The Supreme Court on Wednesday reserved its judgment on petitions filed by 12 BJP MLAs challenging their suspension from the Maharashtra legislative Assembly for one 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 is 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 to discipline. He pointed out that in a recent case of suspension of 12 Rajya Sabha MPs during the Winter Session of Parliament, “the members…were given an opportunity to apologise”. He contended that in the case of the Maharashtra MLAs, what was alleged was a first-time offence.
Hearing the matter earlier, the bench comprising Justices A M Khanwilkar, Dinesh Maheshwari and C T Ravikumar had remarked that the suspension was prima facie unconstitutional. 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 60 days. 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 six months. The court had pointed out that it was a question of a constituency being denied representation in the legislature.
Jethmalani on Wednesday argued that while the House had the power to suspend a member, the main question to be decided was the existence and extent 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 expulsion.
Jethmalani contended that the suspension cannot be beyond a session. “On prorogation, all Bills lapse. So all disciplinary actions also lapse,” he said.
Senior advocate Neeraj Kishen Kaul, 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 rules for regulating subject to the provisions of this 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.