Ashish Shelar vs The Maharashtra Legislative Assembly

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.797 OF 2021

ASHISH SHELAR & ORS. ...PETITIONERS

VERSUS

THE MAHARASHTRA LEGISLATIVE ASSEMBLY & ANR. …RESPONDENTS

WITH

WRIT PETITION (CIVIL) NO.807 OF 2021 WRIT PETITION (CIVIL) NO.800 OF 2021 AND WRIT PETITION (CIVIL) NO.808 OF 2021

JUDGMENT

A.M. KHANWILKAR, J.

1. The petitioners have been duly elected as members of the

current Maharashtra Legislative Assembly (2019­2024). They

got elected from different constituencies in the State of

Maharashtra. They belong to the Bharatiya Janata Party1, Signature Not Verified Digitally signed by NEETU KHAJURIA Date: 2022.01.28 12:00:07 IST Reason:

the principal Opposition Party in the Maharashtra Legislative

1 for short, “BJP” 2

Assembly. The Ruling Party is a coalition between the Shiv

Sena, the Nationalist Congress Party (NCP) and the Indian

National Congress (INC) christened as “Maha Vikas Aghadi”.

2. This lis emanates from the events as unfolded during the

Monsoon Session of the Maharashtra Legislative Assembly on

5.7.2021. The proceedings of the House witnessed heated

exchanges between the members of the Opposition Party and

the Ruling Party due to an impression formed by the former

that the business of the House was being conducted in

unilateral manner, with conscious and engineered effort to

suppress voice of the Opposition Party. In that, even the

Leader of Opposition was denied an opportunity to speak on a

crucial motion under consideration. At the relevant time, the

House was presided over by the Chairman nominated under

Rule 8 of the Maharashtra Legislative Assembly Rules 2, who

according to the petitioners, denied opportunity to the

Opposition Party to speak including to the Leader of

Opposition.

2 for short, “Rules” 3

3. It is alleged that in the meeting of the Business Advisory

Committee, which preceded the actual Assembly Session,

there was a concerted effort on behalf of the members of the

Ruling Party to cut short the Assembly Session for a period of

two days especially when the State was facing unprecedented

situation owing to pandemic, which needed elaborate

deliberation in the House. The concerted effort was to strip of

all legislative tools available to the Opposition Party so as to

make sure that voice of opposition is muffled and suppressed.

4. The Chair of the Speaker of the House was vacant at the

relevant time due to stepping down by the incumbent. The

election for appointing a new Speaker of the Assembly was yet

to be conducted. As per Rule 8 of the Rules, in such a

situation other nominated member of the House had to

preside on 5.7.2021. As aforesaid, a general feeling had

developed amongst the members of the Opposition Party that

the business of the House was not being transacted in

congenial manner and they were prevented from raising

important questions and express their views on matters of

public importance. To wit, when the Minister was moving a 4

resolution in relation to the empirical data pertaining to OBC,

the Leader of Opposition wanted to object to the same.

However, he was denied that opportunity. That eventually led

to heated exchanges between the members of both sides and

consequently, the House was adjourned.

5. Thereafter, some of the members of the Opposition went to

meet the Deputy Speaker in his chamber to vent out their

grievance regarding the unfair manner of conducting

proceedings by the nominated Chairman. At that time, some

members of the Ruling Party (Shiv Sena) arrived and engaged

in heated exchanges. When the House resumed, the

nominated Chairman referred to the fact that some members

of the Shiv Sena were present in the chamber and involved in

heated exchanges, but no action was being taken against

them as both the sections had apologised to each other.

According to the petitioners, when the House resumed, by

way of courtesy a sincere apology was graciously tendered by

the Leader of Opposition to the Chairman for the earlier

incident while adverting to the fact that none of the MLAs

belonging to the Opposition Party (BJP) including the 5

petitioners herein had abused the Chairman. Soon

thereafter, to the utter surprise of the petitioners (and other

members of the Opposition Parties), the Minister for

Parliamentary Affairs moved a resolution for initiating action

against 12 MLAs of the BJP for having committed contempt of

the House. That motion was tabled in the House and the

Chairman was called upon to do the needful. The Chairman

then called upon the House to pass the said resolution. The

House in turn passed that resolution by majority votes after it

was put to vote at 14:40 hours on 5.7.2021. The same reads

thus:

“P.H.: Contempt of the House by objectionable behavior

M.H.: Resolution of Minister for Parliamentary Affairs regarding suspension of M.L.A.s for Contempt of the House due to objectionable behavior.

1) Dr. Sanjay Kute,

2) Adv. Ashish Shelar,

3) Shri Abhimanyu Pawar

4) Shri Girish Mahajan

5) Shri Atul Bhatkhalkar

6) Adv. Parag Alavani,

7) Shri Harish Pimple

8) Shri Ram Satpute,

9) Shri Jaikumar Rawal,

10) Shri Yogesh Sagar,

11) Shri Narayan Kuche,

12) Shri Kritikumar @ Bunty Bhangdiya, M.L.A. 6

Adv. Anil Parab (Minister for Parliamentary Affairs):

Hon’ble Speaker, I wish to move the following resolution with your kind permission.

“On 5th July 2021 when the business of the House was being conducted, Hon’ble M.L.As Dr. Sanjay Kute, Adv. Ashish Shelar, Sarvashree Abhimanyu Pawar, Girish Mahajan, Atul Bhatkhalkar, Adv. Parag Alvani, Sarvashree Harish Pimple, Ram Satpute, Jaikumar Rawal, Yogesh Sagar, Narayan Kuche, Kirtikumar @ Bunty Bhangdia misbehaved in the House, addressed the Chairman in the Speaker’s Chair unparliamentary language, tried to take the mike and Rajdand, despite repeated warnings, all these members misbehaved in the chamber of the Hon’ble Speaker even after the House was adjourned and abused and manhandled the Chairman in the Speaker’s Chair. Due to the indisciplined and unbecoming behavior resulting in maligning the dignity of the House, this House resolves to suspend the membership of Sarvashree Dr. Sanjay Kute, Adv. Ashish Shelar, Sarvashree Abhimanyu Pawar, Girish Mahajan, Atul Bhatkhalkar, Adv. Parag Alvani, Sarvashree Harish Pimple, Ram Satpute, Jaikumar Rawal, Yogesh Sagar, Narayan Kuche, Kirtikumar @ Bunty Bhangdia for a period of one year. Similarly, during the period of suspension they may be restrained from entering into the premises of Vidhan Bhawan at Mumbai and Nagpur.”

Hon’ble Speaker, I request the House to pass this resolution.

Resolution has been tabled.

Chairman in the Speaker’s Chair: Now I put this resolution to vote.

Resolution has been passed after putting it to vote.”

6. According to the petitioners, the Leader of Opposition

thereafter wrote four letters to the Deputy Speaker on

7.7.2021 for furnishing relevant information including CCTV 7

footage, video recording of the entire proceedings and a copy

of the verbatim proceedings of the record of the Legislative

Assembly dated 5.7.2021 and 6.7.2021. Thereafter, the

petitioners also sent letters to the Deputy Speaker requesting

him to furnish relevant material of the proceedings including

recording of the proceedings in the House dated 5.7.2021 and

6.7.2021.

7. Eventually, on 22.7.2021, the petitioners approached this

Court by way of these writ petitions under Article 32 of the

Constitution of India, for issuing appropriate writ, order or

direction so as to quash and set aside the impugned

resolution dated 5.7.2021 passed by the Maharashtra

Legislative Assembly being unconstitutional and grossly illegal

and for enforcement of their fundamental rights as

guaranteed under Articles 14 and 21 of the Constitution.

8. It is urged that the impugned resolution dated 5.7.2021 has

been passed in undue haste and is politically motivated. It is

primarily intended to adversely impact the numbers of the

Opposition Party in the House. It has been passed without 8

giving an opportunity of hearing to the petitioners much less

calling upon them to offer written explanation. To buttress

this ground, reliance has been placed on a decision of two­

Judge Bench of this Court in Alagaapuram R. Mohanraj &

Ors. vs. Tamil Nadu Legislative Assembly & Anr.3.

9. It is urged that the events, as unfolded, on the face of it,

would indicate the undue haste in which the impugned

resolution came to be passed within a matter of hours, that

too, without granting opportunity to the petitioners to meet

the case against them. This was grossly and patently violative

of Article 14 of the Constitution. For, there was absolutely no

material before the Chairman or the Minister to substantiate

the need for suspending the petitioners, that too for such a

long period.

10. Further, even the impugned resolution dated 5.7.2021

does not refer to any material on the basis of which such

extreme step of suspension had been taken against these

petitioners. There is no indication in the resolution as to how

3 (2016) 6 SCC 82 9

the 12 members (petitioners herein) were identified from a

huge crowd of people and singled out for initiating the action

of suspension. As a matter of fact, the impugned resolution

itself alludes to unruly behaviour on the floor of the House

and outside the chamber of the Speaker. The video footage of

the alleged incident, which is in public domain, shows a large

crowd of people and there is absolutely no way of identifying

the 12 MLAs (petitioners herein) who have been suspended

and singled out. As a matter of fact, the Minister who

brought the motion was not even present in the chamber of

the Speaker. In a similar situation, this Court in

Alagaapuram R. Mohanraj4 had to quash the resolution for

lack of evidence to identify the suspended members of the

Tamil Nadu Legislative Assembly.

11. In the present case, the impugned resolution makes no

reference to any material much less video footage, etc., which

has been relied upon before bringing an action for

suspension. Moreover, it is amply clear from the impugned

resolution that the action against the petitioners was for

4 supra at Footnote No.3 10

alleged unruly behaviour/misconduct and not for breach of

privilege that is covered by an independent dispensation. As

regards suspension of a member of the House, as per Rule 53

of the Rules such action could be initiated “only” by the

Speaker after complying with the principles of natural justice

and fair play. The provision, such as Rule 53, is engrafted to

put a check on the majoritarian attitude of the Government.

The Speaker is expected to act fairly, in particular during the

conduct of proceedings in the House towards both sides,

namely, members of the Ruling Party as well as of the

Opposition Party. So to speak, he exercises quasi­judicial

function.

12. It is urged that a motion for unruly behaviour in the

House can never be a subject matter of voting since it would

enable the political party in power to virtually wipe out the

opposition for some trivial acts committed by their members,

by suspending as many members of the Opposition Party.

The decision of suspension, therefore, must rest with the

Speaker and not the House. Notably, Rule 53 of the Rules

prescribes a maximum period of suspension not exceeding 11

remainder of the Sessions. Thus, suspension of the

petitioners for a period of one year is grossly unconstitutional

and illegal. If the impugned resolution was allowed to prevail,

nothing would prevent the political party in power (in

majority) to resort to such mechanism and to suspend a large

number of members of Opposition Party upto five years or

remainder of the term of the Legislative Assembly by resorting

to voting in the House.

13. It is also urged that the erstwhile Speaker had stepped

down, as a result of which, he ceased to be the Chairman. As

such, heated exchanges allegedly occurring between him and

the petitioners outside the House, would not invite action of

suspension, inasmuch as after stepping down as Speaker, he

would continue only as an ordinary MLA. Further, the

Chairman nominated under Rule 8 of the Rules is not

empowered to exercise powers under Rule 53, considering the

fact that there was a Deputy Speaker of the House who could

have discharged the functions of the Speaker after his

stepping down or during his absence as per Article 180 of the

Constitution. In that sense, the impugned resolution dated 12

5.7.2021 is nullity and non est in the eyes of law, having

passed without authority of law.

14. These writ petitions came up for preliminary hearing on

14.12.2021. After hearing learned counsel for the petitioners

and for the State of Maharashtra, the Court passed the

following order:

“We have heard learned counsel for the petitioners and for the State of Maharashtra.

These matters involve issues of moment for a Westminster form of Democracy.

It is urged by the petitioners that the impugned resolution by the Maharashtra Legislative Assembly dated 05.07.2021 suffers from the vice of denial of opportunity of being heard and adherence to the rules of natural justice.

It is also urged that the resolution neither follows the procedure prescribed under Rule 53 of the Maharashtra Legislative Assembly Rules (for short "The Rules"), namely, for suspension of member of the House by the Speaker nor predicated in Part XVIII including Rule 273 to take action against the member for breach of privilege of the House.

It is also urged that the power of Legislative Assembly though absolute in certain respects, the decision reached by the House can always be questioned on the settled principles amongst others being manifestly grossly arbitrary or irrational, violating the fundamental rights and such other grounds, as may be permissible and delineated in the decision of the Constitution Bench of this Court in Raja Rampal Vs. Hon'ble Speaker, Lok Sabha & Ors. reported in (2007) 3 SCC 184, including the two Judge decision of this Case in Alagaapuram R. Mohan Raj & Ors. Vs. Tamil Nadu Legislative Assembly & Anr. reported in (2016) 6 SCC 82. Further, for the nature 13

of impugned resolution, it not only abridges the rights of as many as twelve members, as guaranteed to them under Article 194 of the Constitution of India, but also of the constituencies represented by each of them by merely invoking the route of majority opinion of the House, an unprecedented and unconventional move not backed by any similar precedent. In any case, the period of suspension of one year is unconscionable and manifestly arbitrary and irrational.

On the other hand, it is urged by the learned counsel for the State that Article 212(1) of the Constitution of India makes it amply clear that it is not open to the Court to explore the argument of proper procedure not followed by the House. Further, it is not open to the Court to do judicial review of the final decision on the basis of abstract arguments and grounds urged before this Court; and even if a sui generis procedure has been adopted by the House, it is the absolute prerogative of the House to regulate its business.

It is also urged by the learned counsel for the State that the petitioners have not refuted the case made out against them about misbehaviour in the House and outside the House as well. Indeed, this plea has been countered by learned counsel appearing for the petitioners.

All these are debatable issues and would require deeper consideration.

As a result, we deem it appropriate to issue a formal notice to the respondents, returnable on 11.01.2022.

Mr. Sachin Patil, Advocate waives notice for respondent No. 2­State.

Additionally, the petitioner is permitted to serve dasti notice on the respondent No.1.

Needless to observe that pendency of these petitions will not come in the way of the petitioners to explore the possibility of urging upon the House to show leniency and reconsider the decision impugned in these writ petitions, at least, to the extent of reducing the term specified therein. That is a matter to be considered by the House appropriately.” 14

By this order, the Court had expressed a sanguine hope that the

matter would get resolved in the ensuing Session scheduled in the

following week. Presumably, no effective headway had been made

in that regard.

15. It appears that notice sent to respondent No.1, as per

office report, has been duly served. We have been informed

by the learned counsel appearing for the State as well as the

petitioners that respondent No.1 would not be appearing in

the present proceedings. The respondent­State, however, is

defending the impugned resolution by filing counter affidavit

dated 7.1.2022 sworn by Mr. Satish Baban Waghole, In

Charge Secretary, Parliamentary Affairs Department. The

reply affidavit amongst others points out that the issues

raised by the petitioners are essentially the matters

concerning procedure in the House of the Legislative

Assembly and at best regarding some procedural irregularities

committed during the proceedings. That cannot be the basis

to invoke jurisdiction of this Court which is constricted by the

mandate of Article 212 of the Constitution, as it concerns the 15

powers and privileges of the House. Thus, the petitioners are

not entitled for any relief under Article 32 of the Constitution.

16. It is urged that the suspension for unruly conduct in the

House is not solely referrable to Rule 53 of the Rules.

Whereas, it is open to the Legislature to depart from the Rules

and take a decision which could exceed the period prescribed

in the Rules. The period of one year suspension cannot be

said to be arbitrary or disproportionate as such when the

Legislature has the prerogative to reprimand or admonish its

members, independent of the power of the Speaker of the

House to order withdrawal of members under the Rules. The

House has the power to take suitable action against its

members who transgress the limits laid down in Article 194(1)

of the Constitution, being its inherent power and it is not

open to the Judicature to have a second­guess approach in

that regard.

17. It is urged that from the averments in the writ petitions

itself, it is conceded that the Leader of Opposition had to

apologise for the unruly behaviour of the members of the 16

Opposition including that of the petitioners. The petitioners

had committed acts which resulted in undermining and

maligning the dignity of the House in the face of the House

and for which reason, the House decided to suspend the

petitioners. In such a situation, there is no question of

granting any opportunity of hearing or for furnishing written

explanation, being a case of contempt of the House on the

face of it while it was in Session. The reply affidavit

essentially rebuts the legal arguments of the petitioners and

reiterates the factual position emanating from the impugned

resolution itself and urges this Court to dismiss the writ

petitions being devoid of merits.

Submissions ­ Petitioners:

18. The petitioners are represented by Mr. Mahesh

Jethmalani, Mr. Mukul Rohatgi, Mr. Neeraj Kishan Kaul and

Mr. Siddharth Bhatnagar, learned senior counsel. The sum

and substance of their submission is as follows. First, the

impugned resolution passed by the House is without

jurisdiction. For, the power to suspend as per applicable 17

Rules is bestowed “only” upon the Speaker of the House and

as the Office of the Speaker was vacant at the relevant time,

upon the Deputy Speaker as per Article 180 of the

Constitution. Further, the exercise of power by the Speaker is

a quasi­judicial decision which must, therefore, precede with

a formal inquiry, opportunity of hearing to the member

concerned and recording of satisfaction about the nature of

misdeeds committed by the member concerned amounting to

grossly disorderly conduct. In short, the House had no

jurisdiction to pass the impugned resolution much less the

manner in which it has been passed, in undue haste.

Second, no known or prescribed procedure has been followed

to order withdrawal of the members from the Assembly.

Thus, a gross illegality has been committed by the House.

The House is bound to adhere to the Rules framed by it for

that purpose under Article 208 of the Constitution. The

applicable Rules provide for different dispensation. The power

to order withdrawal of its member, is provided in Rule 53 and

regarding breach of its Privileges is governed by Part XVIII of

the Rules (vide Rules 273 to 289). A 15 days’ notice regarding 18

the motion introduced in the House is required to be given

under Part XII of the Rules being Rule 106 of the Rules. None

of these have been followed in tabling of the subject motion

and in passing the impugned resolution. Thus, it is not a

case of mere procedural irregularity, but of being

unconstitutional, grossly illegal and irrational resolution

adopted by the House including the direction to the

petitioners to withdraw from the House for one year vide

impugned resolution. Thirdly, there has been gross violation

of principles of natural justice. In that, no opportunity

whatsoever was afforded to the petitioners much less a formal

notice calling upon them to offer their explanation. Had such

an opportunity been given, it would have been possible for the

petitioners to demonstrate that they were not part of the

unruly mob which had indulged in activities amounting to

grossly disorderly conduct.

18.(a) It is also urged that at any rate the impugned

resolution suspending the petitioners for a period of one year

cannot be countenanced in law being unconstitutional,

grossly illegal and irrational. Inasmuch as, Rule 53 provides 19

for a graded approach to be adopted by the Speaker for

ensuring orderly conduct of business in the House by

directing withdrawal of a member, who in his opinion, had or

was creating obstruction in that regard. Inasmuch as, if it is

his first instance of such type, the Speaker could order his

withdrawal for the remainder of the day’s meeting. In case of

repeat misconduct during the same Session, the Speaker

could order withdrawal of such member for the remainder of

the Session. Had it been a case of exercise of power under

Rule 53, the member so directed to be absent shall, during

the period of such absence, is deemed to be absent with the

permission of the Assembly within the meaning of clause (4)

of Article 190 of the Constitution. However, the impugned

resolution makes no reference to this aspect at all.

18.(b) On the stated position taken by the respondents that the

power has been exercised by the House and is not ascribable

to Rule 53, but the inherent power of the House, even in that

case, the suspension of the member of the House cannot go

beyond the ongoing Session. Inasmuch as, excess and

unnecessary period of suspension of the member from the 20

House is not only undesirable in the matter of democratic

values enunciated in the Constitution, but substantively or

grossly illegal and irrational, if not bordering on perversity.

For, longer period of suspension beyond the ongoing Session

would not only be unnecessary, but nearer to being arbitrary,

irrational and perverse. Taking any other view would entail in

validating grossly illegal and irrational resolution of the

House. To buttress this argument, support is drawn

additionally from the dispensation predicated in the

concerned Standing Order of the United Kingdom regarding

the Parliamentary Procedure as well as extracts from Sir

Thomas Erskine May’s Treatise on The Law, Privileges

Proceedings and Usage of Parliament. It is urged that the

consequence of absence of suspended member of the House

beyond sixty days would entail in vacation of the seat

occupied by him/her, as predicated in Article 190(4); and in

which case, in law, the concerned constitutional Authority

would be obliged to initiate process to fill in the vacant seat(s)

not later than six months from the date of such vacancy in 21

terms of Section 151A5 of the Representation of the People

Act, 19516. This is essential also to ensure that the

concerned constituency does not remain unrepresented in the

Legislative Assembly for more than six months owing to the

action against its duly elected representative by the House.

Had it been a case of expulsion, it would not have resulted in

punishment either to the concerned member or the

constituency represented by him. For, the member concerned

in that case could get re­elected to occupy the vacant seat not

later than six months. Thus understood, the timeline of

suspension of the petitioners prescribed in the impugned

resolution is worst and operates as inflicting penalty upon the

petitioners as well as the constituency represented by them.

In other words, it is worse than expulsion of a member of the

House.

5 151A. Time limit for filling vacancies referred to in sections 147, 149, 150 and 151.— Notwithstanding anything contained in section 147, section 149, section 150 and section 151, a bye­election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of the occurrence of the vacancy:

Provided that nothing contained in this section shall apply if—

(a) the remainder of the term of a member in relation to a vacancy is less than one year; or

(b) the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye­election within the said period.

6 for short, “1951 Act” 22

18.(c) In the present case, learned counsel contends that the

House had to assemble for only two days of the ongoing

Session. The suspension, therefore, ideally could not have

been for a period more than the remainder of the Session in

terms of Rule 53 of the Rules. Moreover, as the motion was

introduced in the House for initiating contempt, it ought to

have proceeded only under Part XVIII of the Rules by following

procedure prescribed therein which includes giving

opportunity of hearing to the member before the Committee of

Privileges. If it was to be regarded as an ordinary motion,

then the procedure under Rule 106 of the Rules would have

required 15 clear days’ notice. Further, Rule 110 7 postulates

that the resolution if moved by the Minister, it should precede

with seven days’ notice. Even this requirement had been

violated. In either case, the impugned resolution suffers from

the vice of denial of principles of natural justice, besides being

arbitrary, perfunctory and founded on unsubstantiated

allegations against the petitioners. To buttress this

7 110. Government Resolutions.— (1) The provisions of rule 106 shall not apply to resolutions of which notice is given by a Minister or the Advocate General.

(2) Seven days’ notice shall be necessary in respect of such resolutions (emphasis supplied) 23

submission, reliance has been placed on the dictum in

Alagaapuram R. Mohanraj8.

18.(d) It is then urged that at any rate the time period of

suspension as specified in the impugned resolution is manifestly

arbitrary and grossly disproportionate and excessive, besides being

grossly illegal and unconstitutional being hit by Articles 14 and 21

of the Constitution. For, the impugned resolution entails in denial

of representation even to the concerned constituency for such a

long time, much less beyond the period specified in the

Constitution [Article 190(4)] and the mandate of conducting

elections not later than six months from the date of

vacancy vide Sections 150 and 151A of the 1951 Act.

Reliance is placed on Barton vs. Taylor9, Sushanta Kumar

Chand & Ors. vs. The Speaker, Orissa Legislative

Assembly and Anr.10, M.S.M. Sharma vs. Sri Krishna

Sinha & Ors.11, Special Reference No.1 of 1964 12, Jagjit

Singh vs. State of Haryana & Ors. 13, Raja Ram 8 supra at Footnote No.3 (paras 38 to 42) 9 (1886) 11 AC 197 10 AIR 1973 Ori 111 (Division Bench) 11 AIR 1959 SC 395 (5­Judge Bench) (paras 25,26,28 and 29) 12 AIR 1965 SC 745 (7­Judge Bench) (paras 31,32,35,36,39 to 41,56,60,61,124 and 125) 13 (2006) 11 SCC 1 (3­Judge Bench) (para 44) 24

Pal vs. Hon’ble Speaker, Lok Sabha & Ors. 14 and Amarinder

Singh vs. Special Committee, Punjab Vidhan Sabha & Ors.15.

18.(e) It was also argued that suspension of members beyond

the period specified in Rule 53 tantamounts to deviation from the

logic stated therein. And being a case of deviation from the

applicable Rules, it was essential to first suspend Rule 53. That

could be done by way of a motion under Rule 57 16. Moreover, the

general powers of the Speaker have been constricted in terms of

Rule 5817, namely, limited to matters not specifically provided for in

the rules.

Submissions – Respondent (State of Maharashtra):

19. Mr. C. Aryama Sundaram, learned senior counsel

appearing for the State of Maharashtra, however, would urge

that much argument of the petitioners is founded on

untenable assumption that the Rules were binding on the

14 (2007) 3 SCC 184 (5­Judge Bench) 15 (2010) 6 SCC 113 (5­Judge Bench) (paras 47,62,64 and 65) 16 57. Suspension of rules.— Any member may, with the consent of the Speaker, move that any rule may be suspended in its application to a particular motion before the House; and if the motion is carried, the rule in question shall be suspended for the time being. 17 58. General Powers of Speaker.— All matters not specifically provided for in these rules and all questions relating to the detailed working of these rules shall be regulated in such manner as the Speaker may, from time to time direct.

(emphasis supplied) 25

House; and it was not open to the House to proceed dehors

the rules formulated under Article 208 of the Constitution.

He submits that it is open to the Legislature to deviate from

the Rules, even if framed under Article 208. Such rules are

only akin to the byelaws of the society which are not

enforceable nor can it be regarded as statutory rules.

Further, grounds of challenge set forth by the petitioners are

essentially questioning the procedure adopted by the House

in adopting the impugned resolution. Such a challenge

cannot be maintained nor could be entertained by the Court

in light of bar under Article 212(1) in particular. It is not

open to the Court to question the decision of the House on the

ground of irregularities in the procedure. For, the House has

the prerogative to adopt its own procedure even dehors the

rules framed under Article 208. In a given situation, the rules

being procedural rules can be deviated by the House, if the

need so arises. The Court can only enquire into the question

as to whether the House had jurisdiction to adopt such a

resolution and no further.

26

19.(a) He further submits that it is cardinal that the powers

and privileges of the House of Legislatures as delineated in

Article 194 of the Constitution are non­justiciable, forming

part of Chapter III (the State Legislature) in Part VI of the

Constitution. It is so mandated by Article 212(1) of the

Constitution. That gives enough room to the Legislature to

adopt its own procedure for upholding the privileges of the

House of Legislature and its members which includes

proceeding against even non­member in case of breach.

Thus, it is not open to even remotely suggest that the

Legislature lacks jurisdiction.

19.(b) He submits that the fact that Rule 53 of the Rules

provides for exercise of power by the Speaker to order

withdrawal of member in graded manner, that does not and

cannot prevent the House from passing a resolution to even

expel the erring member. Thus, the House can certainly

direct suspension of its member for a period beyond the

remainder term of the Session. The Legislature while

adopting such resolution is not required to give any reason.

For, no judicial review of reasons which had weighed with the 27

Legislature to pass the resolution is permissible, unless it is

further shown that the resolution adopted by the House is

unconstitutional. In the present case, the House had adopted

resolution which is self­eloquent. In that, it mentions the

necessity for passing such a resolution of suspension of the

petitioners for a term of one year. The power has been

exercised by the Legislature, which is inherent in it especially

regarding the conduct of its business. The impugned

resolution, therefore, is not unconstitutional. He would

submit that in the guise of asserting that the impugned

resolution is irrational, the petitioners in effect are

questioning the proportionality of the period of suspension.

This enquiry by the Court is impermissible. For, the decision

of the House regarding quantum or the period of suspension

is non­justiciable

19.(c) He vehemently urged that this Court ought not to

venture into the factual matrix and have a second­guess

approach regarding the opinion expressed by the House in the

impugned resolution. To buttress his submissions, he has

placed reliance on the decision of the Gujarat High Court in 28

Jagdishbhai Thakore & Anr. vs. Chandrikaben

Chudasma & Ors.18, which follows the exposition of the

Division Bench of the same High Court in Chhabildas

Mehta, M.L.A. vs. The Legislative Assembly, Gujarat

State19. He has also placed reliance on K.A. Mathialagan

vs. P. Srinivasan & Ors.20, A.M. Paulraj vs. The Speaker,

Tamil Nadu Legislative Assembly, Madras & Anr.21, K.

Anbazhagan & Ors. vs. The Secretary, The Tamil Nadu

Legislative Assembly, Madras & Ors.22, V.C. Chandhira

Kumar, Member of Legislative Assembly & Ors. vs. Tamil

Nadu Legislative Assembly, Secretariat & Anr.23, Special

Reference No.1 of 196424, Kihota Hollohon vs. Zachilhu

& Ors.25, M.C. Mehta vs. Union of India & Ors.25A, Raja

Ram Pal26 and Amarinder Singh27.

18 2007 SCC OnLine Guj 402 (para 8): 2007 (48) 4 GLR 2998 (Single Judge Bench) 19 (1970) 11 GLR 729 (Division Bench) (paras 14 to 16) 20 AIR 1973 Madras 371 (Full Bench) 21 AIR 1986 Madras 248 (Full Bench) 22 1987 SCC OnLine Mad 89 (Division Bench) (paras 87 to 92, 101, 108 to 110 and 160) 23 2013 (6) CTC 506 (Division Bench) (paras 4.19 to 4.30) 24 supra at Footnote No.12 (paras 31,34,35 and 39 to 41) 25 AIR 1993 SC 412:1992 Supp (2) SCC 651 (5­Judge Bench) 25A (1999) 6 SCC 237 (paras 18 to 21) 26 supra at Footnote No.14 (paras 125, 160 to 162, 163, 271 to 300, 451 to 453, 530, 531, 534, 536, 598 and 696 to 705) 27 supra at Footnote No.15 (paras 54 and 66) 29

20. He would further submit that the Maharashtra

Legislative Assembly even in the past on more than one

occasion had passed similar resolution to suspend its

member for one year period. That is the legitimate inherent

power of the House in the matter of upholding its privilege.

Article 190(3) prescribes no limitation in this regard. Further,

the invocation of Article 190(4) and Section 151A of the 1951

Act by the petitioners, is completely misplaced. For, Article

190(4) has no application unless the absence of the member

concerned is voluntary and without permission of the House.

Article 190(4) cannot override the powers and privileges of the

Legislature endowed in Article 190(3). Article 190(4) is an

enabling provision envisaging occurrence of vacancy only if

the Legislature so resolves/decides, unlike ipso facto vacancy

occurring in situations referred to in Article 190(1) to 190(3).

For issuing declaration under Article 190(4) that vacancy has

arisen, it ought to be done by the Legislature if such

recommendation is made by the Committee constituted under

Rule 229 of the Rules known as Committee on Absence of

Members from the Sittings of the House. The functions of the 30

stated Committee are spelt out in Rule 230. The procedure

noted in Rules 231 and 232 is clearly indicative of the fact

that the absence of the member must be voluntary and

without permission of the House. In fact, the period of

absence noted in Article 190(4) is sixty days 28 of meetings and

not English calendar days. In this case, only seven days of

meetings had been conducted so far. Thus, invocation of

Article 190(4) in the fact situation of the present case is

unavailable. Further, in the case of absence of member from

the House owing to his/her suspension by the House

presupposes that the House itself has restricted the entry of

the concerned member during the meetings and it can be

safely regarded as deemed permission of the House for

absence for the relevant period. Similarly, the constituency

cannot complain about its non­representation in the House

having elected someone who conducts himself/herself

inappropriately in the meetings. In Raja Ram Pal29, similar

plea had been negatived. Concededly, suspended elected

representative continues to represent the constituency from 28 Out of total 98­100 days in a year in three Sessions, namely, Budget, Monsoon and Winter altogether.

29 supra at Footnote No.14 31

where he/she has been elected for all other purposes except

attending the meetings owing to suspension. The argument

of the petitioners is more fixed on the basis of morality

approach. That cannot be countenanced. As a matter of law,

the House has inherent powers to direct suspension of its

member for one year period and there is no express bar or

restriction provided for by the Constitution or by virtue of any

statutory provision. In substance, it is urged that the Court

cannot enquire into the grievances as made, essentially being

about the irregularity of procedure in adopting the impugned

resolution by the House.

21. We have heard learned counsel for the petitioners and

the respondent­State. As aforesaid, respondent No.1 has

chosen not to appear despite service.

Consideration:

22. The moot question is about the maintainability of the

challenge in respect of the stated resolution adopted by the

Legislative Assembly. The scope of interference by the Court

has been well­delineated in successive decisions of the 32

Constitution Bench of this Court. This Court has consistently

expounded that the judicial scrutiny regarding exercise of

legislative privileges (including power to punish for contempt

of the House) is constricted and cannot be stricto sensu on the

touchstone of judicial review as generally understood in other

situations. In that, there is complete immunity from judicial

review in matters of irregularity of procedure. The

Constitution Bench of this Court in Raja Ram Pal30

delineated the principles on the basis of catena of decisions

noted in the said decision as follows:

“Summary of the principles relating to parameters of judicial review in relation to exercise of parliamentary provisions

431. We may summarise the principles that can be culled out from the above discussion. They are:

(a) Parliament is a coordinate organ and its views do deserve deference even while its acts are amenable to judicial scrutiny;

(b) The constitutional system of government abhors absolutism and it being the cardinal principle of our Constitution that no one, howsoever lofty, can claim to be the sole judge of the power given under the Constitution, mere coordinate constitutional status, or even the status of an exalted constitutional functionaries, does not disentitle this Court from exercising its jurisdiction of judicial review of actions which partake the character of judicial or quasi­ judicial decision;

30 supra at Footnote No.14 33

(c) The expediency and necessity of exercise of power or privilege by the legislature are for the determination of the legislative authority and not for determination by the courts;

(d) The judicial review of the manner of exercise of power of contempt or privilege does not mean the said jurisdiction is being usurped by the judicature;

(e) Having regard to the importance of the functions discharged by the legislature under the Constitution and the majesty and grandeur of its task, there would always be an initial presumption that the powers, privileges, etc. have been regularly and reasonably exercised, not violating the law or the constitutional provisions, this presumption being a rebuttable one;

(f) The fact that Parliament is an august body of coordinate constitutional position does not mean that there can be no judicially manageable standards to review exercise of its power;

(g) While the area of powers, privileges and immunities of the legislature being exceptional and extraordinary its acts, particularly relating to exercise thereof, ought not to be tested on the traditional parameters of judicial review in the same manner as an ordinary administrative action would be tested, and the Court would confine itself to the acknowledged parameters of judicial review and within the judicially discoverable and manageable standards, there is no foundation to the plea that a legislative body cannot be attributed jurisdictional error;

(h) The judicature is not prevented from scrutinising the validity of the action of the legislature trespassing on the fundamental rights conferred on the citizens;

(i) The broad contention that the exercise of privileges by legislatures cannot be decided against the touchstone of fundamental rights or the constitutional provisions is not correct;

34

(j) If a citizen, whether a non­Member or a Member of the legislature, complains that his fundamental rights under Article 20 or 21 had been contravened, it is the duty of this Court to examine the merits of the said contention, especially when the impugned action entails civil consequences;

(k) There is no basis to the claim of bar of exclusive cognizance or absolute immunity to the parliamentary proceedings in Article 105(3) of the Constitution;

(l) The manner of enforcement of privilege by the legislature can result in judicial scrutiny, though subject to the restrictions contained in the other constitutional provisions, for example Article 122 or 212;

(m) Article 122(1) and Article 212(1) displace the broad doctrine of exclusive cognizance of the legislature in England of exclusive cognizance of internal proceedings of the House rendering irrelevant the case­ law that emanated from courts in that jurisdiction; inasmuch as the same has no application to the system of governance provided by the Constitution of India;

(n) Article 122(1) and Article 212(1) prohibit the validity of any proceedings in legislature from being called in question in a court merely on the ground of irregularity of procedure;

(o) The truth or correctness of the material will not be questioned by the court nor will it go into the adequacy of the material or substitute its opinion for that of the legislature;

(p) Ordinarily, the legislature, as a body, cannot be accused of having acted for an extraneous purpose or being actuated by caprice or mala fide intention, and the court will not lightly presume abuse or misuse, giving allowance for the fact that the legislature is the best judge of such matters, but if in a given case, the allegations to such effect are made, the court may 35

examine the validity of the said contention, the onus on the person alleging being extremely heavy;

(q) The rules which the legislature has to make for regulating its procedure and the conduct of its business have to be subject to the provisions of the Constitution;

(r) Mere availability of the Rules of Procedure and Conduct of Business, as made by the legislature in exercise of enabling powers under the Constitution, is never a guarantee that they have been duly followed;

(s) The proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny;

(t) Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action;

(u) An ouster clause attaching finality to a determination does ordinarily oust the power of the court to review the decision but not on grounds of lack of jurisdiction or it being a nullity for some reason such as gross illegality, irrationality, violation of constitutional mandate, mala fides, non­compliance with rules of natural justice and perversity.” (emphasis supplied)

23. These principles have been restated by the subsequent

Constitution Bench in Amarinder Singh31, in paragraphs 53

and 54. Further, it would be useful to advert to the

observations in paragraphs 87 and 88 of the same decision in

31 supra at Footnote No.15 36

the context of the concerns about the intrusion into the

powers of the Legislature. The same reads thus:

“Concerns about intrusion into the executive and judicial domain

87. The doctrine of separation of powers is an inseparable part of the evolution of parliamentary democracy itself. Renowned French philosopher Montesquieu had drawn the attention of political theorists to the dangers inherent in the concentration of legislative, executive and judicial powers in one authority and stressed on the necessity of checks and balances in constitutional governance. Our institutions of governance have been intentionally founded on the principle of separation of powers and the Constitution does not give unfettered power to any organ. All the three principal organs are expected to work in harmony and in consonance with the spirit and essence of the Constitution. It is clear that a legislative body is not entrusted with the power of adjudicating a case once an appropriate forum is in existence under the constitutional scheme.

88. It would be pertinent to cite the following observations made by M.H. Beg, J. (as His Lordship then was) in Indira Nehru Gandhi v. Raj Narain32: (SCC p. 149, para 392) “392. … One of these basic principles seems to me to be that, just as courts are not constitutionally competent to legislate under the guise of interpretation, so also neither our Parliament nor any State Legislature, in the purported exercise of any kind of law­making power, perform an essentially judicial function by virtually withdrawing a particular case, pending in any court, and taking upon itself the duty to decide it by an application of law or its own standards to the facts of that case. This power must at least be first constitutionally taken away from the court concerned and vested in another authority before it

32 1975 Supp SCC 1 37

can be lawfully exercised by that other authority. It is not a necessary or even a natural incident of a ‘constituent power’. As Hans Kelsen points out, in his ‘General Theory of Law and the State’ (see p. 143), while creation and annulment of all general norms, whether basic or not so basic, is essentially a legislative function, their interpretation and application to findings reached, after a correct ascertainment of facts involved in an individual case, by employing the judicial technique, is really a judicial function. Neither of the three constitutionally separate organs of State can, according to the basic scheme of our Constitution today, leap outside the boundaries of its own constitutionally assigned sphere or orbit of authority into that of the other. This is the logical meaning of the principle of supremacy of the Constitution.”” (emphasis supplied)

24. To the same end, dictum of the Constitution Bench in

Sub­Committee on Judicial Accountability vs. Union of

India & Ors.33 may be apposite. In paragraph 61 of the

reported decision, the Court observed thus:

“61. But where, as in this country and unlike in England, there is a written Constitution which constitutes the fundamental and in that sense a “higher law” and acts as a limitation upon the legislature and other organs of the State as grantees under the Constitution, the usual incidents of parliamentary sovereignty do not obtain and the concept is one of ‘limited government’. Judicial review is, indeed, an incident of and flows from this concept of the fundamental and the higher law being the touchstone of the limits of the powers of the various organs of the State which derive power and authority under the Constitution and that the judicial wing is the

33 (1991) 4 SCC 699 (5­Judge Bench) 38

interpreter of the Constitution and, therefore, of the limits of authority of the different organs of the State. It is to be noted that the British Parliament with the Crown is supreme and its powers are unlimited and courts have no power of judicial review of legislation.” (emphasis supplied)

The Court then noted that this doctrine is in one sense the doctrine

of ultra vires in the constitutional law and in a federal set up, the

judiciary becomes the guardian of the Constitution. It enunciated

that the rule in Bradlaugh vs. Gossett34 was inapplicable to

proceedings of colonial legislature governed by the written

Constitution. In paragraph 66, the Court expounded as follows:

“66. The principles in Bradlaugh35 is that even a statutory right if it related to the sphere where Parliament and not the courts had exclusive jurisdiction would be a matter of the Parliament's own concern. But the principle cannot be extended where the matter is not merely one of procedure but of substantive law concerning matters beyond the parliamentary procedure. Even in matters of procedure the constitutional provisions are binding as the legislations are enforceable. Of the interpretation of the Constitution and as to what law is the courts have the constitutional duty to say what the law is. The question whether the motion has lapsed is a matter to be pronounced upon the basis of the provisions of the Constitution and the relevant laws. Indeed, the learned Attorney General submitted that the question whether as an interpretation of the constitutional processes and laws, such a motion lapses or not is exclusively for the courts to decide.” (emphasis supplied)

34 (1884) 12 QBD 271: 50 LT 620 35 supra at Footnote No.34 39

25. In the Indian context, the power of the Legislature is not

absolute, as noted by the Constitution Bench in Raja Ram

Pal36 in paragraph 398. The same reads thus:

“398. We are of the view that the manner of exercise of the power or privilege by Parliament is immune from judicial scrutiny only to the extent indicated in Article 122(1), that is to say the court will decline to interfere if the grievance brought before it is restricted to allegations of “irregularity of procedure”. But in case gross illegality or violation of constitutional provisions is shown, the judicial review will not be inhibited in any manner by Article 122, or for that matter by Article

105. If one was to accept what was alleged while rescinding the resolution of expulsion by the Seventh Lok Sabha with the conclusion that it was “inconsistent with and violative of the well­accepted principles of the law of parliamentary privilege and the basic safeguards assured to all enshrined in the Constitution”, it would be a partisan action in the name of exercise of privilege. We are not going into this issue but citing the incident as an illustration.”

(emphasis supplied)

After having said as above, the Court proceeded to examine the

extent of circumspection to be observed by the courts. That had

been exposited in following words:

“414. In State of Rajasthan v. Union of India37 while dealing with the issues arising out of communication by the then Union Home Minister to the nine States asking them to advise their respective Governors to observe the

36 supra at Footnote No.14 37 (1977) 3 SCC 592 : AIR 1977 SC 1361 40

Legislative Assemblies and therefore seek mandate from the people, this Court observed in para 40 as under:

(SCC p. 616) “40. This Court has never abandoned its constitutional function as the final judge of constitutionality of all acts purported to be done under the authority of the Constitution. It has not refused to determine questions either of fact or of law so long as it has found itself possessed of power to do it and the cause of justice to be capable of being vindicated by its actions. But, it cannot assume unto itself powers the Constitution lodges elsewhere or undertake tasks entrusted by the Constitution to other departments of State which may be better equipped to perform them. The scrupulously discharged duties of all guardians of the Constitution include the duty not to transgress the limitations of their own constitutionally circumscribed powers by trespassing into what is properly the domain of other constitutional organs. Questions of political wisdom or executive policy only could not be subjected to judicial control. No doubt executive policy must also be subordinated to constitutionally sanctioned purposes. It has its sphere and limitations. But, so long as it operates within that sphere, its operations are immune from judicial interference. This is also a part of the doctrine of a rough separation of powers under the supremacy of the Constitution repeatedly propounded by this Court and to which the Court unswervingly adheres even when its views differ or change on the correct interpretation of a particular constitutional provision.” (emphasis supplied)

415. We reaffirm the said resolve and find no reason why in the facts and circumstances at hand this Court should take a different view so as to abandon its constitutional functions as the final judge of constitutionality of all acts purported to be done under the authority of the Constitution, though at the same time refraining from transgressing into the sphere that is properly the domain of Parliament.

41 416. Learned Additional Solicitor General submits that in U.P. Assembly case (Special Reference No. 1 of 1964)38 the Court had placed reliance on Articles 208 and 212 which contemplate that rules can be framed by the legislature subject to the provisions of the Constitution which in turn implies that such rules are compliant with the fundamental rights guaranteed by Part III. He submits that if the rules framed under Article 118 (which corresponds to Article 208) are consistent with Part III of the Constitution then the exercise of powers, privileges and immunities is bound to be a fair exercise and Parliament can be safely attributed such an intention.

417. While it is true that there is no challenge to the Rules of Procedure and Conduct of Business in Lok Sabha and the Rules of Procedure and Conduct of Business in the Council of States, as made by the two Houses of Parliament in exercise of enabling powers under Article 118(1), we are of the opinion that mere availability of rules is never a guarantee that they have been duly followed. What we are concerned with, given the limits prescribed in Article 122(1), is not “irregularity of procedure” but illegalities or unconstitutionalities.”

(emphasis supplied in bolds)

26. From the exposition in these successive Constitution

Bench decisions referred to above, it is not possible to

countenance the submission of the learned counsel for the

respondent­State that the enquiry must be limited to one of

the parameters specified in Raja Ram Pal39 and, in this case,

only clause (s) – “The proceedings which may be tainted on

38 supra at Footnote No.12 39 supra at Footnote No.14 42

account of substantive or gross illegality or

unconstitutionality are not protected from judicial scrutiny”.

On the other hand, we lean in favour of taking the view that

each of the parameters is significant and permissible area of

judicial review in relation to exercise of parliamentary

privileges including clauses (f), (g), (s) and (u). In one sense,

clause (u) is a comprehensive parameter articulated by the

Constitution Bench in Raja Ram Pal40, as it predicates that

“an ouster clause attaching finality to a determination does

ordinarily oust the power of the court to review the decision

but not on grounds of lack of jurisdiction or it being a nullity

for some reason such as gross illegality, irrationality, violation

of constitutional mandate, mala fides, non­compliance with

rules of natural justice and perversity”.

27. The Constitution, by itself, does not specify the

limitation on the privileges of the Legislature, but,

indubitably, those privileges are subject to the provisions of

the Constitution (as is predicated in the opening part of

Article 194(1) as also in Article 208(1) requiring the House of

40 supra at Footnote No.14 43

the Legislature to make rules for regulating its procedure),

which ought to include the rights guaranteed to the citizens

under Part III of the Constitution. The moment it is

demonstrated that it is a case of infraction of any of the rights

under Para III of the Constitution including ascribable to

Articles 14 and 21 of the Constitution, the exercise of power

by the Legislature would be rendered unconstitutional. For

attracting Articles 14 and 21 of the Constitution, it is open to

the petitioner to demonstrate that the action of the

Legislature is manifestly arbitrary. The arbitrariness can be

attributed to different aspects. Applying that test, it could be

a case of irrationality of the resolution/decision of the House.

Indeed, in this case, the Court is not called upon to enquire

into the proportionality of such a resolution/decision.

28. There is marked distinction between the expression

“rational” and “proportional”. The expression “proportion” is

derived from a latin word “proportio” or “proportionalis”. It

means corresponding in size or amount to something else. To

wit, the punishment should be proportional to the crime —

whereas, expression “rational” is derived from a latin word 44

“ratio” or “rationalis”. It means action is based on or in

accordance with the reason or logic or so to say sensible or

logical. The rationality of action can be tested, both on the

ground of power inhering in the Legislature and the exercise

of that power.

29. Keeping the stated principles in mind, we must proceed

to analyse the grounds of challenge in these petitions. The

foremost ground is that it is imperative for the House to

adhere to the procedure prescribed in the Rules framed by the

House under Article 208 of the Constitution.

30. The Constitution Bench of this Court in M.S.M.

Sharma41 had occasion to deal with the efficacy of the rules

so framed under Article 208 of the Constitution. In

paragraph 2942, the Court noted that Article 194(3) read with

41 supra at Footnote No.11

42 (29) Seeing that the present proceedings have been initiated on a petition under Art. 32 of the Constitution and as the petitioner may not be entitled, for reasons stated above, to avail himself of Art. 19(1)(a) to support this application, learned advocate for the petitioner falls back upon Art. 21 and contends that the proceedings before the Committee of Privileges threaten to deprive him of personal liberty otherwise than in accordance with procedure established by law. The Legislative Assembly claims that under Art. 194(3) it has all the powers, privileges and immunities enjoyed by the British House of Commons at the commencement of our Constitution. If it has those powers, privileges and immunities, then it can certainly enforce the same, as the House of Commons can do. Article 194(3) confers on the Legislative Assembly those powers, privileges and immunities and Art. 208 confers power on it to frame rules. The Bihar Legislative Assembly has framed rules in exercise 45

rules framed under Article 208 had laid down the procedure

for enforcing its powers, privileges and immunities. Further,

the Legislative Assembly has the powers, privileges and

immunities of the House of Commons and if the petitioner is

deprived of his personal liberty as a result of the proceedings

before the Committee of Privileges, such deprivation will be in

accordance with procedure established by law and the

petitioner cannot complain of the breach, actual or

threatened, of his fundamental right under Article 21. This

dictum presupposes that action taken under the rules framed

under Article 208 of the Constitution and in conformity

therewith is compliance of the procedure established by law

for the purpose of Article 21 of the Constitution.

of its powers under that Article. It follows, therefore, that Art. 194(3) read with the rules so framed has laid down the procedure for enforcing its powers, privileges and immunities. If, therefore, the Legislative Assembly has the powers, privileges and immunities of the House of Commons and if the petitioner is eventually deprived of his personal liberty as a result of the proceedings before the Committee of Privileges, such deprivation will be in accordance with procedure established by law and the petitioner cannot complain of the breach, actual or threatened, of his Fundamental Right under Art. 21.

(emphasis supplied) 46

31. In Ratilal Bhanji Mithani vs. Asstt. Collector of

Customs, Bombay & Anr.43, the Constitution Bench restated

the aforenoted position in the following words:

“….. As explained in Pandit Sharma’s case44, these powers and the procedure prescribed by the rules has the sanction of enacted law and an order of committal for contempt of the Assembly is according to procedure established by law. Das, C.J., speaking for four learned Judges said at page 861: “Art. 194(3) confers on the Legislative Assembly those powers, privileges and immunities and Art. 208 confers power on it to frame rules. The Bihar Legislative Assembly has framed rules in exercise of its powers under that Article. It follows, therefore, that Art. 194(3) read with the rules so framed has laid down the procedure for enforcing its powers, privileges and immunities. If, therefore, the Legislative Assembly has the powers, privileges and immunities of the House of Commons and if the petitioner is eventually deprived of his personal liberty as a result of the proceedings before the Committee of Privileges, such deprivation will be in accordance with procedure established by law and the petitioner cannot complain of the breach, actual or threatened, of his fundamental right under Art. 21.” Subba Rao, J. in his minority judgment in that case and the Court in Special Reference No. 1 of 196445 did not say anything to the contrary on this point.”

(emphasis supplied)

32. It is settled law that even rules made to exercise the

powers and privileges of State Legislature constitute law

within the meaning of Article 13. This is exposited in Special

43 (1967) 3 SCR 926 (at p. 929) 44 supra at Footnote No.11 45 supra at Footnote No.12 47

Reference No.1 of 196446. It is held that when the State

Legislatures purport to exercise this power, they will

undoubtedly be acting under Article 246 read with Entry 39

of List II. The enactment of such a law will, therefore, have to

be treated as a law within the meaning of Article

13.

33. In the backdrop of these observations, the plea taken by

the State that the rules are neither statutory rules nor

binding on the House will be of no avail. Indeed, the

Constitution Bench of this Court in Sub­Committee on

Judicial Accountability47 in paragraph 94 noted as follows:

“94. Second view is to be preferred. It enables the entire process of removal being regulated by a law of Parliament — ensures uniformity and reduces chances of arbitrariness. Article 118 is a general provision conferring on each House of Parliament the power to make its own rules of procedure. These rules are not binding on the House and can be altered by the House at any time. A breach of such rules amounts to an irregularity and is not subject to judicial review in view of Article 122.” (emphasis supplied)

46 supra at Footnote No.12 47 supra at Footnote No.33 48

These observations have been noted while deliberating over the

legal question as to whether the law made by the Parliament in the

matter of removal of a judge of the High Court ought to prevail over

the Rules framed by the House under Article 118 (corresponding to

Article 208, applicable to State Legislative Assembly). This Court

held that the parliamentary law is of higher quality and efficacy

than the Rules under Article 118. This, however, had not whittled

down the legal exposition that the Rules framed by the Legislative

Assembly under Article 208 of the Constitution is the procedure

established by law for the purpose of Article 21 of the Constitution.

34. Be that as it may, it is well­settled that the rules so

framed can be altered by the House at any time. Until the

rules are altered, however, the House is ordinarily guided by

the procedure prescribed in the rules framed under Article

208 of the Constitution. At the same time, proceedings inside

the Legislature cannot be called into question on the ground

that the same have not been carried on in accordance with

the rules of business as restated in Kihota Hollohon48. It is,

however, enough for the present to observe that the rules

48 supra at Footnote No.25 (para 42) 49

framed under Article 208 acquire the status of procedure

established by law for the purpose of Article 21 of the

Constitution as noticed in M.S.M. Sharma49. This

observation has been quoted with approval by another

Constitution Bench again in Raja Ram Pal50, inter alia, in

paragraphs 53, 167, 338, 416 and 417.

35. Viewed thus, even though the Legislature has the

prerogative to deviate from the rules including to alter the

rules; until then, and even otherwise, it is expected to adhere

to the “express substantive stipulation” (which is not mere

procedure) in the rules framed under Article 208 of the

Constitution and the principle underlying therein, being

procedure established by law.

36. As aforesaid, the dispensation prescribed under the

Rules to exercise power to order withdrawal of member

(suspension) is ascribable to Rule 53 of the Rules which reads

thus:

“53. Power to order withdrawal of member.— The Speaker may direct any member who refuses to obey his

49 supra at Footnote No.11 50 supra at Footnote No.14 50

decision, or whose conduct is, in his opinion, grossly disorderly, to withdraw immediately from the Assembly and any member so ordered to withdraw shall do so forthwith and shall absent himself during the remainder of the day’s meeting. If any member is ordered to withdraw a second time in the same Session, the Speaker may direct the member to absent himself from the meetings of the Assembly for any period not longer than the remainder of the Session, and the member so directed shall absent himself accordingly. The 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.” (emphasis supplied)

This Rule not only speaks about the procedure to be adopted for

passing the drastic order of withdrawal of a member from the

House but also about the substantive disciplinary or the rationality

of the self­security measure to be taken in a graded (objective

standard) manner. The non­compliance of or deviation from the

former (procedure) may be non­justiciable. However, in regard to

the substantive disciplinary or the rationality of the self­security

measure inflicted upon the erring member, is open to judicial

review on the touchstone of being unconstitutional, grossly illegal

and irrational or arbitrary.

37. In terms of above Rule, the power is exercised by the

Speaker being a quasi­judicial order directing the member to 51

withdraw from the meetings of the Assembly. The Speaker is

expected to exercise this power only in case of conduct of the

member being “grossly disorderly” and in a graded objective

manner. The raison d’etre is to ensure that the business of

the House on the given day or the ongoing Session, as the

case may be, can be carried on in an orderly manner and

without any disruption owing to misconduct of one or more

members. The expression used in the stated Rule is “grossly

disorderly”.

38. The expression “grossly disorderly” has not been defined

in the Rules. The meaning of expression “gross” as given in

the Black’s Law Dictionary51 reads thus:

“gross, adj. (14c) 1. Conspicuous by reason of size or other attention­getting qualities; esp., obvious by reason of magnitude <a gross Corinthian column>. 2. Undiminished by deduction; entire <gross profits>. 3. Not specific or detailed; general <a gross estimate>. 4. Coarse in meaning or sense <gross slang>. 5. Repulsive in behavior or appearance; sickening <a gross fellow with gross habits>. 6. Beyond all reasonable measure; flagrant <a gross injustice>.”

“Grossly”, is an adverb and indicative of relatively higher degree of

misconduct or so to say extremely wrong and deviant.

51 11th Edition 52

39. The expression “disorder” as defined in Black’s Law

Dictionary52 is as follows:

“disorder. (1877) 1. A lack of proper arrangement <disorder of the files>. 2. An irregularity <a disorder in the proceedings>. 3. A public disturbance; a riot. See CIVIL DISORDER. 4. A disturbance in mental or physical health <an emotional disorder> <a liver disorder>.”

The expression “disorderly” as defined in Black’s Law Dictionary 53

is as follows:

“Disorderly. Contrary to the rules of good order and behavior; violative of the public peace or good order; turbulent, riotous, or indecent.”

In the Concise Oxford Dictionary54, the expression “disorderly” has

been defined thus:

“disorderly adj. 1 untidy; confused. 2 irregular; unruly; riotous. 3 Law contrary to public order or morality.”

The expression “disorderly conduct” as defined in Black’s Law

Dictionary55 is as follows:

“disorderly conduct. See CONDUCT Conduct, n. (15c) Personal behavior, whether by action or inaction, verbal or nonverbal; the manner in which a person behaves; collectively, a person’s deeds.  Conduct does not include the actor’s natural death or a death that

52 11th Edition 53 6th Edition 54 8th Edition 55 11th Edition 53

results from behavior consciously engaged in but not reasonably expected to have this result. — conduct, vb.”

40. Taking the totality of the meaning of expressions

“grossly” and “disorderly”, it must follow that the conduct of

the member is such that it was impeding the smooth or

orderly functioning of the House, and may also be of such a

nature that it is likely to bring disrepute to the House. It may

involve varied situations and, therefore, implied exercise of

rational corrective mechanism is quintessential. The action of

suspension or directing withdrawal of a member from the

meetings of the Assembly is in the nature of self­security and

is essentially directed to ensure that the House can then

protect itself against obstruction, or disturbance of its

ongoing proceedings owing to the misconduct of any of its

members. That power is different from the privilege to inflict

punishment on a member, which may require higher degree

of deprivation of the member over and above participating in

the proceedings of the House during the Session. In a given

case, it can be in the form of expulsion being the highest

degree of exclusion of the member from the House. Yet 54

another would be penal, in case of ordering imprisonment

owing to act of contempt of the House. We shall elaborate on

this aspect a little later while dealing with the challenge on

the ground of impugned resolution being grossly irrational.

41. Suffice it to observe that Rule 53 of the Rules provides

for a graded (rational and objective standard) approach to be

adopted by the Speaker for ensuring orderly conduct of the

business of the House. In the present case, however, the

Minister for Parliamentary Affairs introduced a motion in the

House for initiating action for contempt of the House, which

the Chairman allowed it to be put to vote instantly at 14:40

hours on the same day and it was passed by the House by

majority in no time. Indeed, if it is a case of grossly disorderly

behaviour in the House, the Speaker/Chairman himself is

free to take instantaneous decision to order withdrawal of the

member from the meetings of the Assembly during the

remainder of the day’s meeting and if it is a case of repeat

misconduct in the same Session — for the remainder of the

Session.

55

42. Concededly, there is nothing in the constitutional

scheme or the rules framed under Article 208 to prevent a

member of the House to move a motion for directing

withdrawal of a member on the ground of his grossly

disorderly conduct. Further, if the Speaker can suo motu

direct the member to withdraw from the Assembly on the

same day instantly to secure smooth functioning of the

proceedings, for the same logic, even the House could pass a

resolution itself on a motion being moved by a member of the

House instantly with the concurrence of the Speaker on such

a motion.

43. In the present case, the Chairman entertained the

subject motion and called upon the House to vote thereon,

which had the effect of giving tacit consent if not explicit

concurrence to the same. In that sense, it is not a case of

resolution passed by the House (to suspend its members) as

being without jurisdiction. It is a different matter that if the

Speaker/Chairman was to do so, it could be only under Rule

53 in a graded manner for the remainder of the day and for

repeat misconduct in the same Session — for the remainder 56

of the Session. That would be a logical and rational approach

consistent with the constitutional tenets.

44. If the House takes upon itself to discipline its members,

it is expected to adopt the same graded (rational and objective

standard) approach on the lines predicated in Rule 53. That

would be a case of rational action taken by the House as per

the procedure established by law. The expression “rational” is

defined in Black’s Law Dictionary56 as follows:

“rational, adj. (14c) 1. Endowed with the faculties of cognition traditionally thought to distinguish humans from the brutes <man as a rational being>. 2. Based on logic rather than emotion; attained through clear thinking; not absurd, preposterous, foolish, or fanciful <a rational conclusion>. 3. (Of a person) able to think clearly and sensibly; clear­headed and right­minded <Jones was rational at the time of the woman’s death>.”

As opposed to a rational decision, it would be a case of irrational or

preposterous approach. The expression “irrational” as defined in

Black’s Law Dictionary57 is as follows:

“irrational, adj. (16c) Not guided by reason or by a fair consideration of the facts <an irrational ruling>. See ARBITRARY.

arbitrary, adj. (15c) 1. Depending on individual discretion; of, relating to, or involving a determination made without consideration of or regard for facts, circumstances, fixed rules, or procedures. 2. (Of a

56 11th Edition 57 11th Edition 57

judicial decision) founded on prejudice or preference rather than on reason or fact.

 This type of decision is often termed arbitrary and capricious. Cf. CAPRICIOUS. — arbitrariness, n.”

45. A priori, if the resolution passed by the House was to

provide for suspension beyond the period prescribed under

the stated Rule, it would be substantively illegal, irrational

and unconstitutional. In that, the graded (rational and

objective standard) approach predicated in Rule 53 is the

benchmark to be observed by the Speaker to enable him to

ensure smooth working of the House, without any obstruction

or impediment and for keeping the recalcitrant member away

from the House for a period maximum upto the remainder of

the entire Session.

46. Inflicting suspension for a period “beyond the period

necessary” than to ensure smooth working/functioning of the

House during the Session “by itself”; and also, as per the

underlying objective standard specified in Rule 53,

indubitably, suffer from the vice of being grossly irrational

measure adopted against the erring member and also

substantively illegal and unconstitutional. 58

47. It is a different matter if the House had ended up with

resolution of expulsion of the member, which power in a given

situation it could legitimately exercise, as held in Raja Ram

Pal58. That action would not visit the member with

disqualification and also allow him to get re­elected from the

same constituency within the statutory period of six months

from the date of vacation of his seat. However, if it is a case

of suspension for a period beyond the remainder of the

Session, it would entail in unnecessary (unessential)

deprivation. And longer or excessive deprival would not only

be regarded as irrational, but closer to or bordering on

perversity. Resultantly, such an action would be violative of

procedure established by law and also manifestly arbitrary,

grossly irrational and illegal and violative of Articles 14 and

21 of the Constitution.

48. Be it noted that suspension beyond the remainder

period of the ongoing Session would not only be grossly

irrational measure, but also violative of basic democratic

values owing to unessential deprivation of the member

58 supra at Footnote No.14 59

concerned and more importantly, the constituency would

remain unrepresented in the Assembly. It would also impact

the democratic setup as a whole by permitting the thin

majority Government (coalition Government) of the day to

manipulate the numbers of the Opposition Party in the House

in an undemocratic manner. Not only that, the Opposition

will not be able to effectively participate in the

discussion/debate in the House owing to the constant fear of

its members being suspended for longer period. There would

be no purposeful or meaningful debates but one in terrorem

and as per the whims of the majority. That would not be

healthy for the democracy as a whole.

49. It is well­established that fundamental rights are

guaranteed by Part III of the Constitution, out of which

Articles 14, 19 and 21 are the most frequently invoked to test

the validity of the executive as well as legislative actions when

these actions are subjected to judicial scrutiny. Different

Articles in the Constitution under chapter Fundamental

Rights and the Directive Principles in Part IV ought to be read

as an integral and incorporeal whole with possible 60

overlapping with the subject matter of what is to be protected

by its various provisions particularly the fundamental rights.

The sweep of Article 21 is expansive enough to govern the

action of dismembering a member from the House of the

Legislative Assembly in the form of expulsion or be it a case of

suspension by directing withdrawal from the meeting of the

Assembly for the remainder of the Session.

50. Be that as it may, it is evident from the impugned

resolution that it has been passed by the majority votes in the

House immediately after it was put to vote by the Chairman.

It was in fact introduced as a motion for initiating action for

having committed contempt of the House which ordinarily

ought to have proceeded under Part XVIII of the Rules dealing

with Privileges. That would have required constitution of a

Committee of Privileges to enquire into the entire matter by

giving opportunity of hearing to the persons concerned.

Instead of adopting that procedure, the House itself chose to

direct withdrawal of the petitioners from the meetings of the

Assembly for a period of one year — which direction is neither 61

ascribable to the dispensation prescribed in Part XVIII of the

Rules or Rule 53 enabling the Speaker to do so.

51. As aforementioned, it is not a case of procedural

irregularity as such. Whereas, the decision taken by the

House in this case, is one of substantive illegality in directing

suspension beyond the period of remainder of the Session in

which the motion was presented. We say so because, the

period of suspension in excess of the period essential to do so

much less in a graded manner including on principle

underlying Rule 53, would be antithesis to rational or

objective standard approach for ensuring orderly functioning

of the House during the ongoing Session.

52. Reverting to the challenge to the impugned resolution

being grossly irrational. As noticed earlier, Rule 53 provides

for a graded (rational and objective standard) approach. The

timeline as specified in Rule 53 is with a view to address the

immediate concern of the House for ensuring orderly conduct

of the business of the House in the given Session. This action

is implied on the doctrine of necessity. The Speaker and for 62

that matter, even the House as a whole or by majority, would

be within its power to resort to such a mechanism being

rational measure. Exceeding the stated timeline is a

substantive matter and not a procedural irregularity. It

would raise a basic question as to what purpose would be

served by withdrawing the member from the House for

successive Sessions falling within that period of one year.

Indeed, if the conduct of the member is gross warranting his

removal from the Assembly even beyond the period of sixty

days [Article 190(4)] or six months (Section 151A of the 1951

Act), the House is capable of invoking its inherent power of

expulsion of such a member, which is a greater power.

53. Indubitably, suspension for a day or for the remainder of

the Session, would be of a lesser degree of exercise of that

power. However, it is not open to contend that the higher

degree of power would include power to suspend the member

beyond the period essential to keep him/her away from the

Assembly for ensuring orderly conduct of the business of the

House. As expounded in Amarinder Singh59, the important

59 supra at Footnote No.15 (paras 47 and 66) 63

consideration for scrutinising the exercise of legislative

privileges is whether the same is necessary to safeguard the

integrity of the legislative functions. This Court had

recognised that the Legislature’s power to punish for its

contempt was not untrammelled. That power of legislative

chamber to punish for its own contempt must coincide with

the Legislature’s interest in protecting the integrity of its

function. In other words, the suspension of a member must

be preferred as a short­term or a temporary measure for

restoring order in the functioning of the concerned Assembly

Session for completing its scheduled business within time

and by way of disciplinary measure against the incorrigible

member(s).

54. The word “suspension” is necessarily linked to

attendance of the member in the House. Thus, the

suspension may be resorted to merely for ensuring orderly

conduct of the business of the House during the concerned

Session. Anything in excess of that would be irrational

suspension. This is so because the member represents the

constituency from where he has been duly elected and longer 64

suspension would entail in deprivation of the constituency to

be represented in the House. It is true that right to vote and

be represented is integral to our democratic process and it is

not an absolute right. Indeed, the constituency cannot have

any right to be represented by a disqualified or expelled

member. However, their representative cannot be kept away

from the House in the guise of suspension beyond the

necessary (rational) period linked to the ongoing Assembly

Session, including the timeline referred to in Article 190(4) of

the Constitution and Section 151A of the 1951 Act.

55. Be that as it may, suspension is essentially a

disciplinary measure. It must follow that suspension for a

period of one year would assume the character of punitive

and punishment worse than expulsion. For, suspension for

long period and beyond the Session has the effect of creating

a de facto vacancy though not a de jure vacancy. The

argument of the State that despite suspension from the

House, the members would continue to discharge all other

functions outside the House as an elected representative.

This plea, in our view, is tenuous. For, the effect of such 65

suspension is visited not only on the constituency that goes

unrepresented for potentially long and unessential time, but

also on the functioning of the Assembly itself. Apart from a

role in bringing to light the special needs or difficulties of the

constituency, a member also plays a role in various motions,

debates, votes, etc.60. In any case, this plea cannot whittle

down the logic requiring limited action essential for orderly

functioning of the House on the given day or at best, the

Session for completion of its scheduled business for the

relevant Session.

56. Suffice it to observe that one­year suspension is worse

than “expulsion”, “disqualification” or “resignation” — insofar

as the right of the constituency to be represented before the

House/Assembly is concerned. In that, long suspension is

60 Some of the functions of the elected representative in the House/Assembly (taken from the Maharashtra Legislative Assembly Rules) would indicate that the member would not be able to take part in following matters, if suspended:

(a) Moving of a motion which requires decision by the Assembly, including by Division (Rules 23, 40, 41); (b) Taking part in a debate on a motion including speeches (Rules 33,34);

(c) Asking Questions on Statements made by Ministers (Rule 47); (d) Making of personal explanations (Rule 48); (e) Questions on matters of public concern from Ministers (Rule 68);

(f) Short Notice questions for immediate reply on questions of urgent nature (Rule 86); (g) Private member bills (Rule 111); (h) Discussions on matters of sufficient public importance (Rule 94); (i) No confidence motions ( Rule 95); (j) Adjournment motions (Rule 97); (k) Participation as members of Committees, including the Committee for consideration of matters of public importance, Business Advisory Committee, Public Accounts Committee, Committee on Estimates, etc (Part XV of the Rules).

66 bound to affect the rights harsher than expulsion wherein a

mid­term election is held within the specified time in terms of

Section 151A of the 1951 Act, not later than six months.

Thus, the impugned resolution is unreasonable, irrational,

and arbitrary and liable to be set aside.

57. Having said this, we may now turn to two decisions of

the Privy Council referred to and discussed by the

Constitution Bench in Raja Ram Pal61, in paragraphs 284 to

293. The same reads thus:

“284. Finally, in Barton62 it involved the suspension of a Member from the Legislative Assembly of New South Wales. The power of suspension for an indefinite time was held to be unavailable to the Legislative Assembly as it was said to have trespassed into the punitive field. The judgment was delivered by the Earl of Selborne. Referring to Kielley63 and Doyle64 the Court observed:

“It results from those authorities that no powers of that kind are incident to or inherent in a Colonial Legislative Assembly (without express grant), except ‘such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute’.

Powers to suspend toties quoties, sitting after sitting, in case of repeated offences (and, if may be, till submission or apology), and also to expel for aggravated or persistent misconduct, appear to be sufficient to meet even the extreme case of a Member whose conduct is habitually obstructive or disorderly.

61 supra at Footnote No.14 62 supra at Footnote No.9 63 Edward Kielley vs. William Carson, (1842) 4 Moore PC 63 : 13 ER 225 64 Thomas William Doyle vs. George Charles Falconer, (1865­67) LR 1 PC 328 : 36 LJPC 33 : 15 WR 366 67

To argue that expulsion is the greater power, and suspension the less, and that the greater must include all degrees of the less, seems to their Lordships fallacious. The rights of constituents ought not, in a question of this kind, to be left out of sight. Those rights would be much more seriously interfered with by an unnecessarily prolonged suspension than by expulsion, after which a new election would immediately be held.” (emphasis supplied)

285. The Court went on to examine what is necessary and found that an indefinite suspension could never be considered necessary.

286. The learned counsel for the petitioners have relied on the above distinction and submitted that the limited power does not envisage expulsion and can only be used for ex facie contempts.

287. We are not persuaded to subscribe to the propositions advanced on behalf of the petitioners. Even if we were to accept this distinction as applicable to the Indian Parliament, in our opinion, the power to expel would be available.

288. Firstly, Barton65 which allows only a limited power to punish for contempt, finds that even though the Legislative Assembly does not have the power to indefinitely suspend, as that was punitive in nature, the Assembly would have the power to expel, considering expulsion a non­punitive power. Secondly, the objection that the limited power could only deal with ex facie contempt, is not tenable.

289. In the above context, reference may be made to Harnett v. Crick66. This case involved the suspension of a Member of the Legislative Assembly of New South Wales until the verdict of the jury in the pending criminal trial against the Member had been delivered. The

65 supra at Footnote No.9 66 Lawrence Joseph Harnett vs. William Patrick Crick, 1908 AC 470 : 78 LJPC 38 : 99 LT 601 (PC) 68

suspension was challenged. When the matter came up before the Privy Council, the respondents argued that:

“The Legislative Assembly had no inherent power to pass [the Standing Order]. Its inherent powers were limited to protective and defensive measures necessary for the proper exercise of its functions and the conduct of its business. They did not extend to punitive measures in the absence of express statutory power in that behalf, but only to protective measures. … The fact that a criminal charge is pending against the respondent does not affect or obstruct the course of business in the Chamber or relate to its orderly conduct.”

290. This argument was rejected and the House of Lords allowed the appeal. Lord MacNaghten, delivering the judgment, initially observed that:

“… no one would probably contend that the orderly conduct of the Assembly would be disturbed or affected by the mere fact that a criminal charge is pending against a Member of the House.” (475)

291. But he found that certain peculiar circumstances of the case deserved to be given weight. The Court went on to hold thus:

“If the House itself has taken the less favourable view of the plaintiff's attitude [an insult and challenge to the House], and has judged that the occasion justified temporary suspension, not by way of punishment, but in self­defence, it seems impossible for the Court to declare that the House was so wrong in its judgment, and the Standing Order and the resolution founded upon it so foreign to the purpose contemplated by the Act, that the proceedings must be declared invalid.”(476) (emphasis supplied)

292. The above case thus establishes that even if the House of legislature has limited powers, such power is not only restricted to ex facie contempts, but even acts committed outside the House. It is open to the Assembly to use its power for “protective” purposes, and the acts that it can act upon are not only those that are committed in the House, but upon anything 69

that lowers the dignity of the House. Thus, the petitioners' submission that House only has the power to remove obstructions during its proceedings cannot be accepted.

293. It is axiomatic to state that expulsion is always in respect of a Member. At the same time, it needs to be borne in mind that a Member is part of the House due to which his or her conduct always has a direct bearing upon the perception of the House. Any legislative body must act through its Members and the connection between the conduct of the Members and the perception of the House is strong. We, therefore, conclude that even if Parliament had only the limited remedial power to punish for contempt, the power to expel would be well within the limits of such remedial contempt power.”

(emphasis supplied in bolds)

The two decisions of the Privy Council (Barton67 and Lawrence

Joseph Harnett68) were pressed into service in that case to answer

the plea that the Legislature has inherent limited remedial power to

punish for contempt by way of suspension of its member and

cannot resort to expulsion of the member. The Constitution Bench

noticed that even these two decisions of the Privy Council,

recognised inherent power of the Legislature to expel its member

and, thus, negatived the plea of the petitioner in that regard. This

Court after analysing the said decisions concluded that the

Legislatures established in India by the Constitution, including

67 supra at Footnote No.9 68 supra at Footnote No.66 70

Parliament under Article 105(3), need not be denied the claim to

the power of expulsion arising out of remedial power of contempt.

58. What emerges from the stated conclusion is that the

Constitution Bench declared that the inherent power of the

Legislature is not absolute, but limited remedial power to

punish for contempt and to take such measures as are

necessary for orderly functioning of the proceedings of the

House.

59. The case of Barton69 has been noticed in paragraph

284, which in turn had dealt with suspension of the member

from the Legislative Assembly of the New South Wales. In

that case, the resolution passed by the House did not mention

about the time frame of suspension of the member. That was

challenged by the aggrieved member being irrational and

unnecessary. That plea was considered by the Privy Council

keeping in mind its earlier decisions in Edward Kielley70 and

Thomas William Doyle71. (These decisions have been

adverted to in paragraph 283 by the Constitution Bench as

69 supra at Footnote No.9 70 supra at Footnote No.63 71 supra at Footnote No.64 71

well). After noticing these decisions, the Privy Council in

Barton72 noted that those authorities had dealt with situation

that no powers of that kind are incident to or inherent in a

Colonial Legislative Assembly (without express grant), except

such as are necessary to the existence of such a body, and

the proper exercise of the functions which it is intended to

execute.

60. It must follow that in absence of any express provision

bestowing power in the Legislature to suspend its member(s)

beyond the term of the ongoing Session, the inherent power of

the Legislature can be invoked only to the extent necessary

and for proper exercise of the functions of the House at the

relevant point of time. No more. For that purpose, it could

resort to protective and self­defensive powers alone and not

punitive at all. This logic is reinforced from the dictum in

Barton73 wherein the Privy Council noted as follows:

“…“If a member of a Colonial House of Assembly is guilty of disorderly conduct in the House while sitting, he may be removed or excluded for a time, or even expelled …. The right to remove for self­security is one thing, the right to inflict punishment is another …. If the good sense and

72 supra at Footnote No.9 73 supra at Footnote No.9 72

conduct of the members of Colonial Legislatures prove insufficient to secure order and decency of debate, the law would sanction the use of that degree of force which might be necessary to remove the person excluded from the place of meeting, and to keep him excluded.””74

61. The Privy Council in the same decision then proceeded

to observe as follows:

“… The principle on which the implied power is given confines it within the limits of what is required by the assumed necessity. That necessity appears to their Lordships to extend as far as the whole duration of the particular meeting or sitting of the Assembly in the course of which the offence may have been committed. It seems to be reasonably necessary that some substantial interval should be interposed between the suspensory resolution and the resumption of his place in the Assembly by the offender, in order to give opportunity for the subsidence of heat and passion, and for reflection on his own conduct by the person suspended; nor would anything less be generally sufficient for the vindication of the authority and dignity of the Assembly. …” (emphasis supplied)

These observations are significant and apposite in the context of

the issue under consideration. And we must lean in favour of

adopting the same. Inasmuch as this exposition recognises the

fact that implied or inherent power of the Legislature must be

reckoned to the extent only to what is required to be done by the

House for effective and orderly functioning of its business during 74 1 L.R, P.C. 340 73

the ongoing Session and not beyond. This is more emphatically

expounded by the Privy Council in the following words:

“The power, therefore, of suspending a member guilty of obstruction or disorderly conduct during the continuance of any current sitting, is, in their Lordships' judgment, reasonably necessary for the proper exercise of the functions of any Legislative Assembly of this kind; and it may very well be, that the same doctrine of reasonable necessity would authorize a suspension until submission or apology by the offending member; which, if he were refractory, might cause it to be prolonged (not by the arbitrary discretion of the Assembly, but by his own wilful default) for some further time. …”

Again, it went on to observe as follows:

“… If these are the limits of the inherent or implied power, reasonably deducible from the principle of general necessity, they have the advantage of drawing a simple practical line between defensive and punitive action on the part of the Assembly. A power of unconditional suspension, for an indefinite time, or for a definite time depending only on the irresponsible discretion of the Assembly itself, is more than the necessity of self­ defence seems to require, and is dangerously liable, in possible cases, to excess or abuse. …” (emphasis supplied)

62. The essence of the analysis done in Barton75 is about

the logic and rationality behind the need to suspend a

member. It unambiguously held that the same be regarded

as temporary by way of self­protective mechanism of the

Legislature to ensure orderly conduct of its business in the

House during the sitting. For that very reason, Rule 53 75 supra at Footnote No.9 74

provides for a graded corrective action, namely, on the first

occasion, the Speaker may suspend the member for the

remainder of the day and if the misbehaviour is repeated in

the same Session — for the remainder of the Session. The

observations in Barton76 would reinforce this logic of need to

adhere to a graded approach, which reads thus:

“ …“Suspension” must be temporary; the words, “suspended from the service of the House,” may be satisfied by referring them to the attendance of the member in the House during that particular sitting. So much as this is necessary to make the suspension effective, more is not. …” (emphasis supplied)

63. In light of this decision, it must follow that only a graded

approach is the essence of a rational and logical approach;

and only such action of the Legislature which is necessary for

orderly conduct of its scheduled business of the ongoing

Session can be regarded as rational approach. Suspension

beyond the Session would be bordering on punishing not only

the member concerned, but also inevitably impact the

legitimate rights of the constituency from where the member

had been elected.

76 supra at Footnote No.9 75

64. In the case of Lawrence Joseph Harnett77, the question

was about the challenge to the Standing Order which

provided as follows:

“Whenever it shall have been ruled or decided (whether before or after the approval of this Standing Order) that the House may not proceed on a matter which has been initiated in the House affecting the alleged misconduct of a Member, because thereby the said member may be prejudiced in a criminal trial then pending on charges founded on such misconduct, the House may suspend such member from the service of the House until the verdict of the jury has been returned, or until it is further ordered.”

This Standing Order was approved by the Governor. In that

context, the Privy Council observed that it seems impossible for the

Court to declare that the House was so wrong in its judgment, and

the Standing Order and the resolution founded upon it so foreign

to the purpose contemplated by the Act, so as to declare the

proceedings against the member invalid. In other words, the Privy

Council was considering a written Standing Order and its efficacy.

65. In the present case, the House has already adopted the

Rules for conduct of its business and Rule 53 of the Rules

expressly provides for the mechanism regarding suspension of

its member. Indubitably, the source of powers and privileges

77 supra at Footnote No.66 76

of Legislatures in India is derived from Article 105(3) in case

of Parliament and Article 194(3) concerning the State

Legislature. In absence of a law to define such powers and

privileges, as of now, it can only exercise those powers as

existed in the House of Commons of the Parliament of United

Kingdom at the commencement of the Constitution.

66. In the celebrated treatise of Sir Thomas Erskine May 78

dealing with the Parliamentary privileges, it is noted as

follows:

“if for a subsequent occasion, in default of an order by the House that the suspension of the member shall terminate when the House orders that it shall do so, the suspension shall be for the remainder of the Session.”

(emphasis supplied)

He then noted that the first or subsequent occasion would mean

the first or the subsequent occasion in the same session.

67. Further, the position as obtained in United Kingdom at

the relevant time to suspend its members was governed by

the House of Commons Standing Order Relative to Public

78 The Law, Privileges Proceedings and Usage of Parliament, Fifteenth (1950) Edition (See Chapter VII under the heading “Proceedings upon the naming of a Member” at pages 451­

452.) 77

Business 1948. The relevant Standing Order is No. 22 (1 to 4)

as reproduced hereunder:

“22. Order in debate.— (1) Whenever a Member shall have been named by Mr. Speaker or by the chairman, immediately after the commission of the offence of disregarding the authority of the chair, or of persistently and willfully obstructing the business of the House by abusing the rules of the House, or otherwise, then, if the offence has been committed by such Member in the House, Mr. Speaker shall forthwith put the question, on a motion being made, no amendment, adjournment, or debate being allowed, “That such Member be suspended from the service of the House”; and if the offence has been committed in a committee of the whole House, the chairman shall forthwith suspend the proceedings of the committee and report the circumstances to the House; and Mr. Speaker shall on a motion being made forthwith put the same question, no amendment, adjournment, or debate being allowed, as if the offence had been committed in the House itself.

(2) If any member be suspended under this order, his suspension on the first occasion shall continue until the fifth day, and on the second occasion until the twentieth day, on which the House shall sit after the day on which he was suspended, but on any subsequent occasion until the House shall resolve that the suspension of such Member do terminate.

(3) Not more than one Member shall be named at the same time, unless two or more members, present together, have jointly disregarded the authority of the chair.

(4) If a Member, or two or more Members acting jointly, who have been suspended under this order from the service of the House, shall refuse to obey the direction of Mr. Speaker, when severally summoned under Mr. Speaker’s orders by the Serjeant at Arms to obey such direction, Mr. Speaker shall call the attention of the House to the fact that recourse to force is necessary in order to compel obedience to his direction, and the Member or Members named by him as having refused to obey his direction shall thereupon and without any 78

further question being put be suspended from the service of the House during the remainder of the session.”

On conjoint reading of sub­clause (2) and (4) of the above­cited

Standing Order No. 22, it is seen that suspension of a member on

the first occasion can be for a period of five days or the remainder

of the session whichever is earlier. Even for the second occasion

the period of suspension is only twenty days or remainder of the

Session, whichever is earlier. On any subsequent occasion the

period of suspension shall be until the House shall resolve that the

suspension of such member do terminate.

68. The Orissa High Court in Sushanta Kumar Chand79

had occasion to deal with a case of warrant issued by the

Speaker of the Assembly to detain the contemnor for seven

days’ simple imprisonment. It was urged that as the

unexpired period of sentence was beyond the term of the

Session of the House, the same had lapsed in law. The High

Court answered the challenge in favour of the petitioners after

noticing passage from Sir Thomas Erskine May and

Halsbury’s Laws of England. The Sir Thomas Erskine May’s

79 supra at Footnote No.10 79

Parliamentary Practice relied upon in that decision, expounds

thus:

“Persons committed by the Commons, if not sooner discharged by the House, are immediately released from their confinement on a prorogation, whether they have paid the fees or not. If they were held longer in custody, they would be discharged by the Courts upon a writ of habeas corpus.”

And Halsbury’s Law of England relied upon in the same decision

observes thus:

“The Lords claim to have power to commit an offender for a specified period even beyond the period of a session. This course was also formerly pursued by the Commons but was later abandoned; and it would now seem that they no longer have power to keep offenders in prison beyond the period of session……………” (emphasis supplied)

The rationale for limiting all remedies for breach of privilege, as a

rule, to a Session in which the House takes action for such breach

is the effect of prorogation. According to Erskine May’s Treatise 80, it

is stated as under:

“The effect of a prorogation is at once to suspend all business until Parliament shall be summoned again. Not only are the sittings of Parliament at an end, but all proceedings pending at the time are quashed, except impeachments by the Commons, and appeals before the House of Lords. Every bill must therefore be renewed after a prorogation, as if it had never been introduced.”

(emphasis supplied)

80 1950 Edition at page 32 under the heading “Effect of a Prorogation” 80

69. A priori, if the Legislature intended to depart from

mechanism predicated in Rule 53, it ought to have expressly

provided for that dispensation. If it had done that by a law or

in the form of Rules framed under Article 208 of the

Constitution, the legality and constitutionality thereof could

have been tested. Suffice it to note, in absence thereof, it

would inevitably be exercise of power without an express

grant in that regard. In such a case, the exercise of power

can only be implied or inherent and limited to the logic of

general necessity by way of self­protective or self­defensive

action reasonably necessary for proper exercise of the

functions of the House during the ongoing Session. Anything

in excess then for a day or the remainder of the ongoing

Session, would not be necessary much less rational exercise

of inherent power of the Assembly. Even, Rule 53 bestows

authority in the Speaker to take action against the member

only for ensuring orderly functioning of the House. Same

logic must apply to the exercise of inherent limited power by

the House, even if it may not be de facto under Rule 53. 81

70. Be it noted, had it been a case of expulsion of the

member by the House in terms of Section 151A of the 1951

Act, the Election Commission would move into action and

rather be obliged to take steps not later than six months to fill

in the vacancy so caused subject to the situation referred to

in the proviso therein — so that the constituency could be

duly represented in the House at the earliest opportunity.

Concededly, the Legislative Assembly is a conglomeration of

members chosen by direct election from the territorial

constituencies in the State (as per Article 170). That

presupposes that all territorial constituencies must be duly

represented in the Assembly in continuum. In any case, their

representation cannot be deprived for longer period than

necessary for the orderly functioning of the House during the

Session. For that reason, the statutory mandate postulated

vide Parliamentary law81 (which must be regarded as higher

law and acts as a limitation upon the Legislature as well, as

expounded in Sub­Committee on Judicial

81 Section 151A of the 1951 Act 82

Accountability82), the constituency cannot be denied

representation in the House beyond a limited period due to

fortuitous situation. Moreover, the expelled member would be

free to contest the mid­term election and get re­elected from

the same constituency. In that, the member does not incur

any disqualification due to expulsion or even removal by the

House. In case of suspension beyond the period of remainder

of the Session or sixty days or six months, as the case may

be, even though is not a case of disqualification incurred by

the member, it would entail in undue deprivation of the

constituency to be represented in the House by their duly

elected representative. It is, therefore, a drastic measure

trenching upon imposing penalty more than disciplinary or

corrective measure, beyond the limited inherent powers of the

House.

71. Learned counsel for the respondents had invited our

attention to the judgments of the Gujarat High Court wherein

it had been held that the rules framed under Article 208 of

the Constitution are neither statutory nor binding on the

82 supra at Footnote No.33 (para 61) 83

Legislative Assembly. Those decisions have not taken note of

the efficacy of the observations made by the Constitution

Bench of this Court in M.S.M. Sharma83 as back as in 1959

— that the rules framed under Article 208 of the Constitution

would have the effect of procedure established by law for the

purpose of Article 21 of the Constitution and which dictum

has been consistently followed in subsequent decisions

including by the Constitution Bench which dealt with the

case of Raja Ram Pal84. Accordingly, the decisions pressed

into service by the respondents cannot take the matter any

further. The respondents have relied upon other decisions

including of this Court which, however, has had no occasion

to deal with the legality and efficacy of direction or order

issued by the House such as vide impugned resolution of

suspending duly elected members for a period of one year

instead of maximum period of remainder of the same Session.

Indeed, the decision of Madras High Court in V.C. Chandhira

Kumar, Member of Legislative Assembly 85 held the

83 supra at Footnote No.11 84 supra at Footnote No.14 85 supra at Footnote No.23 84

resolution of the Assembly reducing the original period of one

year to six months as valid, however, for the view that we

have taken, the said decision will be of no avail.

72. Resultantly, we have no hesitation in concluding that

the impugned resolution suffers from the vice of being

unconstitutional, grossly illegal and irrational to the extent of

period of suspension beyond the remainder of the concerned

(ongoing) Session. Further, it is not a case of mere procedural

irregularity committed by the Legislature within the meaning

of Article 212(1) of the Constitution.

73. Although learned counsel appearing for the parties had

raised diverse contentions, we need not dilate further having

opined that in exercise of inherent power of the House, the

suspension of the members could not have, in any case,

exceeded the remainder period of the ongoing Session. The

concerned Session having concluded long back in July 2021,

the petitions ought to succeed and could be disposed of with a

declaration that suspension beyond the remainder of the

ongoing Session in which the resolution was passed, is 85

nullity, unconstitutional and grossly illegal and irrational.

The same cannot be given effect to beyond the remainder

period of the concerned Session and must be regarded as non

est in the eyes of law beyond that period. For that reason, it

is unnecessary for us to dilate on other aspects of the matter.

Thus, we do not wish to examine the same.

Epilogue:

74. It is unnecessary to underscore that Parliament as well

as the State Legislative Assembly are regarded as sacred

places, just as the Judicature as temple of justice. As a

matter of fact, the first place where justice is dispensed to the

common man is Parliament/Legislative Assembly albeit by a

democratic process. It is a place where policies and laws are

propounded for governing the citizenry. It is here that the

entire range of activities concerning the masses until the last

mile, are discussed and their destinies are shaped. That, in

itself, is the process of dispensing justice to the citizens of

this country. These are places where robust and

dispassionate debates and discussion inspired by the highest 86

traditions of truth and righteousness ought to take place for

resolving the burning issues confronting the nation/State and

for dispensing justice — political, social and economic. The

happenings in the House is reflection of the contemporary

societal fabric. The behavioural pattern of the society is

manifested or mirrored in the thought process and actions of

the members of the House during the debates. It is in public

domain (through print, electronic and social media) that the

members of the Parliament or Assembly/Council of the State,

spend much of the time in a hostile atmosphere. The

Parliament/Legislative Assembly are becoming more and

more intransigent place. The philosophical tenet, one must

agree to disagree is becoming a seldom scene or a rarity

during the debates. It has become common to hear that the

House could not complete its usual scheduled business and

most of the time had been spent in jeering and personal

attacks against each other instead of erudite constructive and

educative debates consistent with the highest tradition of the

august body. This is the popular sentiment gaining ground

amongst the common man. It is disheartening for the 87

observers. They earnestly feel that it is high time that

corrective steps are taken by all concerned and the elected

representatives would do enough to restore the glory and the

standard of intellectual debates of the highest order, as have

been chronicled of their predecessors. That legacy should

become more prominent than the rumpus caused very often.

Aggression during the debates has no place in the setting of

country governed by the Rule of Law. Even a complex issue

needs to be resolved in a congenial atmosphere by observing

collegiality and showing full respect and deference towards

each other. They ought to ensure optimum utilisation of

quality time of the House, which is very precious, and is the

need of the hour especially when we the people of India that is

Bharat, take credit of being the oldest civilisation on the

planet and also being the world’s largest democracy

(demographically). For becoming world leaders and self­

dependant/reliant, quality of debates in the House ought to

be of the highest order and directed towards intrinsic

constitutional and native issues confronting the common man

of the nation/States, who are at the crossroad of semi­ 88

sesquicentennial or may we say platinum or diamond jubilee

year on completion of 75 years post­independence. Being

House of respected and honourable members, who are

emulated by their ardent followers and elected from their

respective constituency, they are expected to show

statesmanship and not brinkmanship. In the House, their

goal is and must be one — so as to ensure the welfare and

happiness of we the people of this nation. In any case, there

can be no place for disorderly conduct in the House much

less “grossly disorderly”. Such conduct must be dealt with

sternly for ensuring orderly functioning of the House. But,

that action must be constitutional, legal, rational and as per

the procedure established by law. This case has thrown up

an occasion for all concerned to ponder over the need to

evolve and adhere to good practices befitting the august body;

and appropriately denounce and discourage proponents of

undemocratic activities in the House, by democratically

elected representatives. We say no more.

Conclusion:

89

75. In conclusion, we have no hesitation in allowing these

writ petitions and to declare that the impugned resolution

directing suspension of the petitioners beyond the period of

the remainder of the concerned Monsoon Session held in July

2021 is non est in the eyes of law, nullity, unconstitutional,

substantively illegal and irrational. The impugned

resolution is, thus, declared to be

ineffective in law, insofar as the period beyond the remainder

of the stated Session in which the resolution came to be

passed.

Order:

76. As a result of the stated declaration, the petitioners are

entitled for all consequential benefits of being members of the

Legislative Assembly, on and after the expiry of the period of

the remainder of the concerned Session in July 2021. The

writ petitions are allowed in the above terms. No order as to

costs.

Postscript:

77. While parting, we need to express a word of appreciation

for the able assistance given by the learned counsel appearing 90

for the concerned parties enabling us to deal with the complex

issues on hand. That they did despite the handicaps and

uncertainty of online interaction in virtual Court hearing.

Pending application(s), if any, stands disposed of.

..……………………………J. (A.M. Khanwilkar)

………………………………J. (Dinesh Maheshwari)

………………………………J. (C.T. Ravikumar) New Delhi;

January 28, 2022.