NEW DELHI: The resolution passed by the Maharashtra Legislative Assembly suspending 12 BJP MLAs is, prima facie, unconstitutional since such a suspension cannot operate beyond six months owing to a constitutional bar, the Supreme Court observed on Tuesday, reports Bar and Bench.
The Bench was hearing a plea filed by BJP legislators led by Ashish Shelar, challenging the resolution suspending them for a year. They were suspended from the Assembly in July 2021 after the State government accused them of "misbehaving" with Presiding Officer Bhaskar Jadhav in the Speaker's chamber, on the first day of the monsoon session.
Citing relevant rules, the top court pointed out that the Assembly lacks power to suspend a member beyond 60 days. It referred to Article 190(4) of the Constitution which says a seat will be deemed to have become vacant if a member remains absent in the House without its permission for a period of 60 days. Even if the Assembly rules are read in consonance with the Constitution, the maximum bar could be for six months only. This is because a constituency cannot go unrepresented for beyond six months.
When Senior Advocate Aryama Sundaram, appearing for the Maharashtra Assembly, argued that the House makes its own rules and can choose to depart from it, Justice Maheshwari disagreed, pointing out that one-year suspension will amount to a punishment of the constituency of these elected representatives.
‘‘Saying you can do what you want means what? How long can seat remain vacant is 60 days. At the most, 6 months’ outer limit can be there. Here, we are talking about a constituency being represented in a parliamentary form of democracy? Is this not hitting the basic structure of the constitution when the 12 constituencies are unrepresented?" said Justice Maheshwari.
"Now it is 12. Tomorrow it will be 120. It is a dangerous argument. Absolute power does not mean unbridled. This is a serious issue," Justice Khanwilkar pointed out.
The court said that the decision of suspension is even worse than expelling them, since no one can then represent the constituents of the suspended representatives in the Assembly. "We will say that the decision is unconstitutional. House has authority to suspend you but not beyond 59 days. House is also governed by constitution and fundamental rights. This is not punishing the member but punishing the constituency as a whole…’’ the Bench observed.
The top court further remarked, "We can say that the decision of suspension can only operate till 6 months and later than that it will be hit by constitutional bar."
Senior Advocate Mahesh Jethmalani, appearing for one of the suspended legislators, argued that the top court "has to safeguard the sanctity of these proceedings."
"Streams of justice has to be ensured and this cannot happen unfairly. Otherwise every majority of members will rub against the minority. Else why have rule book in Parliament?" Jethmalani submitted.
The suspended MLAs are Dr Sanjay Kute, Ashish Shelar, Abhimanyu Pawar, Girish Mahajan, Atul Bhatkhalkar, Harish Pimple, Jaikumar Rawal, Yogesh Sagar, Narayan Kuche, Bunty Bhangdiya, Parag Alvani and Ram Satpute.
