Day 1 Oral Hearing

On December 14th, a two-judge bench comprising Khanwilkar and Ravikumar JJ began the first day of hearings in a group of petitions filed by twelve BJP MLAs challenging their one year suspension from the Maharashtra Legislative Assembly. The MLAs were suspended by a resolution dated July 5th 2021 for indulging in offensive behaviour on the floor of the house, and in the chambers of the Speaker. 

Today Senior Advocates Mukul Rohatgi and Harish Salve, appearing for the suspended MLAs, argued that the suspension violates the Maharashtra Legislative Assembly Rules (2015), and principles of natural justice. Senior Advocates Aryama Sundaram and Dushyant Dave, for the State of Maharashtra, submitted that the Court’s power to judicially review parliamentary proceedings is limited by Article 212 of the Constitution. 

Suspension Is Arbitrary and Disproportionate 

Mr. Rohatgi submitted that Rule 53 of the Assembly Rules allows the Speaker to ask an MLA to withdraw from the house on account of disruptive behaviour only till the end of the on-going session. So, the Speaker did not have the power to suspend the MLAs for a year. Further, he argued that the one year suspension was arbitrary and disproportionate to the MLAs’ minor misdemeanour. 

Mr. Salve argued that in exercising Rule 53 powers, the Speaker is expected to maintain a balance between the efficient functioning of the house, and the autonomy of members to express themselves freely. The Rule is not meant to be used to punish, and suspension must be revoked as soon as the threat to the order of the house lapses. 

Mr. Rohatgi and Mr. Salve pointed out that when using Rule 53, the Speaker is performing a quasi-judicial function, and so must adhere to principles of natural justice. In this case the MLAs’ right to be heard before suspension was violated as they weren’t given an opportunity to defend their actions. 

Mr. Salve argued that the Assembly Rules require a suspension motion to be heard by a Privilege Commission before the Speaker decides to act on it. The Commission is expected to rise above partisan politics, and act ethically in making decisions of this nature. He argued that the suspended MLAs’ case was not placed before any such Commission. 

Mr. Salve and Mr. Rohatgi sought an interim stay on the suspension until the Court decides on its validity, so that the MLAs could return to the assembly for the winter session. 

Supreme Court Has Limited Powers to Review Parliamentary Processes

Mr. Sundaram, for the State of Maharashtra, argued that while a power of suspension existed under Rule 53, the Speaker had not invoked it to suspend the petitioners—they had been suspended by a motion moved by a minister, and then approved by the majority of the house in exercise of their Article 194(3) powers. 

Khanwilkar J asked whether the State government could shield itself under a general constitutional provision after it had made specific rules that laid down a procedure for suspension.

Mr. Sundaram responded saying that if the issue was a breach of procedure as the petitioners had claimed, then the Court’s jurisdiction was ousted by Article 212. This provision disallows the Court from inquiring into the validity of Parliamentary decisions on the basis of procedural irregularity. 

The Bench asked if it had the power to test the decision for arbitrariness like it would test an Act passed through majority resolution. Mr. Sundaram submitted that the State government was not challenging the Court’s jurisdiction—it was arguing that the scope of judicial review of a majority resolution would be narrower than that of a quasi-judicial decision made by the Speaker. 

Mr. Dushyant Dave argued that the petitioners were not disputing their misdemeanour. So, the Bench would have to see if the suspension was proportionate to the alleged acts. Since this could not be determined through a prima facie inquiry, Mr. Dave urged the Court to dismiss the prayer for an interim stay on the suspension. 

The Bench did not stay the suspension, but stated that the petitioners are free to urge the Speaker to revoke his decision. Notice was issued to the Maharashtra government on the main matter.