Day 4 Oral Hearing: Maharashtra MLA Suspension

At the end of four days of hearings, the Supreme Court (SC), on January 19th 2022, reserved judgment in challenges to the one year suspension of 12 BJP MLAs from the Maharashtra Legislative Assembly on account of misconduct. In a previous hearing, the Bench appeared unconvinced by the Maharashtra government’s argument that the Legislative Assembly had unlimited powers to decide the length of suspension for MLAs. Today the Bench responded more favorably to the argument that any suspension beyond the ongoing session of the Assembly was excessive. 

Senior Advocate Mahesh Jethmalani, appearing for the suspended MLAs, argued that the Constitution makers envisioned the privileges of Legislative Assemblies to be akin to those of the House of Lords in 1950. He submitted that the House of Lords had a system of graded suspension—the length of suspension could be increased gradually for every successive misdemeanour. However he argued that the suspension could not extend beyond the ongoing session. The Bench agreed with this view. Justice A.M. Khanwilkar stated that Rule 53 of the Maharashtra Legislative Assembly Rules, 2015 captured this system. 

Mr. Jethmalani argued that this interpretation of the power to suspend was upheld by the Supreme Court when it approvingly cited an Australian privy council judgment in Barton v Taylor. He asked why a Legislative Assembly should be permitted to deviate from a ‘constitutionally guaranteed’ scheme towards an arbitrary system of suspension. The Bench agreed that the longer the suspension term extended beyond the ongoing session, the more perverse it would become. 

The Bench rejected all arguments which would require interpretation of constitutional provisions dealing with the nature of Legislative Assemblies’ power to suspend MLAs. Khanwilkar J noted that questions of this kind would require reference to a Constitution Bench and prolong the dispute. Senior Advocate Neeraj Kishan Kaul’s argument that Article 208 made the use of the Assembly’s inherent powers subject to fundamental rights was rejected for this reason. 

Senior Advocate Siddharth Bhatnagar’s argument that the prolonged suspension would fall foul of Article 190(4), which requires that all vacant Assembly seats be filled within 6 months, was similarly rejected. The Bench was, in a previous hearing, impressed with this argument. It had stated that the prolonged vacancy in violation of Article 190(4) would threaten democracy. The Maharashtra government previously argued that the vacancy under Article 190(4) did not automatically arise from absenteeism, but had to be recognized by the Assembly. In light of this argument, the Bench declined to take up the burden of interpreting Article 190(4). 

Instead of engaging in constitutional interpretation, the Bench stated that it would ‘cull out’ the limits on the Assembly’s power to suspend from previous SC judgments. The reserved judgment, hence, is expected to study the Court’s jurisprudence on the inherent powers of legislative assemblies and declare whether the Assembly’s power to suspend is limited by the Constitution or any norms. As the Bench had previously observed, the judgment will impact the use of suspension powers by majority parties to keep opposition party MLAs out of the Assembly.