With the Supreme Court earlier today overruling the one-year suspension meted out to 12 opposition party MLAs by the Maharashtra Legislative Assembly, SAAHAS ARORA first chalks out whether the impugned resolution is subject to judicial review, and then examines the constitutional legitimacy of the suspension by looking at the position of the Supreme Court in similar matters in the past.
THE current political state of affairs in Maharashtra is at sixes and sevens with the Members of the State Legislative Assembly [MLA] stranded in a constitutionally dubious territory. On July 5, 2021, just two days into the commencement of the monsoon session, the members of the ruling alliance and the Devendra Fadnavis-led Opposition indulged in a political altercation over the tabling of a resolution that urged the Centre to release data on Other Backward Classes (OBCs) in lieu of their reservation of seats in Maharashtra local bodies. What followed was a complete disregard of parliamentary ethics that primarily involved an intemperate and tempestuous slanging exchange and an impassioned attempt to snatch the mace and uproot the mics. This being done, the metaphorical die of parliamentary action against this (mis)behaviour was cast.
However, in a rather unprecedented turn of events, the Maharashtra Parliamentary Affairs Minister Anil Parab slapped an undemocratic one-year suspension on 12 BJP MLAs. In a writ petition filed by the suspended members of the Assembly challenging this impugned suspension before the Supreme Court, a key constitutional question regarding the legality of this year-long suspension was whether it, within the constitutional scheme, has the requisite jurisdiction to intervene in the proceedings of the House, and if so, then to what extent is this intervention allowed.
Was the suspension amenable to judicial review?
At the very outset, it is pertinent to establish that the Court is constitutionally competent to interfere and scrutinise the impugned suspension (as it did, setting it aside earlier today). The respondents invoked legislative immunity under the mandate of Article 212 as a constitutional dyke that bars judicial review. The literature of Article 212 acts as a two-fold embargo on judicial inquiry in legislative proceedings. Firstly, it bars the Courts from calling into question any proceedings in the Legislature on grounds of alleged irregularity of procedure. Secondly, it immunises any authorised officer or Member of Legislative Assembly who is vested with the power to regulate procedure or the conduct of the business or for maintenance of order from judicial review in the exercise of those powers.
In the Constituent Assembly, Dr B.R. Ambedkar made it crystal clear that the proceedings of the Parliament can be questioned in a Court of law.
On a cursory reading of Article 212, one may be led to understand that it provides a carte blanche to the legislature by barring judicial review and thereby underpins a philosophy of legislative secrecy that has no interplay with the rest of the Constitution. However, a close reading of the Constituent Assembly Debates and a slew of judgments of the Supreme Court shall show that this is a flawed interpretation.
In the grammar of Article 212(1) lies a hidden constitutional premise that can be strategically used to legitimise judicial interference in legislative proceedings. Construing the mandate of Article 212(1) strictly, the immunity from judicial interference is only limited to a mere irregularity of procedure, and not illegality or unconstitutionality of procedure. In the Constituent Assembly, Dr B.R. Ambedkar, while replying to an amendment tabled by H.V. Kamath, made it crystal clear, in language that shall live as long as the Constitution, that the proceedings of the Parliament can be questioned in a Court of law:
“…where can the proceedings of Parliament be questioned in a legal manner except in a court? Therefore the only place where the proceedings of Parliament can be questioned in a legal manner and legal sanction obtained is the court.”
This comment sneaks into the logic of the dissent proffered by Justice K. Subba Rao, who, in the Search Light case of 1958 opined that the constitutional mandate of Article 194(1) has to be construed in light of the rest of the Constitution, especially the fundamental rights enshrined under Part III. Even in the famous In re under Article 143 of the Constitution of India case (1964), a five-judge Constitutional bench of the Supreme Court held”
“Art. 212(1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinised in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular.”
Additionally, the Supreme Court’s dictum of Raja Ram Pal vs. Speaker, Lok Sabha (2007), which formally took a departure from the contentious judgments of the Madras High Court in A.M. Paulraj (1985) and K. Andazhagan (1987), and the Punjab and Haryana High Court in Hardwari Lal (1977), was heavily relied on by the petitioners to underscore their argument which posits that the power of the Legislative Assembly is not absolute, and those decisions which are manifestly unconstitutional and illegal can be the subjects of judicial scrutiny. The rationale of this judgment stems from the comments made by Ambedkar in the Constituent Assembly. A five-Judge Bench of the Court held that an action or an order shall come under the radar of judicial review if it is suffering from “substantive illegality” or when it is ex-facie unlawful, illegal, or unconstitutional. In such an instance, the Parliament cannot be shielded from judicial scrutiny.
A five-Judge Bench of the Court held that an action or an order shall come under the radar of judicial review if it is suffering from “substantive illegality” or when it is ex-facie unlawful, illegal, or unconstitutional. In such an instance, the Parliament cannot be shielded from judicial scrutiny.
The decisions of the Supreme Court firmly establish that the legislative proceedings shall be judicially scanned on grounds of patent illegality or unconstitutionality. Fundamentally, these undergird the understanding that Article 212, in its broader spectrum, is not an exclusionary provision.
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Was the suspension order Constitutional?
Having established that, it is now pertinent to analyse the constitutional legitimacy of the impugned suspension. The quantum of suspension forms the biggest bone of contention. Prima facie, a one-year suspension and the procedure followed to tender the same is construed to be manifestly arbitrary, against the principle of natural justice, and in flagrant contravention to fundamental rights guaranteed under Part III of the Constitution.
Under Rule 53 of the Maharashtra Legislative Assembly Rules, no member of the Assembly can be ordered to withdraw from the meetings of the Assembly for a period longer than the session. Interestingly, Rule 53 further goes on to dictate that such a member “so directed to be absent shall, during the period of such absence, be deemed to be absent with the permission of the Assembly within the meaning of clause (4) of Article 190 of the Constitution.” Constitutionally, under Article 190(4), the House may declare a seat vacant if a member is absent for more than sixty days. Additionally, Section 151A of the Representation of People Act, 1951, mandates the holding of a bye-election within six months of the declared vacancy in order to fill the vacancy thus arisen. This implies that no constituency shall go unrepresented for more than six months unless the remainder of the term of the member in relation to a vacancy is less than one year or the Election Commission, in consultation with the Central Government, certifies that it is difficult to hold the bye-election within the said period.
A combined reading of these provisions will bring to light the fact that the impugned resolution tendering the suspension treads on thin constitutional ice. Fundamentally, the ramifications of this year-long suspension are detrimental to the very functioning of a democracy as it implies that the respective constituency which is represented by the suspended member shall remain unrepresented in the Assembly for one whole year, despite there being a constitutionally established procedure that authorises the declaration of a vacancy by the House after the Member’s continued absence for sixty days. Through the impugned suspension, which is rightly held by Justice A.M. Khanwalikar to be “worse than expulsion”, the House is not only transgressing the right of the constituency to be represented and be heard in the Legislature but is also dismantling the basic structure of the Constitution by discontinuing legislative representation for a year.
Equally incompatible with constitutional ideals was the procedure adopted while tendering the suspension. A fair hearing is an elemental prong of natural justice and the failure on part of the House to provide an opportunity to the suspended member to present their case and be heard, let alone provide a fair hearing, strikes at the very heart of the principle of natural justice. Additionally, the adoption of a reasonable procedure was held integral in guaranteeing the fundamental right under Article 21 in the Maneka Gandhi judgment of the Supreme Court in 1978. Suspending a Member of the State Legislative Assembly for an indiscriminate period of one year without giving a reasonable opportunity to be heard cannot be recorded as a reasonable procedure that is in consonance with the Maneka Gandhi dictum. Constitutionally, the procedure resorted to is manifestly unconstitutional as it not only oversteps the principle of natural justice but is also against the very letter of Article 21.
Through the impugned suspension, which is rightly held by Justice A.M. Khanwalikar to be “worse than expulsion”, the House is not only transgressing the right of the constituency to be represented and be heard in the Legislature but is also dismantling the basic structure of the Constitution by discontinuing legislative representation for a year.
There is no doubt that the maintenance of law and order in the Legislature is of paramount importance, and in no capacity is this comment an attempt to undermine or discredit the prerogative of the House to conduct its business, and hold orderly and sophisticated legislative proceedings. However, democracy cannot be used to stifle democracy itself. The constitutional vacuity on absolute legislative secrecy, and disproportionate and unconstitutional action against the Opposition members created by the impugned suspension was democratically adjudicated by the Court and in such a manner in consonance with the spirit of the Constitution.
(Saahas Arora is a fourth year law student reading at the ILS Law College, Pune. He is a researcher at Goeman Bind HTO, an international law and public policy think tank. The views expressed are personal.)