of suspension beyond the necessary (rational) period linked to the ongoing Assembly Session, including the timeline referred to in Article 190(4) of the Constitution and Section 151A of the 1951 Act. [Para 54] [809-E-H]

2.16 Suspension is essentially a disciplinary measure. Suspension for a period of one year would assume the character of punitive and punishment worse than expulsion. For, suspension for long period and beyond the Session has the effect of creating a de facto vacancy though not a de jure vacancy. The argument of the State that despite suspension from the House, the members would continue to discharge all other functions outside the House as an elected representative. This plea, is tenuous. For, the effect of such suspension is visited not only on the constituency that goes unrepresented for potentially long and unessential time, but also on the functioning of the Assembly itself. [Para 55][810A-C]

2.17 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. Long suspension bound to affect the rights harsher than expulsion wherein amid term election is held within the specified time in terms of Section 151A of the 1951 Act, not later than six months. Thus, the impugned resolution is unreasonable, irrational, and arbitrary and liable to be set aside. [Para 56][810D-E]

2.18 It must follow that in absence of any express provision bestowing power in the Legislature to suspend its member(s) beyond the term of the ongoing Session, the inherent power of the Legislature can be invoked only to the extent necessary and for proper exercise of the functions of the House at the relevant point of time. No more. For that purpose, it could resort to protective and self-defensive powers alone and not punitive at all. [Para 60][814-F-G]

2.19 Implied or inherent power of the Legislature must be reckoned to the extent only to what is required to be done by the House for effective and orderly functioning of its business during the ongoing Session and not beyond. For that very reason, Rule

53 provides for a graded corrective action, namely, on the first occasion, the Speaker may suspend the member for the remainder of the day and if the misbehaviour is repeated in the same Session — for the remainder of the Session. [Paras 61, 62][815-F-G; 816F]

2.20 It must follow that only a graded approach is the essence of a rational and logical approach; and only such action of the Legislature which is necessary for orderly conduct of its scheduled business of the ongoing Session can be regarded as rational approach. Suspension beyond the Session would be bordering on punishing not only the member concerned, but also inevitably impact the legitimate rights of the constituency from where the member had been elected. [Para 63][817-A-B]

2.21 In the present case, the House has already adopted the Rules for conduct of its business and Rule 53 of the Rules expressly provides for the mechanism regarding suspension of its member. Indubitably, the source of powers and privileges 77 supra at Footnote No.66 of Legislatures in India is derived from Article 105(3) in case of Parliament and Article 194(3) concerning the State Legislature. In absence of a law to define such powers and privileges, as of now, it can only exercise those powers as existed in the House of Commons of the Parliament of United Kingdom at the commencement of the Constitution. [Para 65][817-E-G]

2.22 A priori, if the Legislature intended to depart from mechanism predicated in Rule 53, it ought to have expressly provided for that dispensation. If it had done that by a law or in the form of Rules framed under Article 208 of the Constitution, the legality and constitutionality thereof could have been tested. Suffice it to note, in absence thereof, it would inevitably be exercise of power without an express grant in that regard. In such a case, the exercise of power can only be implied or inherent and limited to the logic of general necessity by way of self-protective or self-defensive action reasonably necessary for proper exercise of the functions of the House during the ongoing Session. Anything in excess then for a day or the remainder of the ongoing Session, would not be necessary much less rational exercise of inherent power of the Assembly. Even, Rule 53 bestows authority in the Speaker to take action against the member only for ensuring orderly functioning of the House. Same logic must apply to the exercise of inherent limited power by the House, even if it may not be de facto under Rule 53. [Para 69][820E-G] M. S. M. Sharma v. Sri Krishna Sinha & Ors. AIR 1959 SC 395 : [1959] Suppl. SCR 806; Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Ors. (2007) 3 SCC 184 : [2007] 1 SCR 317; Amarinder Singh v. Special Committee, Punjab Vidhan Sabha & Ors. (2010) 6 SCC

113 : [2010] 4 SCR 1105; Sub- Committee on Judicial Accountability vs. Union of India & Ors. (1991) 4 SCC

699 : [1991] 2 Suppl. SCR 1 – followed.

Alagaapuram R. Mohanraj &Ors. v. Tamil Nadu

Legislative Assembly & Anr. (2016) 6 SCC 82 : [2016]

6 SCR 611; Sushanta Kumar Chand & Ors. v. The Speaker, Orissa Legislative Assembly and Anr. AIR 1973 Ori 111; Special Reference No.1 of 1964 AIR 1965 SC

745 : [1965] SCR 413; Jagjit Singh v. State of Haryana & Ors. (2006) 11 SCC 1 : [2006] 10 Suppl. SCR 521; Jagdishbhai Thakore & Anr. v. Chandrikaben

Chudasma & Ors. 2007 (48) 4 GLR 2998; Chhabildas Mehta, M.L.A. v. The Legislative Assembly, Gujarat State (1970) 11 GLR 729; K. A. Mathialagan v. P. Srinivasan & Ors. AIR 1973 Madras 371; A.M. Paulraj v. The Speaker, Tamil Nadu Legislative Assembly, Madras & Anr. AIR 1986 Madras 248; K. Anbazhagan & Ors. v. The Secretary, The Tamil Nadu Legislative Assembly, Madras & Ors. 1987 SCC OnLine Mad 89; V. C.

Chandhira Kumar, Member of Legislative Assembly & Ors. v. Tamil Nadu Legislative Assembly, Secretariat & Anr. 2013 (6) CTC 506; Kihota Hollohon v. Zachilhu & Ors. AIR 1993 SC 412; M. C. Mehta v. Union of India & Ors. (1999) 6 SCC 237 : [1999] 3 SCR 1173; Ratilal Bhanji Mithani v. Asstt. Collector of Customs, Bombay & Anr. [1967] 3 SCR 926 – referred to.

Barton v. Taylor (1886) 11 AC 197; Bradlaugh v. Gossett (1884) 12 QBD 271: 50 LT 620; Edward Kielley vs. William Carson (1842) 4 Moore PC 63 : 13 ER 225 64; Thomas William Doyle v. George Charles Falconer, (1865-67) LR 1 PC 328 : 36 LJPC 33 : 15 WR 366 – referred to.

Treatise of Sir Thomas Erskine: The Law, Privileges Proceedings and Usage of Parliament, fifteenth (1950) Edition; Black’s Law 11th Edition, 6th Edition; Concise Oxford Dictionary 8 th Edition – referred to. Case Law Refrence

referred to

Para 8

[1959] Suppl. SCR 806

followed

Para 34

referred to

Para 18 d

[2006] 10 Suppl. SCR 521

referred to

Para 18 d

followed

Para 22, 25, 34

followed

Para 23, 53

referred to

Para 19 c

[1991] 2 Suppl. SCR 1

followed

Para 24

referred to

Para 31