ASHISH SHELAR & ORS. versus THE MAHARASHTRA LEGISLATIVE ASSEMBLY & ANR. on 28 January 2022

SUPREME COURT REPORTS

[2022] 18 S.C.R.

ASHISH SHELAR & ORS.

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v.

THE MAHARASHTRA LEGISLATIVE ASSEMBLY & ANR.

(Writ Petition (Civil) No.797 of 2021)

B

JANAUARY 28, 2022

[A. M. KHANWILKAR, DINESH MAHESHWARI ANDC.T. RAVIKUMAR, JJ.]

Constitution of India : Art. 190(4), 208 - MaharashtraLegislative Assembly Rules, 2015 – rr.8, 53, 106 - Suspension ofCMember of Legislative Assembly – Petitioners, members ofMaharashtra Legislative Assembly (2019-2024), belongs to BhartiyaJanata Party, the principal opposition party – During theproceedings of the Monsoon Session of the Maharashtra LegislativeAssembly heated exchanges between the members of the ruling partyDand the opposition party as general feeling developed amongst theopposition that the business of the House was being conducted inunilateral manner – Thereafter, resolution moved by the Ministerfor Parliamentary Affairs for initiating action against the petitioners-12 MLAs of the BJP by way of suspension for one year for havingcommitted contempt of the House, and was later passed by majorityEvotes – Writ petition by the petitioners seeking quashing and settingaside of the said resolution passed by the Maharashtra LegislativeAssembly being unconstitutional and grossly illegal – Held:Resolution suffers from the vice of being unconstitutional, grosslyillegal and irrational to the extent of period of suspension beyondFthe remainder of the concerned(ongoing) Session – It is not a caseof mere procedural irregularity committed by the Legislature withinthe meaning of Art. 212(1) – Said resolution is non est in the eyes oflaw, nullity, unconstitutional, substantively illegal and irrational –Under r. 53 Speaker is expected to exercise this power only in caseof conduct of the member being “grossly disorderly” and providesGfor a graded (rational and objective standard) approach to beadopted by the Speaker for ensuring orderly conduct of the businessof the House – Suspension beyond the remainder period of theongoing Session would not only be grossly irrational measure, butalso violative of basic democratic values – One year suspension isH

worse than “expulsion”, “disqualification” or “resignation”–Procedure in directly withdrawing the petitioner without inquiry bythe Committee of Privilege and opportunity of hearing to them isneither prescribed in Part XVIII of the Rules or Rule 53 enablingthe Speaker to do so – Indeed, the constituency cannot have anyright to be represented by a disqualified or expelled member –However, their representative cannot be kept away from the Housein the guise of suspension beyond the necessary (rational) periodlinked to the ongoing Assembly Session, including the timelinereferred to in Art. 190(4) and s. 151A of the 1951 Act – Suspensionbeyond the Session would be bordering on punishing not only themember concerned, but also inevitably impact the legitimate rightsof the constituency from where the member had been elected – It is,therefore, a drastic measure trenching upon imposing penalty morethan disciplinary or corrective measure, beyond the limited inherentpowers of the House – Thus, the impugned resolution is, thus,declared to be ineffective in law, insofar as the period beyond theremainder of the stated Session in which the resolution came to bepassed – Petitioners entitled for all consequential benefits of beingmembers of the Legislative Assembly, on and after the expiry of theperiod of the remainder of the concerned Session.

Maharashtra Legislative Assembly Rules, 2015 – r. 53 - Powerto order withdrawal of member - Procedure prescribed under -Explained.

Words and phrases: grossly and disorderly, suspension –Meaning of, in the context of functioning of the House during thesession.

Allowing the writ petitions, the Court

Conclusion

HELD: 1. The impugned resolution suffers from the viceof being unconstitutional, grossly illegal and irrational to theextent of period of suspension beyond the remainder of theconcerned(ongoing) Session. Further, it is not a case of mereprocedural irregularity committed by the Legislature within themeaning of Article 212(1) of the Constitution. The impugnedresolution directing suspension of the petitioners beyond theperiod of the remainder of the concerned Monsoon Session heldin July2021 is non est in the eyes of law, nullity, unconstitutional, AB

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Asubstantively illegal and irrational. The impugned resolution is,thus, declared to be ineffective in law, insofar as the period beyondthe remainder of the stated Session in which the resolution cameto be passed. The petitioners are entitled for all consequentialbenefits of being members of the Legislative Assembly, on andafter the expiry of the period of the remainder of the concernedBSession in July 2021. [Paras 72, 75, 76][822-D; 824-E-G]

2.1 It is settled law that even rules made to exercise thepowers and privileges of State Legislature constitute law withinthe meaning of Article 13. The plea taken by the State that therules are neither statutory rules nor binding on the House willCbe of no avail. [Paras 32, 33][801-A, B-C]

2.2 The rules so framed can be altered by the House at anytime. Until the rules are altered, however, the House is ordinarilyguided by the procedure prescribed in the rules framedunder Article 208 of the Constitution. At the same time,Dproceedings inside the Legislature cannot be called into questionon the ground that the same have not been carried on inaccordance with the rules of business. It is, however, enough forthe present to observe that the framed under Article 208 acquirethe status of procedure established by law for the purposeEof Article 21 of the Constitution. Viewed thus, even though theLegislature has the prerogative to deviate from the rulesincluding to alter the rules; until then, and even otherwise, it isexpected to adhere to the “express substantive stipulation”(which is not mere procedure) in the rules framed under Article208 of the Constitution and the principle underlying therein, beingFprocedure established by law. [Paras 34, 35][801-G-H; 802-A-D]

2.3 The dispensation prescribed under the Rules toexercise power to order withdrawal of member (suspension) isascribable to Rule 53 of the Rules. This Rule not only speaksabout the procedure to be adopted for passing the drastic orderGof withdrawal of a member from the House but also about thesubstantive disciplinary or the rationality of the self- securitymeasure to be taken in a graded (objective standard) manner.

The non-compliance of or deviation from the former (procedure)may be non-justiciable. However, in regard to the substantivedisciplinary or the rationality of the self-security measure inflictedupon the erring member, is open to judicial review on thetouchstone of being unconstitutional, grossly illegal and irrationalor arbitrary. In terms of above Rule, the power is exercised bythe Speaker being a quasi-judicial order directing the memberto withdraw from the meetings of the Assembly. The Speaker isexpected to exercise this power only in case of conduct of themember being “grossly disorderly” and in a graded objectivemanner. The raison d’etre is to ensure that the business of theHouse on the given day or the ongoing Session, as the case maybe, can be carried on in an orderly manner and without anydisruption owing to misconduct of one or more members. Theexpression used in the stated Rule is “grossly disorderly”. Theexpression “grossly disorderly” has not been defined in theRules. Grossly”, is an adverb and indicative of relatively higherdegree of misconduct or so to say extremely wrong and deviant.[Paras 36-38][802-D; 803-A-D, F-G]

2.4 Taking the totality of the meaning of expressions“grossly” and “disorderly”, it must follow that the conduct of themember is such that it was impeding the smooth or orderlyfunctioning of the House, and may also be of such a nature that itis likely to bring disrepute to the House. It may involve variedsituations and, therefore, implied exercise of rational correctivemechanism is quintessential. The action of suspension ordirecting withdrawal of a member from the meetings of theAssembly is in the nature of self-security and is essentiallydirected to ensure that the House can then protect itself againstobstruction, or disturbance of its ongoing proceedings owing tothe misconduct of any of its members. That power is differentfrom the privilege to inflict punishment on a member, which mayrequire higher degree of deprivation of the member over andabove participating in the proceedings of the House during theSession. In a given case, it can be in the form of expulsion beingthe highest degree of exclusion of the member from the House.Yet another would be penal, in case of ordering imprisonmentowing to act of contempt of the House. Rule 53 of the Rulesprovides for a graded (rational and objective standard) approach AB

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Ato be adopted by the Speaker for ensuring orderly conduct of thebusiness of the House. In the present case, however, the Ministerfor Parliamentary Affairs introduced a motion in the House forinitiating action for contempt of the House, which the Chairmanallowed it to be put to vote instantly at 14:40 hours on the sameday and it was passed by the House by majority in no time. Indeed,Bif it is a case of grossly disorderly behaviour in the House, theSpeaker/Chairman himself is free to take instantaneous decisionto order withdrawal of the member from the meetings of theAssembly during the remainder of the day’s meeting and if it is acase of repeat misconduct in the same Session — for theCremainder of the Session. [Paras 40, 41][804-E-H; 805-A-D]

2.5 Concededly, there is nothing in the constitutionalscheme or the rules framed under Article 208to prevent amember of the House to move a motion for directing withdrawalof a member on the ground of his grossly disorderly conduct.DFurther, if the Speaker can suo motu direct the member towithdraw from the Assembly on the same day instantly to securesmooth functioning of the proceedings, for the same logic, eventhe House could pass a resolution itself on a motion being movedby a member of the House instantly with the concurrence of theSpeaker on such a motion. [Para 42][805-E-F]E

2.6 In the present case, the Chairman entertained thesubject motion and called upon the House to vote thereon, whichhad the effect of giving tacit consent if not explicit concurrenceto the same. In that sense, it is not a case of resolution passed bythe House (to suspend its members) as being without jurisdiction.FIt 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 theremainder of the day and for repeat misconduct in the sameSession — for the remainder of the Session. That would be alogical and rational approach consistent with the constitutionalGtenets. If the House takes upon itself to discipline its members,it is expected to adopt the same graded (rational and objectivestandard) approach on the lines predicated in Rule 53. That wouldbe a case of rational action taken by the House as per the procedure established by law. As opposed to a rational decision,it would be a case of irrational or preposterous approach. [Para43-44][805-F-H; 806-A-B, D]

2.7 A priori, if the resolution passed by the House was toprovide for suspension beyond the period prescribed under thestated Rule, it would be substantively illegal, irrational andunconstitutional. In that, the graded (rational and objectivestandard) approach predicated in Rule 53 is the benchmark to beobserved by the Speaker to enable him to ensure smooth workingof the House, without any obstruction or impediment and forkeeping the recalcitrant member away from the House for aperiod maximum up to the remainder of the entire Session. [Para45][806-F-G]

2.8 Inflicting suspension for a period “beyond the periodnecessary” than to ensure smooth working/functioning of theHouse during the Session “by itself”; and also, as per theunderlying objective standard specified in Rule 53, indubitably,suffer from the vice of being grossly irrational measure adoptedagainst the erring member and also substantively illegal andunconstitutional. [Para 46][807-A-B]

2.9 Suspension beyond the remainder period of the ongoingSession would not only be grossly irrational measure, but alsoviolative of basic democratic values owing to unessentialdeprivation of the member concerned and more importantly, theconstituency would remain unrepresented in the Assembly. Itwould also impact the democratic setup as a whole by permittingthe thin majority Government (coalition Government) of the dayto manipulate the numbers of the Opposition Party in the Housein an undemocratic manner. Not only that, the Opposition willnot be able to effectively participate in the discussion/debate inthe House owing to the constant fear of its members beingsuspended for longer period. There would be no purposeful ormeaningful debates but one in terrorem and as per the whims ofthe majority. That would not be healthy for the democracy as awhole. [Para 48][807-D-F]

2.10 It is well established that fundamental rights areguaranteed by Part III of the Constitution, out of which Articles A

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A14, 19 and 21 are the most frequently invoked to test the validityof the executive as well as legislative actions when these actionsare subjected to judicial scrutiny. Different Articles in theConstitution under chapter Fundamental Rights and the DirectivePrinciples in Part IV ought to be read as an integral and incorporealwhole with possible overlapping with the subject matter of whatBis to be protected by its various provisions particularly thefundamental rights. The sweep of Article 21 is expansive enoughto govern the action of dismembering a member from the Houseof the Legislative Assembly in the form of expulsion or be it acase of suspension by directing withdrawal from the meeting ofCthe Assembly for the remainder of the Session. [Para 49][807-G-H; 808-A-B]

2.11 It is evident from the impugned resolution that it hasbeen passed by the majority votes in the House immediately afterit was put to vote by the Chairman. It was in fact introduced as aDmotion for initiating action for having committed contempt of theHouse which ordinarily ought to have proceeded under Part XVIIIof the Rules dealing with Privileges. That would have requiredconstitution of a Committee of Privileges to enquire into theentire matter by giving opportunity of hearing to the personsconcerned. Instead of adopting that procedure, the House itselfEchose to direct withdrawal of the petitioners from the meetingsof the Assembly for a period of one year-which direction is neitherascribable to the dispensation prescribed in Part XVIII of theRules or Rule 53 enabling the Speaker to do so. [Para 50][808-B-D]F

2.12 It is not a case of procedural irregularity as such.Whereas, the decision taken by the House in this case, is one ofsubstantive illegality in directing suspension beyond the periodof remainder of the Session in which the motion was presented.It is said so because, the period of suspension in excess of theGperiod essential to do so much less in a graded manner includingon principle underlying Rule 53, would be antithesis to rationalor objective standard approach for ensuring orderly functioningof the House during the ongoing Session. [Para 51][808-E-F]

2.13 Reverting to the challenge to the impugned resolutionHbeing grossly irrational. As noticed earlier, Rule 53 provides for a graded (rational and objective standard) approach. The timelineas specified in Rule 53 is with a view to address the immediateconcern of the House for ensuring orderly conduct of the businessof the House in the given Session. This action is implied on thedoctrine of necessity. The Speaker and for that matter, even theHouse as a whole or by majority, would be within its power toresort to such a mechanism being rational measure. Exceedingthe stated timeline is a substantive matter and not a proceduralirregularity. It would raise a basic question as to what purposewould be served by withdrawing the member from the House forsuccessive Sessions falling within that period of one year. Indeed,if the conduct of the member is gross warranting his removalfrom the Assembly even beyond the period of sixty days [Article190(4)]or six months (Section 151Aof the 1951 Act), the Houseis capable of invoking its inherent power of expulsion of such amember, which is a greater power. [Para 52][808-F-H; 809-A-B]

2.14 Suspension for a day or for the remainder of theSession, would be of a lesser degree of exercise of that power.However, it is not open to contend that the higher degree ofpower would include power to suspend the member beyond theperiod essential to keep him/her away from the Assembly forensuring orderly conduct of the business of the House. Theimportant consideration for scrutinising the exercise of legislativeprivileges is whether the same is necessary to safeguard theintegrity of the legislative functions. This Court had recognisedthat the Legislature’s power to punish for its contempt was notuntrammelled. That power of legislative chamber to punish forits own contempt must coincide with the Legislature’s interestin protecting the integrity of its function. In other words, thesuspension of a member must be preferred as a short-term or atemporary measure for restoring order in the functioning of theconcerned Assembly Session for completing its scheduledbusiness within time and by way of disciplinary measure againstthe incorrigible member(s). [Para 53][809-B-E]

2.15 The word “suspension” is necessarily linked toattendance of the member in the House. Thus, the suspension A

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Amay be resorted to merely for ensuring orderly conduct of thebusiness of the House during the concerned Session. Anythingin excess of that would be irrational suspension. This is sobecause the member represents the constituency from where hehas been duly elected and longer suspension would entail indeprivation of the constituency to be represented in the House.BIt is true that right to vote and be represented is integral to ourdemocratic process and it is not an absolute right. Indeed, theconstituency cannot have any right to be represented by adisqualified or expelled member. However, their representativecannot be kept away from the House in the guise of suspensionCbeyond the necessary (rational) period linked to the ongoingAssembly Session, including the timeline referred to in Article190(4) of the Constitution and Section 151A of the 1951 Act. [Para54] [809-E-H]

2.16 Suspension is essentially a disciplinary measure.DSuspension for a period of one year would assume the characterof punitive and punishment worse than expulsion. For, suspensionfor long period and beyond the Session has the effect of creatinga de facto vacancy though not a de jure vacancy. The argument ofthe State that despite suspension from the House, the memberswould continue to discharge all other functions outside the HouseEas an elected representative. This plea, is tenuous. For, the effectof such suspension is visited not only on the constituency thatgoes unrepresented for potentially long and unessential time,but also on the functioning of the Assembly itself. [Para 55][810-A-C]

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2.17 One-year suspension is worse than “expulsion”,“disqualification” or “resignation” — insofar as the right of theconstituency to be represented before the House/Assembly isconcerned. Long suspension bound to affect the rights harsherthan expulsion wherein amid term election is held within theGspecified time in terms of Section 151A of the 1951 Act, not laterthan six months. Thus, the impugned resolution is unreasonable,irrational, and arbitrary and liable to be set aside. [Para 56][810-D-E]

2.18 It must follow that in absence of any express provisionHbestowing power in the Legislature to suspend its member(s)

beyond the term of the ongoing Session, the inherent power ofthe Legislature can be invoked only to the extent necessary andfor proper exercise of the functions of the House at the relevantpoint of time. No more. For that purpose, it could resort toprotective and self-defensive powers alone and not punitive atall. [Para 60][814-F-G]

2.19 Implied or inherent power of the Legislature must bereckoned to the extent only to what is required to be done by theHouse for effective and orderly functioning of its business duringthe ongoing Session and not beyond. For that very reason, Rule53 provides for a graded corrective action, namely, on the firstoccasion, the Speaker may suspend the member for the remainderof the day and if the misbehaviour is repeated in the same Session— for the remainder of the Session. [Paras 61, 62][815-F-G; 816-F]

2.20 It must follow that only a graded approach is theessence of a rational and logical approach; and only such actionof the Legislature which is necessary for orderly conduct of itsscheduled business of the ongoing Session can be regarded asrational approach. Suspension beyond the Session would bebordering on punishing not only the member concerned, but alsoinevitably impact the legitimate rights of the constituency fromwhere the member had been elected. [Para 63][817-A-B]

2.21 In the present case, the House has already adoptedthe Rules for conduct of its business and Rule 53 of the Rulesexpressly provides for the mechanism regarding suspension ofits member. Indubitably, the source of powers and privileges 77supra at Footnote No.66 of Legislatures in India is derivedfrom Article 105(3) in case of Parliament and Article194(3)concerning the State Legislature. In absence of a law todefine such powers and privileges, as of now, it can only exercisethose powers as existed in the House of Commons of theParliament of United Kingdom at the commencement of theConstitution. [Para 65][817-E-G]

2.22 A priori, if the Legislature intended to depart frommechanism predicated in Rule 53, it ought to have expressly A

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772SUPREME COURT REPORTS

Aprovided for that dispensation. If it had done that by a law or inthe 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 beexercise of power without an express grant in that regard. Insuch a case, the exercise of power can only be implied or inherentBand limited to the logic of general necessity by way ofself-protective or self-defensive action reasonably necessary forproper exercise of the functions of the House during the ongoingSession. Anything in excess then for a day or the remainder ofthe ongoing Session, would not be necessary much less rationalCexercise of inherent power of the Assembly. Even, Rule 53bestows authority in the Speaker to take action against themember only for ensuring orderly functioning of the House. Samelogic must apply to the exercise of inherent limited power by theHouse, even if it may not be de facto under Rule 53. [Para 69][820-E-G]D

M. S. M. Sharma v. Sri Krishna Sinha & Ors. AIR 1959SC 395 : [1959] Suppl. SCR 806; Raja Ram Pal v.Hon’ble Speaker, Lok Sabha & Ors. (2007) 3 SCC 184: [2007] 1 SCR 317; Amarinder Singh v. SpecialCommittee, Punjab Vidhan Sabha & Ors. (2010) 6 SCCE113 : [2010] 4 SCR 1105; Sub- Committee on JudicialAccountability vs. Union of India & Ors. (1991) 4 SCC699 : [1991] 2 Suppl. SCR 1 – followed.

Alagaapuram R. Mohanraj &Ors. v. Tamil NaduLegislative Assembly & Anr. (2016) 6 SCC 82 : [2016]F6 SCR 611; Sushanta Kumar Chand & Ors. v. TheSpeaker, Orissa Legislative Assembly and Anr. AIR 1973Ori 111; Special Reference No.1 of 1964 AIR 1965 SC745 : [1965] SCR 413; Jagjit Singh v. State of Haryana& Ors. (2006) 11 SCC 1 : [2006] 10 Suppl. SCR 521;GJagdishbhai Thakore & Anr. v. ChandrikabenChudasma & Ors. 2007 (48) 4 GLR 2998; ChhabildasMehta, M.L.A. v. The Legislative Assembly, Gujarat State(1970) 11 GLR 729; K. A. Mathialagan v. P. Srinivasan& Ors. AIR 1973 Madras 371; A.M. Paulraj v. TheSpeaker, Tamil Nadu Legislative Assembly, Madras &

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ASHISH SHELAR & ORS. v. THE MAHARASHTRA LEGISLATIVEASSEMBLY & ANR.

Anr. AIR 1986 Madras 248; K. Anbazhagan & Ors. v.The Secretary, The Tamil Nadu Legislative Assembly,Madras & Ors. 1987 SCC OnLine Mad 89; V. C.Chandhira Kumar, Member of Legislative Assembly &Ors. v. Tamil Nadu Legislative Assembly, Secretariat &Anr. 2013 (6) CTC 506; Kihota Hollohon v. Zachilhu& Ors. AIR 1993 SC 412; M. C. Mehta v. Union ofIndia & Ors. (1999) 6 SCC 237 : [1999] 3 SCR 1173;Ratilal Bhanji Mithani v. Asstt. Collector of Customs,Bombay & Anr. [1967] 3 SCR 926 – referred to.

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Barton v. Taylor (1886) 11 AC 197; Bradlaugh v.Gossett (1884) 12 QBD 271: 50 LT 620; Edward Kielleyvs. William Carson (1842) 4 Moore PC 63 : 13 ER 22564; Thomas William Doyle v. George Charles Falconer,(1865-67) LR 1 PC 328 : 36 LJPC 33 : 15 WR 366 –referred to.

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Treatise of Sir Thomas Erskine: The Law, PrivilegesProceedings and Usage of Parliament, fifteenth (1950)Edition; Black’s Law 11th Edition, 6th Edition; ConciseOxford Dictionary 8 th Edition – referred to.

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.797 of 2021.

Under Article 32 of The Constitution of India.

AWith

Writ Petition (Civil) Nos. 807, 800 and 808 of 2021.

Siddharth Bhatnagar, Mahesh Jethmalani, Neeraj Kishan Kaul,Mukul Rohatgi, Sr. Advs., Siddharth Dharmadhikari, Abhikalp PratapSingh, Abhay Anturkar, Ms. Pracheta Kar, Aditya Sidhra, Nadeem Afroz,BUtsav Trivedi, Abhinay, Ms. Astha Prasad, Himanshu Sachdeva,Ms. Manini Roy, Ms. Shivani Bhushan, Ms. Unnati Vijay, Ms. AishwaryaSamal, Pooran Chand Roy, Milinda Sharma, Ravi Sharma, Ms. MugdhaPande, Karan Dev Chopra, Ms. Arzoo Aneja, Ms. Ira Mahajan, Ms.Bhavya Tyagi, Ms. Bhavya Pande, Ms. Aadya Yadav, Dhruv Tank, Advs.Cfor the Petitioners.

C. Aryama Sundaram, Sr. Adv., Rahul Chitnis, Sachin Patil, AkshayShinde, Aaditya A. Pande, Geo Joseph, Ms. Shwetal Shepal, Ms. RohiniMusa, Zafar Inayat, Abhishek Gupta, Advs. for the Respondents.

The Judgment of the Court was delivered byD

A. M. KHANWILKAR, J.

1. The petitioners have been duly elected as members of the currentMaharashtra Legislative Assembly (2019-2024). They got elected fromdifferent constituencies in the State of Maharashtra. They belong to theBharatiya Janata Party[1], the principal Opposition Party in theEMaharashtra Legislative Assembly. The Ruling Party is a coalitionbetween the Shiv Sena, the Nationalist Congress Party (NCP) and theIndian National Congress (INC) christened as “Maha Vikas Aghadi”.

2. This lis emanates from the events as unfolded during theMonsoon Session of the Maharashtra Legislative Assembly on 5.7.2021.FThe proceedings of the House witnessed heated exchanges betweenthe members of the Opposition Party and the Ruling Party due to animpression formed by the former that the business of the House wasbeing conducted in unilateral manner, with conscious and engineeredeffort to suppress voice of the Opposition Party. In that, even the LeaderGof Opposition was denied an opportunity to speak on a crucial motionunder consideration. At the relevant time, the House was presided overby the Chairman nominated under Rule 8 of the Maharashtra LegislativeAssembly Rules[2], who according to the petitioners, denied opportunityto the Opposition Party to speak including to the Leader of Opposition.

1 for short, “BJP”H2 for short, “Rules”

2 for short, “Rules”

3. It is alleged that in the meeting of the Business AdvisoryCommittee, which preceded the actual Assembly Session, there was aconcerted effort on behalf of the members of the Ruling Party to cutshort the Assembly Session for a period of two days especially when theState was facing unprecedented situation owing to pandemic, whichneeded elaborate deliberation in the House. The concerted effort was tostrip of all legislative tools available to the Opposition Party so as tomake sure that voice of opposition is muffled and suppressed.

4. The Chair of the Speaker of the House was vacant at therelevant time due to stepping down by the incumbent. The election forappointing a new Speaker of the Assembly was yet to be conducted. Asper Rule 8 of the Rules, in such a situation other nominated member ofthe House had to preside on 5.7.2021. As aforesaid, a general feelinghad developed amongst the members of the Opposition Party that thebusiness of the House was not being transacted in congenial mannerand they were prevented from raising important questions and expresstheir views on matters of public importance. To wit, when the Ministerwas moving a resolution in relation to the empirical data pertaining toOBC, the Leader of Opposition wanted to object to the same. However,he was denied that opportunity. That eventually led to heated exchangesbetween the members of both sides and consequently, the House wasadjourned.

5. Thereafter, some of the members of the Opposition went tomeet the Deputy Speaker in his chamber to vent out their grievanceregarding the unfair manner of conducting proceedings by the nominatedChairman. 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 theShiv Sena were present in the chamber and involved in heated exchanges,but no action was being taken against them as both the sections hadapologised to each other. According to the petitioners, when the Houseresumed, by way of courtesy a sincere apology was graciously tenderedby the Leader of Opposition to the Chairman for the earlier incidentwhile adverting to the fact that none of the MLAs belonging to theOpposition Party (BJP) including the petitioners herein had abused theChairman. Soon thereafter, to the utter surprise of the petitioners (andother members of the Opposition Parties), the Minister for ParliamentaryAffairs moved a resolution for initiating action against 12 MLAs of the A

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ABJP for having committed contempt of the House. That motion wastabled 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 wasput to vote at 14:40 hours on 5.7.2021. The same reads thus:

B“P.H.: Contempt of the House by objectionable behavior M.H.: Resolution of Minister for Parliamentary Affairs regardingsuspension of M.L.A.s for Contempt of the House due toobjectionable behavior.

1) Dr. Sanjay Kute,

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2) Adv. Ashish Shelar,

3) Shri Abhimanyu Pawar

4) Shri Girish Mahajan

5) Shri Atul Bhatkhalkar

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6) Adv. Parag Alavani,

7) Shri Harish Pimple

8) Shri Ram Satpute,

9) Shri Jaikumar Rawal,

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10) Shri Yogesh Sagar,

11) Shri Narayan Kuche,

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

Adv. Anil Parab (Minister for Parliamentary Affairs): Hon’bleSpeaker, I wish to move the following resolution with your kindpermission.

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“On 5[th] July 2021 when the business of the House was beingconducted, Hon’ble M.L.As Dr. Sanjay Kute, Adv. Ashish Shelar,GSarvashree 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 Chairmanin the Speaker’s Chair unparliamentary language, tried to takethe mike and Rajdand, despite repeated warnings, all these H

ASHISH SHELAR & ORS. v. THE MAHARASHTRA LEGISLATIVEASSEMBLY & ANR. [A. M. KHANWILKAR, J.]

members misbehaved in the chamber of the Hon’ble Speaker evenafter the House was adjourned and abused and manhandled theChairman in the Speaker’s Chair. Due to the indisciplined andunbecoming behavior resulting in maligning the dignity of theHouse, this House resolves to suspend the membership ofSarvashree Dr. Sanjay Kute, Adv. Ashish Shelar, SarvashreeAbhimanyu Pawar, Girish Mahajan, Atul Bhatkhalkar, Adv. ParagAlvani, Sarvashree Harish Pimple, Ram Satpute, Jaikumar Rawal,Yogesh Sagar, Narayan Kuche, Kirtikumar @ Bunty Bhangdiafor a period of one year. Similarly, during the period of suspensionthey may be restrained from entering into the premises of VidhanBhawan 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 tovote.

Resolution has been passed after putting it to vote.”

6. According to the petitioners, the Leader of Opposition thereafterwrote four letters to the Deputy Speaker on 7.7.2021 for furnishingrelevant information including CCTV footage, video recording of theentire proceedings and a copy of the verbatim proceedings of the recordof the Legislative Assembly dated 5.7.2021 and 6.7.2021. Thereafter,the petitioners also sent letters to the Deputy Speaker requesting him tofurnish relevant material of the proceedings including recording of theproceedings in the House dated 5.7.2021 and 6.7.2021.

7. Eventually, on 22.7.2021, the petitioners approached this Courtby way of these writ petitions under Article 32 of the Constitution ofIndia, for issuing appropriate writ, order or direction so as to quash andset aside the impugned resolution dated 5.7.2021 passed by theMaharashtra Legislative Assembly being unconstitutional and grosslyillegal and for enforcement of their fundamental rights as guaranteedunder Articles 14 and 21 of the Constitution.

8. It is urged that the impugned resolution dated 5.7.2021 hasbeen passed in undue haste and is politically motivated. It is primarilyintended to adversely impact the numbers of the Opposition Party in theHouse. It has been passed without giving an opportunity of hearing to A

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Athe 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, wouldBindicate the undue haste in which the impugned resolution came to bepassed within a matter of hours, that too, without granting opportunity tothe petitioners to meet the case against them. This was grossly andpatently violative of Article 14 of the Constitution. For, there was absolutelyno material before the Chairman or the Minister to substantiate the needfor suspending the petitioners, that too for such a long period.C10. Further, even the impugned resolution dated 5.7.2021 doesnot refer to any material on the basis of which such extreme step ofsuspension had been taken against these petitioners. There is no indicationin the resolution as to how the 12 members (petitioners herein) wereidentified from a huge crowd of people and singled out for initiating theDaction of suspension. As a matter of fact, the impugned resolution itselfalludes to unruly behaviour on the floor of the House and outside thechamber of the Speaker. The video footage of the alleged incident, whichis in public domain, shows a large crowd of people and there is absolutelyno way of identifying the 12 MLAs (petitioners herein) who have beenEsuspended and singled out. As a matter of fact, the Minister who broughtthe motion was not even present in the chamber of the Speaker. In asimilar situation, this Court in Alagaapuram R. Mohanraj[4] had to quashthe resolution for lack of evidence to identify the suspended members ofthe Tamil Nadu Legislative Assembly.

F11. In the present case, the impugned resolution makes no referenceto any material much less video footage, etc., which has been reliedupon before bringing an action for suspension. Moreover, it is amplyclear from the impugned resolution that the action against the petitionerswas for alleged unruly behaviour/misconduct and not for breach ofprivilege that is covered by an independent dispensation. As regardsGsuspension of a member of the House, as per Rule 53 of the Rules suchaction could be initiated “only” by the Speaker after complying with theprinciples 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.

3 (2016) 6 SCC 82H4 supra at Footnote No.3

The Speaker is expected to act fairly, in particular during the conduct ofproceedings in the House towards both sides, namely, members of theRuling Party as well as of the Opposition Party. So to speak, he exercisesquasi-judicial function.

12. It is urged that a motion for unruly behaviour in the House cannever be a subject matter of voting since it would enable the politicalparty in power to virtually wipe out the opposition for some trivial actscommitted by their members, by suspending as many members of theOpposition Party. The decision of suspension, therefore, must rest withthe Speaker and not the House. Notably, Rule 53 of the Rules prescribesa maximum period of suspension not exceeding remainder of the Sessions.Thus, suspension of the petitioners for a period of one year is grosslyunconstitutional and illegal. If the impugned resolution was allowed toprevail, nothing would prevent the political party in power (in majority)to resort to such mechanism and to suspend a large number of membersof Opposition Party upto five years or remainder of the term of theLegislative 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, heatedexchanges allegedly occurring between him and the petitioners outsidethe House, would not invite action of suspension, inasmuch as afterstepping down as Speaker, he would continue only as an ordinary MLA.Further, the Chairman nominated under Rule 8 of the Rules is notempowered to exercise powers under Rule 53, considering the fact thatthere was a Deputy Speaker of the House who could have dischargedthe functions of the Speaker after his stepping down or during his absenceas per Article 180 of the Constitution. In that sense, the impugnedresolution dated 5.7.2021 is nullity and non est in the eyes of law, havingpassed without authority of law.

14. These writ petitions came up for preliminary hearing on14.12.2021. After hearing learned counsel for the petitioners and for theState of Maharashtra, the Court passed the following order:

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

These matters involve issues of moment for a Westminsterform of Democracy.

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It is urged by the petitioners that the impugned resolutionby the Maharashtra Legislative Assembly dated 05.07.2021 suffersfrom the vice of denial of opportunity of being heard and adherenceto the rules of natural justice.

It is also urged that the resolution neither follows theprocedure prescribed under Rule 53 of the Maharashtra LegislativeAssembly Rules (for short “The Rules”), namely, for suspensionof member of the House by the Speaker nor predicated in PartXVIII including Rule 273 to take action against the member forbreach of privilege of the House.

It is also urged that the power of Legislative Assemblythough absolute in certain respects, the decision reached by theHouse can always be questioned on the settled principles amongstothers being manifestly grossly arbitrary or irrational, violating thefundamental rights and such other grounds, as may be permissibleand delineated in the decision of the Constitution Bench of thisCourt in Raja Rampal Vs. Hon’ble Speaker, Lok Sabha & Ors.reported in (2007) 3 SCC 184, including the two Judge decision ofthis Case in Alagaapuram R. Mohan Raj & Ors. Vs. Tamil NaduLegislative Assembly & Anr. reported in (2016) 6 SCC 82. Further,for the nature of impugned resolution, it not only abridges therights of as many as twelve members, as guaranteed to themunder Article 194 of the Constitution of India, but also of theconstituencies represented by each of them by merely invokingthe route of majority opinion of the House, an unprecedented andunconventional move not backed by any similar precedent. In anycase, the period of suspension of one year is unconscionable andmanifestly arbitrary and irrational.

On the other hand, it is urged by the learned counsel for theState that Article 212(1) of the Constitution of India makes it amplyclear that it is not open to the Court to explore the argument ofproper procedure not followed by the House. Further, it is notopen to the Court to do judicial review of the final decision on thebasis 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 thepetitioners 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 thepetitioners.

All these are debatable issues and would require deeperconsideration.

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

Mr. Sachin Patil, Advocate waives notice for respondentNo. 2-State.

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

Needless to observe that pendency of these petitions willnot come in the way of the petitioners to explore the possibility ofurging upon the House to show leniency and reconsider the decisionimpugned in these writ petitions, at least, to the extent of reducingthe term specified therein. That is a matter to be considered bythe House appropriately.”

By this order, the Court had expressed a sanguine hopethat the matter would get resolved in the ensuing Session scheduledin the following week. Presumably, no effective headway hadbeen made in that regard.

15. It appears that notice sent to respondent No.1, as per officereport, has been duly served. We have been informed by the learnedcounsel appearing for the State as well as the petitioners that respondentNo.1 would not be appearing in the present proceedings. The respondent-State, however, is defending the impugned resolution by filing counteraffidavit dated 7.1.2022 sworn by Mr. Satish Baban Waghole, In ChargeSecretary, Parliamentary Affairs Department. The reply affidavit amongstothers points out that the issues raised by the petitioners are essentiallythe matters concerning procedure in the House of the LegislativeAssembly and at best regarding some procedural irregularities committedduring the proceedings. That cannot be the basis to invoke jurisdiction ofthis Court which is constricted by the mandate of Article 212 of theConstitution, as it concerns the powers and privileges of the House.Thus, the petitioners are not entitled for any relief under Article 32 of theConstitution.

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A16. It is urged that the suspension for unruly conduct in the Houseis not solely referrable to Rule 53 of the Rules. Whereas, it is open to theLegislature to depart from the Rules and take a decision which couldexceed the period prescribed in the Rules. The period of one yearsuspension cannot be said to be arbitrary or disproportionate as suchwhen the Legislature has the prerogative to reprimand or admonish itsBmembers, independent of the power of the Speaker of the House toorder withdrawal of members under the Rules. The House has the powerto take suitable action against its members who transgress the limits laiddown in Article 194(1) of the Constitution, being its inherent power andit is not open to the Judicature to have a second-guess approach in thatCregard.

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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 theunruly behaviour of the members of the Opposition including that of thepetitioners. The petitioners had committed acts which resulted inDundermining and maligning the dignity of the House in the face of theHouse and for which reason, the House decided to suspend the petitioners.In such a situation, there is no question of granting any opportunity ofhearing or for furnishing written explanation, being a case of contemptof the House on the face of it while it was in Session. The reply affidavitessentially rebuts the legal arguments of the petitioners and reiteratesEthe factual position emanating from the impugned resolution itself andurges this Court to dismiss the writ petitions being devoid of merits.

Submissions - Petitioners:

Submissions - Petitioners:

18. The petitioners are represented by Mr. Mahesh Jethmalani,FMr. Mukul Rohatgi, Mr. Neeraj Kishan Kaul and Mr. Siddharth Bhatnagar,learned senior counsel. The sum and substance of their submission is asfollows. First, the impugned resolution passed by the House is withoutjurisdiction. For, the power to suspend as per applicable Rules is bestowed“only” upon the Speaker of the House and as the Office of the Speakerwas vacant at the relevant time, upon the Deputy Speaker as per ArticleG180 of the Constitution. Further, the exercise of power by the Speaker isa quasi-judicial decision which must, therefore, precede with a formalinquiry, opportunity of hearing to the member concerned and recordingof satisfaction about the nature of misdeeds committed by the memberconcerned amounting to grossly disorderly conduct. In short, the House H

had no jurisdiction to pass the impugned resolution much less the mannerin which it has been passed, in undue haste. Second, no known orprescribed procedure has been followed to order withdrawal of themembers from the Assembly. Thus, a gross illegality has been committedby the House. The House is bound to adhere to the Rules framed by itfor that purpose under Article 208 of the Constitution. The applicableRules provide for different dispensation. The power to order withdrawalof its member, is provided in Rule 53 and regarding breach of its Privilegesis governed by Part XVIII of the Rules (vide Rules 273 to 289). A 15days’ notice regarding the motion introduced in the House is required tobe given under Part XII of the Rules being Rule 106 of the Rules. Noneof these have been followed in tabling of the subject motion and in passingthe impugned resolution. Thus, it is not a case of mere proceduralirregularity, but of being unconstitutional, grossly illegal and irrationalresolution adopted by the House including the direction to the petitionersto withdraw from the House for one year vide impugned resolution.Thirdly, there has been gross violation of principles of natural justice. Inthat, no opportunity whatsoever was afforded to the petitioners muchless a formal notice calling upon them to offer their explanation. Hadsuch an opportunity been given, it would have been possible for thepetitioners to demonstrate that they were not part of the unruly mobwhich had indulged in activities amounting to grossly disorderly conduct.

18. (a) It is also urged that at any rate the impugned resolutionsuspending the petitioners for a period of one year cannot becountenanced in law being unconstitutional, grossly illegal and irrational.Inasmuch as, Rule 53 provides for a graded approach to be adopted bythe Speaker for ensuring orderly conduct of business in the House bydirecting withdrawal of a member, who in his opinion, had or was creatingobstruction in that regard. Inasmuch as, if it is his first instance of suchtype, the Speaker could order his withdrawal for the remainder of theday’s meeting. In case of repeat misconduct during the same Session,the Speaker could order withdrawal of such member for the remainderof 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 suchabsence, is deemed to be absent with the permission of the Assemblywithin the meaning of clause (4) of Article 190 of the Constitution.However, the impugned resolution makes no reference to this aspect atall.

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A18.(b) On the stated position taken by the respondents that thepower 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 suspensionof the member of the House cannot go beyond the ongoing Session.Inasmuch as, excess and unnecessary period of suspension of the memberfrom the House is not only undesirable in the matter of democratic valuesBenunciated in the Constitution, but substantively or grossly illegal andirrational, if not bordering on perversity. For, longer period of suspensionbeyond the ongoing Session would not only be unnecessary, but nearerto being arbitrary, irrational and perverse. Taking any other view wouldentail in validating grossly illegal and irrational resolution of the House.CTo buttress this argument, support is drawn additionally from thedispensation predicated in the concerned Standing Order of the UnitedKingdom regarding the Parliamentary Procedure as well as extractsfrom Sir Thomas Erskine May’s Treatise on The Law, PrivilegesProceedings and Usage of Parliament. It is urged that the consequenceof absence of suspended member of the House beyond sixty days wouldDentail in vacation of the seat occupied by him/her, as predicated in Article190(4); and in which case, in law, the concerned constitutional Authoritywould be obliged to initiate process to fill in the vacant seat(s) not laterthan six months from the date of such vacancy in terms of Section 151A[5]of the Representation of the People Act, 1951[6]. This is essential also toEensure that the concerned constituency does not remain unrepresentedin the Legislative Assembly for more than six months owing to the actionagainst its duly elected representative by the House. Had it been a caseof expulsion, it would not have resulted in punishment either to theconcerned member or the constituency represented by him. For, themember concerned in that case could get re-elected to occupy the vacantFseat not later than six months. Thus understood, the timeline of suspension 5 151A. Time limit for filling vacancies referred to in sections 147, 149, 150 and151.— Notwithstanding anything contained in section 147, section 149, section 150and section 151, a bye-election for filling any vacancy referred to in any of the saidsections shall be held within a period of six months from the date of the occurrence ofGthe 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 thanone year; or (b) the Election Commission in consultation with the Central Governmentcertifies that it is difficult to hold the bye-election within the said period.H6 for short, “1951 Act”

of the petitioners prescribed in the impugned resolution is worst andoperates as inflicting penalty upon the petitioners as well as theconstituency represented by them. In other words, it is worse thanexpulsion of a member of the House.

18. (c) In the present case, learned counsel contends that the Househad to assemble for only two days of the ongoing Session. The suspension,therefore, ideally could not have been for a period more than the remainderof the Session in terms of Rule 53 of the Rules. Moreover, as the motionwas introduced in the House for initiating contempt, it ought to haveproceeded only under Part XVIII of the Rules by following procedureprescribed therein which includes giving opportunity of hearing to themember before the Committee of Privileges. If it was to be regarded asan ordinary motion, then the procedure under Rule 106 of the Ruleswould have required 15 clear days’ notice. Further, Rule 110[7] postulatesthat the resolution if moved by the Minister, it should precede with sevendays’ notice. Even this requirement had been violated. In either case,the impugned resolution suffers from the vice of denial of principles ofnatural justice, besides being arbitrary, perfunctory and founded onunsubstantiated allegations against the petitioners. To buttress thissubmission, reliance has been placed on the dictum in Alagaapuram R.Mohanraj[8].

18. (d) It is then urged that at any rate the time period of suspensionas specified in the impugned resolution is manifestly arbitrary and grosslydisproportionate and excessive, besides being grossly illegal andunconstitutional being hit by Articles 14 and 21 of the Constitution. For,the impugned resolution entails in denial of representation even to theconcerned constituency for such a long time, much less beyond the periodspecified in the Constitution [Article 190(4)] and the mandate ofconducting elections not later than six months from the date of vacancyvide Sections 150 and 151A of the 1951 Act. Reliance is placed onBarton vs. Taylor[9], Sushanta Kumar Chand & Ors. vs. The Speaker,Orissa Legislative Assembly and Anr.[10], M.S.M. Sharma vs. Sri 7 110. Government Resolutions.— (1) The provisions of rule 106 shall not apply toresolutions of which notice is given by a Minister or the Advocate General.

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

8 supra at Footnote No.3 (paras 38 to 42)

9 (1886) 11 AC 197

10 AIR 1973 Ori 111 (Division Bench)

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AKrishna Sinha & Ors.[11], Special Reference No.1 of 1964[12], JagjitSingh vs. State of Haryana & Ors.[13], Raja Ram Pal vs. Hon’bleSpeaker, Lok Sabha & Ors.[14]and Amarinder Singh vs. SpecialCommittee, Punjab Vidhan Sabha & Ors.[15].

18. (e) It was also argued that suspension of members beyond theBperiod specified in Rule 53 tantamounts to deviation from the logic statedtherein. And being a case of deviation from the applicable Rules, it wasessential to first suspend Rule 53. That could be done by way of a motionunder Rule 57[16]. Moreover, the general powers of the Speaker havebeen constricted in terms of Rule 58[17], namely, limited to matters notspecifically provided for in the rules.C

Submissions – Respondent (State of Maharashtra):

Submissions – Respondent (State of Maharashtra):

19. Mr. C. Aryama Sundaram, learned senior counsel appearingfor the State of Maharashtra, however, would urge that much argumentof the petitioners is founded on untenable assumption that the RulesDwere binding on the House; and it was not open to the House to proceeddehors the rules formulated under Article 208 of the Constitution. Hesubmits that it is open to the Legislature to deviate from the Rules, evenif framed under Article 208. Such rules are only akin to the byelaws ofthe society which are not enforceable nor can it be regarded as statutoryrules. Further, grounds of challenge set forth by the petitioners areEessentially questioning the procedure adopted by the House in adoptingthe impugned resolution. Such a challenge cannot be maintained norcould be entertained by the Court in light of bar under Article 212(1) inparticular. It is not open to the Court to question the decision of theHouse on the ground of irregularities in the procedure. For, the HouseF11 AIR 1959 SC 395 (5-Judge Bench) (paras 25,26,28 and 29)12 AIR 1965 SC 745 (7-Judge Bench) (paras 31,32,35,36,39 to 41,56,60,61,124 and125)

13 (2006) 11 SCC 1 (3-Judge Bench) (para 44)

14 (2007) 3 SCC 184 (5-Judge Bench)

15 (2010) 6 SCC 113 (5-Judge Bench) (paras 47,62,64 and 65)16 57. Suspension of rules.— Any member may, with the consent of the Speaker,Gmove that any rule may be suspended in its application to a particular motion beforethe House; and if the motion is carried, the rule in question shall be suspended for thetime being.

17 58. General Powers of Speaker.— All matters not specifically provided for inthese rules and all questions relating to the detailed working of these rules shall beregulated in such manner as the Speaker may, from time to time direct.H(emphasis supplied)

has the prerogative to adopt its own procedure even dehors the rulesframed under Article 208. In a given situation, the rules being proceduralrules can be deviated by the House, if the need so arises. The Court canonly enquire into the question as to whether the House had jurisdiction toadopt such a resolution and no further.

19. (a) He further submits that it is cardinal that the powers andprivileges of the House of Legislatures as delineated in Article 194 ofthe Constitution are non-justiciable, forming part of Chapter III (the StateLegislature) in Part VI of the Constitution. It is so mandated by Article212(1) of the Constitution. That gives enough room to the Legislature toadopt its own procedure for upholding the privileges of the House ofLegislature and its members which includes proceeding against evennon-member in case of breach. Thus, it is not open to even remotelysuggest that the Legislature lacks jurisdiction.

19. (b) He submits that the fact that Rule 53 of the Rules providesfor exercise of power by the Speaker to order withdrawal of member ingraded manner, that does not and cannot prevent the House from passinga resolution to even expel the erring member. Thus, the House cancertainly direct suspension of its member for a period beyond theremainder term of the Session. The Legislature while adopting suchresolution is not required to give any reason. For, no judicial review ofreasons which had weighed with the Legislature to pass the resolution ispermissible, unless it is further shown that the resolution adopted by theHouse is unconstitutional. In the present case, the House had adoptedresolution which is self-eloquent. In that, it mentions the necessity forpassing such a resolution of suspension of the petitioners for a term ofone year. The power has been exercised by the Legislature, which isinherent in it especially regarding the conduct of its business. Theimpugned resolution, therefore, is not unconstitutional. He would submitthat in the guise of asserting that the impugned resolution is irrational,the petitioners in effect are questioning the proportionality of the periodof suspension. This enquiry by the Court is impermissible. For, the decisionof the House regarding quantum or the period of suspension is non-justiciable

19. (c) He vehemently urged that this Court ought not to ventureinto the factual matrix and have a second-guess approach regarding theopinion expressed by the House in the impugned resolution. To buttresshis submissions, he has placed reliance on the decision of the Gujarat A

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AHigh Court in Jagdishbhai Thakore & Anr. vs. ChandrikabenChudasma & Ors.[18], which follows the exposition of the Division Benchof the same High Court in Chhabildas Mehta, M.L.A. vs. TheLegislative Assembly, Gujarat State[19]. He has also placed reliance onK.A. Mathialagan vs. P. Srinivasan & Ors.[20], A.M. Paulraj vs. TheSpeaker, Tamil Nadu Legislative Assembly, Madras & Anr.[21], K.BAnbazhagan & Ors. vs. The Secretary, The Tamil Nadu LegislativeAssembly, Madras & Ors.[22], V.C. Chandhira Kumar, Member ofLegislative Assembly & Ors. vs. Tamil Nadu Legislative Assembly,Secretariat & Anr.[23], Special Reference No.1 of 1964[24], KihotaHollohon vs. Zachilhu & Ors.[25], M.C. Mehta vs. Union of India &COrs.[25A], Raja Ram Pal[26]and Amarinder Singh[27].

20. He would further submit that the Maharashtra LegislativeAssembly even in the past on more than one occasion had passed similarresolution to suspend its member for one year period. That is the legitimateinherent power of the House in the matter of upholding its privilege.DArticle 190(3) prescribes no limitation in this regard. Further, theinvocation of Article 190(4) and Section 151A of the 1951 Act by thepetitioners, is completely misplaced. For, Article 190(4) has no applicationunless the absence of the member concerned is voluntary and withoutpermission of the House. Article 190(4) cannot override the powers andprivileges of the Legislature endowed in Article 190(3). Article 190(4) isEan enabling provision envisaging occurrence of vacancy only if theLegislature so resolves/decides, unlike ipso facto vacancy occurring insituations referred to in Article 190(1) to 190(3). For issuing declarationunder Article 190(4) that vacancy has arisen, it ought to be done by theLegislature if such recommendation is made by the Committee constitutedFunder Rule 229 of the Rules known as Committee on Absence of18 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 andG160)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 (5-Judge 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)H27 supra at Footnote No.15 (paras 54 and 66)

Members from the Sittings of the House. The functions of the statedCommittee are spelt out in Rule 230. The procedure noted in Rules 231and 232 is clearly indicative of the fact that the absence of the membermust be voluntary and without permission of the House. In fact, theperiod of absence noted in Article 190(4) is sixty days[28] of meetings andnot English calendar days. In this case, only seven days of meetings hadbeen conducted so far. Thus, invocation of Article 190(4) in the factsituation of the present case is unavailable. Further, in the case of absenceof member from the House owing to his/her suspension by the Housepresupposes that the House itself has restricted the entry of the concernedmember during the meetings and it can be safely regarded as deemedpermission of the House for absence for the relevant period. Similarly,the constituency cannot complain about its non-representation in the Househaving elected someone who conducts himself/herself inappropriately inthe meetings. In Raja Ram Pal[29], similar plea had been negatived.Concededly, suspended elected representative continues to representthe constituency from where he/she has been elected for all other purposesexcept attending the meetings owing to suspension. The argument ofthe petitioners is more fixed on the basis of morality approach. Thatcannot be countenanced. As a matter of law, the House has inherentpowers to direct suspension of its member for one year period and thereis no express bar or restriction provided for by the Constitution or byvirtue of any statutory provision. In substance, it is urged that the Courtcannot enquire into the grievances as made, essentially being about theirregularity of procedure in adopting the impugned resolution by the House.

21. We have heard learned counsel for the petitioners and therespondent-State. As aforesaid, respondent No.1 has chosen not toappear despite service.

Consideration:

22. The moot question is about the maintainability of the challengein respect of the stated resolution adopted by the Legislative Assembly.The scope of interference by the Court has been well-delineated insuccessive decisions of the Constitution Bench of this Court. This Courthas consistently expounded that the judicial scrutiny regarding exerciseof legislative privileges (including power to punish for contempt of the 28 Out of total 98-100 days in a year in three Sessions, namely, Budget, Monsoon andWinter altogether.29 supra at Footnote No.14

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AHouse) is constricted and cannot be stricto sensu on the touchstone ofjudicial review as generally understood in other situations. In that, thereis complete immunity from judicial review in matters of irregularity ofprocedure. The Constitution Bench of this Court in Raja Ram Pal[30]delineated the principles on the basis of catena of decisions noted in thesaid decision as follows:B

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

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

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

(b) The constitutional system of government abhors absolutismand it being the cardinal principle of our Constitution that noone, howsoever lofty, can claim to be the sole judge of theDpower given under the Constitution, mere coordinateconstitutional status, or even the status of an exaltedconstitutional functionaries, does not disentitle this Court fromexercising its jurisdiction of judicial review of actions whichpartake the character of judicial or quasi-judicial decision; E

(c) The expediency and necessity of exercise of power orprivilege by the legislature are for the determination of thelegislative authority and not for determination by the courts; (d) The judicial review of the manner of exercise of power ofcontempt or privilege does not mean the said jurisdiction isFbeing usurped by the judicature; (e) Having regard to the importance of the functions dischargedby the legislature under the Constitution and the majesty andgrandeur of its task, there would always be an initial presumptionthat the powers, privileges, etc. have been regularly andGreasonably exercised, not violating the law or the constitutionalprovisions, this presumption being a rebuttable one; (f) The fact that Parliament is an august body ofcoordinate constitutional position does not mean that H

there can be no judicially manageable standards toreview exercise of its power; (g) While the area of powers, privileges and immunitiesof the legislature being exceptional and extraordinaryits acts, particularly relating to exercise thereof, oughtnot to be tested on the traditional parameters of judicialreview in the same manner as an ordinary administrativeaction would be tested, and the Court would confine itselfto the acknowledged parameters of judicial review andwithin the judicially discoverable and manageablestandards, there is no foundation to the plea that alegislative body cannot be attributed jurisdictional error; (h) The judicature is not prevented from scrutinising the validityof the action of the legislature trespassing on the fundamentalrights conferred on the citizens;

(i) The broad contention that the exercise of privileges bylegislatures cannot be decided against the touchstone offundamental rights or the constitutional provisions is not correct; (j) If a citizen, whether a non-Member or a Member of thelegislature, complains that his fundamental rights under Article20 or 21 had been contravened, it is the duty of this Court toexamine the merits of the said contention, especially when theimpugned action entails civil consequences; (k) There is no basis to the claim of bar of exclusive cognizanceor absolute immunity to the parliamentary proceedings in Article105(3) of the Constitution;

(l) The manner of enforcement of privilege by the legislaturecan result in judicial scrutiny, though subject to the restrictionscontained in the other constitutional provisions, for exampleArticle 122 or 212; (m) Article 122(1) and Article 212(1) displace the broad doctrineof exclusive cognizance of the legislature in England ofexclusive cognizance of internal proceedings of the Houserendering irrelevant the case-law that emanated from courtsin that jurisdiction; inasmuch as the same has no application tothe system of governance provided by the Constitution of India; A

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

(o) The truth or correctness of the material will not bequestioned by the court nor will it go into the adequacy of thematerial or substitute its opinion for that of the legislature; (p) Ordinarily, the legislature, as a body, cannot be accused ofhaving acted for an extraneous purpose or being actuated bycaprice or mala fide intention, and the court will not lightlypresume abuse or misuse, giving allowance for the fact thatthe legislature is the best judge of such matters, but if in agiven case, the allegations to such effect are made, the courtmay examine the validity of the said contention, the onus onthe person alleging being extremely heavy; (q) The rules which the legislature has to make for regulatingits procedure and the conduct of its business have to be subjectto the provisions of the Constitution; (r) Mere availability of the Rules of Procedure and Conductof Business, as made by the legislature in exercise of enablingpowers under the Constitution, is never a guarantee that theyhave been duly followed; (s) The proceedings which may be tainted on account ofsubstantive or gross illegality or unconstitutionality arenot protected from judicial scrutiny; (t) Even if some of the material on which the action is taken isfound to be irrelevant, the court would still not interfere so longas there is some relevant material sustaining the action; (u) An ouster clause attaching finality to a determinationdoes ordinarily oust the power of the court to reviewthe decision but not on grounds of lack of jurisdiction orit being a nullity for some reason such as gross illegality,irrationality, violation of constitutional mandate, malafides, non-compliance with rules of natural justice andperversity.”

23. These principles have been restated by the subsequentConstitution Bench in Amarinder Singh[31], in paragraphs 53 and 54.Further, it would be useful to advert to the observations in paragraphs 87and 88 of the same decision in the context of the concerns about theintrusion into the powers of the Legislature. The same reads thus:

“Concerns about intrusion into the executive and judicialdomain

87. The doctrine of separation of powers is an inseparablepart of the evolution of parliamentary democracy itself.Renowned French philosopher Montesquieu had drawn theattention of political theorists to the dangers inherent in theconcentration of legislative, executive and judicial powers in oneauthority and stressed on the necessity of checks and balances inconstitutional governance. Our institutions of governance havebeen intentionally founded on the principle of separation ofpowers and the Constitution does not give unfetteredpower to any organ. All the three principal organs areexpected to work in harmony and in consonance with thespirit and essence of the Constitution. It is clear that alegislative body is not entrusted with the power ofadjudicating a case once an appropriate forum is inexistence under the constitutional scheme.

88. It would be pertinent to cite the following observations madeby M.H. Beg, J. (as His Lordship then was) in Indira NehruGandhi v. Raj Narain[32]: (SCC p. 149, para 392)

“392. … One of these basic principles seems to me tobe that, just as courts are not constitutionally competentto legislate under the guise of interpretation, so alsoneither our Parliament nor any State Legislature, in thepurported exercise of any kind of law-making power,perform an essentially judicial function by virtuallywithdrawing a particular case, pending in any court, andtaking upon itself the duty to decide it by an applicationof law or its own standards to the facts of that case. Thispower must at least be first constitutionally taken away from

32 1975 Supp SCC 1

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Athe court concerned and vested in another authority before itcan be lawfully exercised by that other authority. It is not anecessary or even a natural incident of a ‘constituent power’.As Hans Kelsen points out, in his ‘General Theory of Lawand the State’ (see p. 143), while creation and annulment ofall general norms, whether basic or not so basic, is essentiallyBa legislative function, their interpretation and application tofindings reached, after a correct ascertainment of facts involvedin an individual case, by employing the judicial technique, isreally a judicial function. Neither of the threeconstitutionally separate organs of State can, accordingCto the basic scheme of our Constitution today, leapoutside the boundaries of its own constitutionallyassigned sphere or orbit of authority into that of theother. This is the logical meaning of the principle ofsupremacy of the Constitution.””

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24. To the same end, dictum of the Constitution Bench in Sub-Committee on Judicial Accountability vs. Union of India & Ors.[33]may be apposite. In paragraph 61 of the reported decision, the Courtobserved thus:

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“61. But where, as in this country and unlike in England, there isa written Constitution which constitutes the fundamental and inthat sense a “higher law” and acts as a limitation upon thelegislature and other organs of the State as grantees under theConstitution, the usual incidents of parliamentary sovereigntyFdo not obtain and the concept is one of ‘limitedgovernment’. Judicial review is, indeed, an incident of andflows from this concept of the fundamental and the higherlaw being the touchstone of the limits of the powers of thevarious organs of the State which derive power and authorityunder the Constitution and that the judicial wing is theGinterpreter of the Constitution and, therefore, of the limitsof authority of the different organs of the State. It is to benoted that the British Parliament with the Crown is supreme and its powers are unlimited and courts have no power of judicialreview of legislation.”

The Court then noted that this doctrine is in one sense the doctrineof ultra vires in the constitutional law and in a federal set up, the judiciarybecomes the guardian of the Constitution. It enunciated that the rule inBradlaugh vs. Gossett[34] was inapplicable to proceedings of coloniallegislature governed by the written Constitution. In paragraph 66, theCourt expounded as follows:

“66. The principles in Bradlaugh[35] is that even a statutory right ifit related to the sphere where Parliament and not the courts hadexclusive jurisdiction would be a matter of the Parliament’s ownconcern. But the principle cannot be extended where thematter is not merely one of procedure but of substantivelaw concerning matters beyond the parliamentaryprocedure. Even in matters of procedure the constitutionalprovisions are binding as the legislations are enforceable.Of the interpretation of the Constitution and as to what law isthe courts have the constitutional duty to say what the lawis. The question whether the motion has lapsed is a matter to bepronounced upon the basis of the provisions of the Constitutionand the relevant laws. Indeed, the learned Attorney Generalsubmitted that the question whether as an interpretation of theconstitutional processes and laws, such a motion lapses or not isexclusively for the courts to decide.”

25. In the Indian context, the power of the Legislature is notabsolute, as noted by the Constitution Bench in Raja Ram Pal[36]inparagraph 398. The same reads thus:

“398. We are of the view that the manner of exercise of thepower or privilege by Parliament is immune from judicial scrutinyonly to the extent indicated in Article 122(1), that is to say thecourt will decline to interfere if the grievance brought before it is 34 (1884) 12 QBD 271: 50 LT 620

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Arestricted to allegations of “irregularity of procedure”. But in casegross illegality or violation of constitutional provisions isshown, the judicial review will not be inhibited in any mannerby Article 122, or for that matter by Article 105. If one wasto accept what was alleged while rescinding the resolution ofexpulsion by the Seventh Lok Sabha with the conclusion that itBwas “inconsistent with and violative of the well-accepted principlesof the law of parliamentary privilege and the basic safeguardsassured to all enshrined in the Constitution”, it would be apartisan action in the name of exercise of privilege. We arenot going into this issue but citing the incident as an illustration.”

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After having said as above, the Court proceeded to examine theextent of circumspection to be observed by the courts. That had beenexposited in following words:

“414. In State of Rajasthan v. Union of India[37] while dealingwith the issues arising out of communication by the then UnionHome Minister to the nine States asking them to advise theirrespective Governors to observe the Legislative Assemblies andtherefore seek mandate from the people, this Court observed inpara 40 as under: (SCC p. 616)

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“40. This Court has never abandoned its constitutionalfunction as the final judge of constitutionality of all actspurported to be done under the authority of theConstitution. It has not refused to determine questions eitherof fact or of law so long as it has found itself possessed ofFpower to do it and the cause of justice to be capable of beingvindicated by its actions. But, it cannot assume unto itselfpowers the Constitution lodges elsewhere or undertaketasks entrusted by the Constitution to other departmentsof State which may be better equipped to perform them.GThe scrupulously discharged duties of all guardians of theConstitution include the duty not to transgress the limitationsof their own constitutionally circumscribed powers bytrespassing into what is properly the domain of otherconstitutional organs. Questions of political wisdom or executive policy only could not be subjected to judicial control.No doubt executive policy must also be subordinated toconstitutionally sanctioned purposes. It has its sphere andlimitations. But, so long as it operates within that sphere, itsoperations are immune from judicial interference. This is alsoa part of the doctrine of a rough separation of powers underthe supremacy of the Constitution repeatedly propounded bythis Court and to which the Court unswervingly adheres evenwhen its views differ or change on the correct interpretationof a particular constitutional provision.”

415. We reaffirm the said resolve and find no reason why inthe facts and circumstances at hand this Court should takea different view so as to abandon its constitutional functionsas the final judge of constitutionality of all acts purportedto be done under the authority of the Constitution, thoughat the same time refraining from transgressing into thesphere that is properly the domain of Parliament.

416. Learned Additional Solicitor General submits that in U.P.Assembly case (Special Reference No. 1 of 1964)[38] the Courthad placed reliance on Articles 208 and 212 which contemplatethat rules can be framed by the legislature subject to theprovisions of the Constitution which in turn implies thatsuch rules are compliant with the fundamental rightsguaranteed by Part III. He submits that if the rules framedunder Article 118 (which corresponds to Article 208) areconsistent with Part III of the Constitution then the exerciseof powers, privileges and immunities is bound to be a fairexercise and Parliament can be safely attributed such anintention.

417. While it is true that there is no challenge to the Rules ofProcedure and Conduct of Business in Lok Sabha and the Rulesof Procedure and Conduct of Business in the Council of States,as made by the two Houses of Parliament in exercise of enablingpowers under Article 118(1), we are of the opinion that mereavailability of rules is never a guarantee that they have AB

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Abeen duly followed. What we are concerned with, given thelimits 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 BenchBdecisions referred to above, it is not possible to countenance thesubmission of the learned counsel for the respondent-State that the enquirymust be limited to one of the parameters specified in Raja Ram Pal[39]and, in this case, only clause (s) – “The proceedings which may betainted on account of substantive or gross illegality or unconstitutionalityCare not protected from judicial scrutiny”. On the other hand, we lean infavour of taking the view that each of the parameters is significant andpermissible area of judicial review in relation to exercise of parliamentaryprivileges including clauses (f), (g), (s) and (u). In one sense, clause (u)is a comprehensive parameter articulated by the Constitution Bench inRaja Ram Pal[40], as it predicates that “an ouster clause attaching finalityDto a determination does ordinarily oust the power of the court to reviewthe decision but not on grounds of lack of jurisdiction or it being a nullityfor some reason such as gross illegality, irrationality, violation ofconstitutional mandate, mala fides, non-compliance with rules of naturaljustice and perversity”.E

27. The Constitution, by itself, does not specify the limitation onthe privileges of the Legislature, but, indubitably, those privileges aresubject to the provisions of the Constitution (as is predicated in the openingpart of Article 194(1) as also in Article 208(1) requiring the House of theLegislature to make rules for regulating its procedure), which ought toFinclude the rights guaranteed to the citizens under Part III of theConstitution. The moment it is demonstrated that it is a case of infractionof any of the rights under Para III of the Constitution including ascribableto Articles 14 and 21 of the Constitution, the exercise of power by theLegislature would be rendered unconstitutional. For attracting Articles14 and 21 of the Constitution, it is open to the petitioner to demonstrateGthat the action of the Legislature is manifestly arbitrary. The arbitrarinesscan be attributed to different aspects. Applying that test, it could be acase of irrationality of the resolution/decision of the House. Indeed, in

this case, the Court is not called upon to enquire into the proportionalityof such a resolution/decision.

28. There is marked distinction between the expression “rational”and “proportional”. The expression “proportion” is derived from a latinword “proportio” or “proportionalis”. It means corresponding in sizeor amount to something else. To wit, the punishment should be proportionalto the crime — whereas, expression “rational” is derived from a latinword “ratio” or “rationalis”. It means action is based on or inaccordance with the reason or logic or so to say sensible or logical. Therationality of action can be tested, both on the ground of power inheringin the Legislature and the exercise of that power.

29. Keeping the stated principles in mind, we must proceed toanalyse the grounds of challenge in these petitions. The foremost groundis that it is imperative for the House to adhere to the procedure prescribedin the Rules framed by the House under Article 208 of the Constitution.

30. The Constitution Bench of this Court in M.S.M. Sharma[41]had occasion to deal with the efficacy of the rules so framed underArticle 208 of the Constitution. In paragraph 29[42], the Court noted thatArticle 194(3) read with rules framed under Article 208 had laid down

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 statedabove, to avail himself of Art. 19(1)(a) to support this application, learned advocatefor the petitioner falls back upon Art. 21 and contends that the proceedings before theCommittee of Privileges threaten to deprive him of personal liberty otherwise than inaccordance with procedure established by law. The Legislative Assembly claims thatunder Art. 194(3) it has all the powers, privileges and immunities enjoyed by theBritish House of Commons at the commencement of our Constitution. If it has thosepowers, privileges and immunities, then it can certainly enforce the same, as the Houseof Commons can do. Article 194(3) confers on the Legislative Assembly thosepowers, privileges and immunities and Art. 208 confers power on it to framerules. The Bihar Legislative Assembly has framed rules in exercise of its powersunder that Article. It follows, therefore, that Art. 194(3) read with the rules soframed has laid down the procedure for enforcing its powers, privileges andimmunities. If, therefore, the Legislative Assembly has the powers, privilegesand immunities of the House of Commons and if the petitioner is eventuallydeprived of his personal liberty as a result of the proceedings before the Committeeof Privileges, such deprivation will be in accordance with procedure establishedby law and the petitioner cannot complain of the breach, actual or threatened, ofhis Fundamental Right under Art. 21.

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Athe procedure for enforcing its powers, privileges and immunities. Further,the Legislative Assembly has the powers, privileges and immunities ofthe House of Commons and if the petitioner is deprived of his personalliberty as a result of the proceedings before the Committee of Privileges,such deprivation will be in accordance with procedure established bylaw and the petitioner cannot complain of the breach, actual or threatened,Bof his fundamental right under Article 21. This dictum presupposes thataction taken under the rules framed under Article 208 of the Constitutionand in conformity therewith is compliance of the procedure establishedby law for the purpose of Article 21 of the Constitution.

31. In Ratilal Bhanji Mithani vs. Asstt. Collector of Customs,CBombay & Anr.[43], the Constitution Bench restated the aforenoted positionin the following words:

“….. As explained in Pandit Sharma’s case[44], these powersand the procedure prescribed by the rules has the sanctionof enacted law and an order of committal for contempt ofDthe 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 toframe rules. The Bihar Legislative Assembly has framed rules inEexercise of its powers under that Article. It follows, therefore,that Art. 194(3) read with the rules so framed has laid down theprocedure for enforcing its powers, privileges and immunities. If,therefore, the Legislative Assembly has the powers, privilegesand immunities of the House of Commons and if the petitioner iseventually deprived of his personal liberty as a result of theFproceedings before the Committee of Privileges, such deprivationwill be in accordance with procedure established by law and thepetitioner cannot complain of the breach, actual or threatened, ofhis fundamental right under Art. 21.” Subba Rao, J. in his minorityjudgment in that case and the Court in Special Reference No. 1Gof 1964[45] did not say anything to the contrary on this point.”

43 (1967) 3 SCR 926 (at p. 929)

44 supra at Footnote No.11

H45 supra at Footnote No.12

32. It is settled law that even rules made to exercise the powersand privileges of State Legislature constitute law within the meaning ofArticle 13. This is exposited in Special Reference No.1 of 1964[46]. It isheld that when the State Legislatures purport to exercise this power,they will undoubtedly be acting under Article 246 read with Entry 39 ofList II. The enactment of such a law will, therefore, have to be treatedas a law within the meaning of Article 13.

33. In the backdrop of these observations, the plea taken by theState that the rules are neither statutory rules nor binding on the Housewill be of no avail. Indeed, the Constitution Bench of this Court in Sub-Committee on Judicial Accountability[47]in paragraph 94 noted asfollows:

“94. Second view is to be preferred. It enables the entire processof removal being regulated by a law of Parliament — ensuresuniformity and reduces chances of arbitrariness. Article 118 is ageneral provision conferring on each House of Parliamentthe power to make its own rules of procedure. These rulesare not binding on the House and can be altered by theHouse at any time. A breach of such rules amounts to anirregularity and is not subject to judicial review in view ofArticle 122.”

These observations have been noted while deliberating over thelegal question as to whether the law made by the Parliament in thematter of removal of a judge of the High Court ought to prevail over theRules framed by the House under Article 118 (corresponding to Article208, applicable to State Legislative Assembly). This Court held that theparliamentary law is of higher quality and efficacy than the Rules underArticle 118. This, however, had not whittled down the legal expositionthat the Rules framed by the Legislative Assembly under Article 208 ofthe Constitution is the procedure established by law for the purpose ofArticle 21 of the Constitution.

34. Be that as it may, it is well-settled that the rules so framed canbe 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

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Aframed under Article 208 of the Constitution. At the same time,proceedings inside the Legislature cannot be called into question on theground that the same have not been carried on in accordance with therules of business as restated in Kihota Hollohon[48]. It is, however, enoughfor the present to observe that the rules framed under Article 208 acquirethe status of procedure established by law for the purpose of Article 21Bof the Constitution as noticed in M.S.M. Sharma[49]. This observationhas been quoted with approval by another Constitution Bench again inRaja Ram Pal[50], inter alia, in paragraphs 53, 167, 338, 416 and 417.

35. Viewed thus, even though the Legislature has the prerogativeto deviate from the rules including to alter the rules; until then, and evenCotherwise, it is expected to adhere to the “express substantive stipulation”(which is not mere procedure) in the rules framed under Article 208 ofthe Constitution and the principle underlying therein, being procedureestablished by law.

36. As aforesaid, the dispensation prescribed under the Rules toDexercise power to order withdrawal of member (suspension) is ascribableto Rule 53 of the Rules which reads thus:

“53. Power to order withdrawal of member.— The Speakermay direct any member who refuses to obey his decision, or whoseconduct is, in his opinion, grossly disorderly, to withdrawEimmediately from the Assembly and any member so ordered towithdraw shall do so forthwith and shall absent himself during theremainder of the day’s meeting. If any member is ordered towithdraw a second time in the same Session, the Speakermay direct the member to absent himself from the meetings ofFthe Assembly for any period not longer than the remainderof the Session, and the member so directed shall absent himselfaccordingly. The member so directed to be absent shall, duringthe period of such absence, be deemed to be absent with thepermission of the Assembly within the meaning of clause (4) ofArticle 190 of the Constitution.”G

48 supra at Footnote No.25 (para 42)

49 supra at Footnote No.11

H50 supra at Footnote No.14

This Rule not only speaks about the procedure to be adopted forpassing the drastic order of withdrawal of a member from the Housebut also about the substantive disciplinary or the rationality of the self-security measure to be taken in a graded (objective standard) manner.The non-compliance of or deviation from the former (procedure) maybe non-justiciable. However, in regard to the substantive disciplinary orthe rationality of the self-security measure inflicted upon the erringmember, is open to judicial review on the touchstone of beingunconstitutional, grossly illegal and irrational or arbitrary.

37. In terms of above Rule, the power is exercised by the Speakerbeing a quasi-judicial order directing the member to withdraw from themeetings of the Assembly. The Speaker is expected to exercise thispower only in case of conduct of the member being “grossly disorderly”and in a graded objective manner. The raison d’etre is to ensure thatthe business of the House on the given day or the ongoing Session, asthe case may be, can be carried on in an orderly manner and withoutany disruption owing to misconduct of one or more members. Theexpression used in the stated Rule is “grossly disorderly”.

38. The expression “grossly disorderly” has not been defined inthe Rules. The meaning of expression “gross” as given in the Black’sLaw Dictionary[51] reads thus:

“gross, adj. (14c) 1. Conspicuous by reason of size or otherattention-getting 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 grossestimate>. 4. Coarse in meaning or sense <gross slang>. 5.Repulsive in behavior or appearance; sickening <a gross fellowwith gross habits>. 6. Beyond all reasonable measure; flagrant<a gross injustice>.”

“Grossly”, is an adverb and indicative of relatively higher degreeof misconduct or so to say extremely wrong and deviant.

39. The expression “disorder” as defined in Black’s LawDictionary[52] is as follows:

“disorder. (1877) 1. A lack of proper arrangement <disorder ofthe files>. 2. An irregularity <a disorder in the proceedings>. 3. A51 11th Edition52 11th Edition A

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Apublic disturbance; a riot. See CIVIL DISORDER. 4. Adisturbance 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:

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

In the Concise Oxford Dictionary[54], the expression “disorderly”has been defined thus:

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

The expression “disorderly conduct” as defined in Black’s LawDictionary[55] is as follows:

D“disorderly conduct. See CONDUCT

Conduct, n. (15c) Personal behavior, whether by action orinaction, verbal or nonverbal; the manner in which a personbehaves; collectively, a person’s deeds. · Conduct does not includethe actor’s natural death or a death that results from behaviorEconsciously engaged in but not reasonably expected to have thisresult. — conduct, vb.”

40. Taking the totality of the meaning of expressions “grossly”and “disorderly”, it must follow that the conduct of the member is suchthat it was impeding the smooth or orderly functioning of the House, andFmay also be of such a nature that it is likely to bring disrepute to theHouse. It may involve varied situations and, therefore, implied exerciseof rational corrective mechanism is quintessential. The action ofsuspension or directing withdrawal of a member from the meetings ofthe Assembly is in the nature of self-security and is essentially directedto ensure that the House can then protect itself against obstruction, orGdisturbance of its ongoing proceedings owing to the misconduct of anyof its members. That power is different from the privilege to inflictpunishment on a member, which may require higher degree of deprivation53 6th Edition54 8th EditionH55 11th Edition of the member over and above participating in the proceedings of theHouse during the Session. In a given case, it can be in the form ofexpulsion being the highest degree of exclusion of the member from theHouse. Yet another would be penal, in case of ordering imprisonmentowing to act of contempt of the House. We shall elaborate on this aspecta little later while dealing with the challenge on the ground of impugnedresolution being grossly irrational.

41. Suffice it to observe that Rule 53 of the Rules provides for agraded (rational and objective standard) approach to be adopted by theSpeaker for ensuring orderly conduct of the business of the House. Inthe present case, however, the Minister for Parliamentary Affairsintroduced a motion in the House for initiating action for contempt of theHouse, which the Chairman allowed it to be put to vote instantly at 14:40hours on the same day and it was passed by the House by majority in notime. Indeed, if it is a case of grossly disorderly behaviour in the House,the Speaker/Chairman himself is free to take instantaneous decision toorder withdrawal of the member from the meetings of the Assemblyduring the remainder of the day’s meeting and if it is a case of repeatmisconduct in the same Session — for the remainder of the Session.

42. Concededly, there is nothing in the constitutional scheme orthe rules framed under Article 208 to prevent a member of the House tomove a motion for directing withdrawal of a member on the ground ofhis grossly disorderly conduct. Further, if the Speaker can suo motudirect the member to withdraw from the Assembly on the same dayinstantly to secure smooth functioning of the proceedings, for the samelogic, even the House could pass a resolution itself on a motion beingmoved by a member of the House instantly with the concurrence of theSpeaker on such a motion.

43. In the present case, the Chairman entertained the subjectmotion and called upon the House to vote thereon, which had the effectof giving tacit consent if not explicit concurrence to the same. In thatsense, it is not a case of resolution passed by the House (to suspend itsmembers) as being without jurisdiction. It is a different matter that if theSpeaker/Chairman was to do so, it could be only under Rule 53 in agraded manner for the remainder of the day and for repeat misconductin the same Session — for the remainder of the Session. That would bea logical and rational approach consistent with the constitutional tenets.

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A44. If the House takes upon itself to discipline its members, it isexpected to adopt the same graded (rational and objective standard)approach on the lines predicated in Rule 53. That would be a case ofrational action taken by the House as per the procedure established bylaw. The expression “rational” is defined in Black’s Law Dictionary[56] asfollows:B

“rational, adj. (14c) 1. Endowed with the faculties of cognitiontraditionally thought to distinguish humans from the brutes <manas a rational being>. 2. Based on logic rather than emotion; attainedthrough clear thinking; not absurd, preposterous, foolish, or fanciful<a rational conclusion>. 3. (Of a person) able to think clearly andCsensibly; clear-headed and right-minded <Jones was rational at the time of the woman’s death>.”

As opposed to a rational decision, it would be a case of irrationalor preposterous approach. The expression “irrational” as defined inBlack’s Law Dictionary[57] is as follows:D

“irrational, adj. (16c) Not guided by reason or by a fairconsideration 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 considerationEof or regard for facts, circumstances, fixed rules, or procedures.2. (Of a judicial decision) founded on prejudice or preferencerather than on reason or fact.

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

F45. A priori, if the resolution passed by the House was to providefor suspension beyond the period prescribed under the stated Rule, itwould be substantively illegal, irrational and unconstitutional. In that, thegraded (rational and objective standard) approach predicated in Rule 53is the benchmark to be observed by the Speaker to enable him to ensuresmooth working of the House, without any obstruction or impedimentGand for keeping the recalcitrant member away from the House for aperiod maximum upto the remainder of the entire Session.

56 11th EditionH57 11th Edition

46. Inflicting suspension for a period “beyond the period necessary”than to ensure smooth working/functioning of the House during theSession “by itself”; and also, as per the underlying objective standardspecified in Rule 53, indubitably, suffer from the vice of being grosslyirrational measure adopted against the erring member and alsosubstantively illegal and unconstitutional.

47. It is a different matter if the House had ended up withresolution of expulsion of the member, which power in a given situationit could legitimately exercise, as held in Raja Ram Pal[58]. That actionwould not visit the member with disqualification and also allow him toget re-elected from the same constituency within the statutory period ofsix months from the date of vacation of his seat. However, if it is a caseof suspension for a period beyond the remainder of the Session, it wouldentail in unnecessary (unessential) deprivation. And longer or excessivedeprival would not only be regarded as irrational, but closer to or borderingon perversity. Resultantly, such an action would be violative of procedureestablished by law and also manifestly arbitrary, grossly irrational andillegal and violative of Articles 14 and 21 of the Constitution.

48. Be it noted that suspension beyond the remainder period ofthe ongoing Session would not only be grossly irrational measure, butalso violative of basic democratic values owing to unessential deprivationof the member concerned and more importantly, the constituency wouldremain unrepresented in the Assembly. It would also impact thedemocratic setup as a whole by permitting the thin majority Government(coalition Government) of the day to manipulate the numbers of theOpposition Party in the House in an undemocratic manner. Not onlythat, the Opposition will not be able to effectively participate in thediscussion/debate in the House owing to the constant fear of its membersbeing suspended for longer period. There would be no purposeful ormeaningful debates but one in terrorem and as per the whims of themajority. That would not be healthy for the democracy as a whole.

49. It is well-established that fundamental rights are guaranteedby Part III of the Constitution, out of which Articles 14, 19 and 21 arethe most frequently invoked to test the validity of the executive as wellas legislative actions when these actions are subjected to judicial scrutiny.Different Articles in the Constitution under chapter Fundamental Rightsand the Directive Principles in Part IV ought to be read as an integral

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Aand incorporeal whole with possible overlapping with the subject matterof what is to be protected by its various provisions particularly thefundamental rights. The sweep of Article 21 is expansive enough togovern the action of dismembering a member from the House of theLegislative Assembly in the form of expulsion or be it a case of suspensionby directing withdrawal from the meeting of the Assembly for theBremainder of the Session.

50. Be that as it may, it is evident from the impugned resolutionthat it has been passed by the majority votes in the House immediatelyafter it was put to vote by the Chairman. It was in fact introduced as amotion for initiating action for having committed contempt of the HouseCwhich ordinarily ought to have proceeded under Part XVIII of the Rulesdealing with Privileges. That would have required constitution of aCommittee of Privileges to enquire into the entire matter by givingopportunity of hearing to the persons concerned. Instead of adoptingthat procedure, the House itself chose to direct withdrawal of theDpetitioners from the meetings of the Assembly for a period of one year— which direction is neither ascribable to the dispensation prescribed inPart XVIII of the Rules or Rule 53 enabling the Speaker to do so.

51. As aforementioned, it is not a case of procedural irregularityas such. Whereas, the decision taken by the House in this case, is one ofEsubstantive illegality in directing suspension beyond the period ofremainder of the Session in which the motion was presented. We say sobecause, the period of suspension in excess of the period essential to doso much less in a graded manner including on principle underlying Rule53, would be antithesis to rational or objective standard approach forensuring orderly functioning of the House during the ongoing Session.F

52. Reverting to the challenge to the impugned resolution beinggrossly irrational. As noticed earlier, Rule 53 provides for a graded(rational and objective standard) approach. The timeline as specified inRule 53 is with a view to address the immediate concern of the Housefor ensuring orderly conduct of the business of the House in the givenGSession. This action is implied on the doctrine of necessity. The Speakerand for that matter, even the House as a whole or by majority, would bewithin its power to resort to such a mechanism being rational measure.Exceeding the stated timeline is a substantive matter and not a proceduralirregularity. It would raise a basic question as to what purpose would beHserved by withdrawing the member from the House for successive Sessions falling within that period of one year. Indeed, if the conduct ofthe member is gross warranting his removal from the Assembly evenbeyond the period of sixty days [Article 190(4)] or six months (Section151A of the 1951 Act), the House is capable of invoking its inherentpower of expulsion of such a member, which is a greater power.

53. Indubitably, suspension for a day or for the remainder of theSession, 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 includepower to suspend the member beyond the period essential to keep him/her away from the Assembly for ensuring orderly conduct of the businessof the House. As expounded in Amarinder Singh[59], the importantconsideration for scrutinising the exercise of legislative privileges iswhether the same is necessary to safeguard the integrity of the legislativefunctions. This Court had recognised that the Legislature’s power topunish for its contempt was not untrammelled. That power of legislativechamber to punish for its own contempt must coincide with theLegislature’s interest in protecting the integrity of its function. In otherwords, the suspension of a member must be preferred as a short-termor a temporary measure for restoring order in the functioning of theconcerned Assembly Session for completing its scheduled business withintime and by way of disciplinary measure against the incorrigiblemember(s).

54. The word “suspension” is necessarily linked to attendance ofthe member in the House. Thus, the suspension may be resorted tomerely for ensuring orderly conduct of the business of the House duringthe concerned Session. Anything in excess of that would be irrationalsuspension. This is so because the member represents the constituencyfrom where he has been duly elected and longer suspension would entailin deprivation of the constituency to be represented in the House. It istrue that right to vote and be represented is integral to our democraticprocess and it is not an absolute right. Indeed, the constituency cannothave any right to be represented by a disqualified or expelled member.However, their representative cannot be kept away from the House inthe guise of suspension beyond the necessary (rational) period linked tothe ongoing Assembly Session, including the timeline referred to in Article190(4) of the Constitution and Section 151A of the 1951 Act.

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

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A55. Be that as it may, suspension is essentially a disciplinarymeasure. It must follow that suspension for a period of one year wouldassume the character of punitive and punishment worse than expulsion.For, suspension for long period and beyond the Session has the effect ofcreating a de facto vacancy though not a de jure vacancy. The argumentof the State that despite suspension from the House, the members wouldBcontinue to discharge all other functions outside the House as an electedrepresentative. This plea, in our view, is tenuous. For, the effect of suchsuspension is visited not only on the constituency that goes unrepresentedfor potentially long and unessential time, but also on the functioning ofthe Assembly itself. Apart from a role in bringing to light the specialCneeds or difficulties of the constituency, a member also plays a role invarious motions, debates, votes, etc.[60]. In any case, this plea cannotwhittle down the logic requiring limited action essential for orderlyfunctioning of the House on the given day or at best, the Session forcompletion of its scheduled business for the relevant Session.

D56. Suffice it to observe that one-year suspension is worse than“expulsion”, “disqualification” or “resignation” — insofar as the right ofthe constituency to be represented before the House/Assembly isconcerned. In that, long suspension is bound to affect the rights harsherthan expulsion wherein a mid-term election is held within the specifiedtime in terms of Section 151A of the 1951 Act, not later than six months.EThus, the impugned resolution is unreasonable, irrational, and arbitraryand liable to be set aside.

57. Having said this, we may now turn to two decisions of thePrivy Council referred to and discussed by the Constitution Bench inRaja Ram Pal[61], in paragraphs 284 to 293. The same reads thus:

F60 Some of the functions of the elected representative in the House/Assembly (takenfrom the Maharashtra Legislative Assembly Rules) would indicate that the memberwould 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 (Rules33,34); (c) Asking Questions on Statements made by Ministers (Rule 47); (d) Makingof personal explanations (Rule 48); (e) Questions on matters of public concern fromGMinisters (Rule 68); (f) Short Notice questions for immediate reply on questions ofurgent nature (Rule 86); (g) Private member bills (Rule 111); (h) Discussions onmatters of sufficient public importance (Rule 94); (i) No confidence motions (Rule95); (j) Adjournment motions (Rule 97); (k) Participation as members of Committees,including the Committee for consideration of matters of public importance, BusinessAdvisory Committee, Public Accounts Committee, Committee on Estimates, etc (PartXV of the Rules).H61 supra at Footnote No.14

“284. Finally, in Barton[62] it involved the suspension of a Memberfrom the Legislative Assembly of New South Wales. The powerof suspension for an indefinite time was held to be unavailable tothe Legislative Assembly as it was said to have trespassed intothe punitive field. The judgment was delivered by the Earl ofSelborne. Referring to Kielley[63] and Doyle[64] the Court observed:

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

Powers to suspend toties quoties, sitting after sitting, incase of repeated offences (and, if may be, till submission orapology), and also to expel for aggravated or persistentmisconduct, appear to be sufficient to meet even the extremecase of a Member whose conduct is habitually obstructiveor disorderly. To argue that expulsion is the greaterpower, and suspension the less, and that the greater mustinclude all degrees of the less, seems to their Lordshipsfallacious. The rights of constituents ought not, in aquestion of this kind, to be left out of sight. Those rightswould be much more seriously interfered with by anunnecessarily prolonged suspension than by expulsion,after which a new election would immediately be held.”

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

286. The learned counsel for the petitioners have relied on theabove distinction and submitted that the limited power does notenvisage expulsion and can only be used for ex facie contempts.

287. We are not persuaded to subscribe to the propositionsadvanced on behalf of the petitioners. Even if we were to accept

63 Edward Kielley vs. William Carson, (1842) 4 Moore PC 63 : 13 ER 225

64 Thomas William Doyle vs. George Charles Falconer, (1865-67) LR 1 PC 328 : 36LJPC 33 : 15 WR 366

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Athis distinction as applicable to the Indian Parliament, in our opinion,the power to expel would be available.

288. Firstly, Barton[65] which allows only a limited power topunish for contempt, finds that even though the LegislativeAssembly does not have the power to indefinitely suspend,as that was punitive in nature, the Assembly would havethe power to expel, considering expulsion a non-punitivepower. Secondly, the objection that the limited power couldonly deal with ex facie contempt, is not tenable.

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289. In the above context, reference may be madeto Harnett v. Crick[66]. This case involved the suspension of aMember of the Legislative Assembly of New South Wales untilthe verdict of the jury in the pending criminal trial against theMember had been delivered. The suspension was challenged.When the matter came up before the Privy Council, the respondentsargued that:

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

290. This argument was rejected and the House of Lords allowedFthe appeal. Lord MacNaghten, delivering the judgment, initiallyobserved that:

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

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

66 Lawrence Joseph Harnett vs. William Patrick Crick, 1908 AC 470 : 78 LJPC 38 : 99HLT 601 (PC)

“If the House itself has taken the less favourable viewof the plaintiff’s attitude [an insult and challenge to theHouse], and has judged that the occasion justifiedtemporary suspension, not by way of punishment, but inself-defence, it seems impossible for the Court to declarethat the House was so wrong in its judgment, and the StandingOrder and the resolution founded upon it so foreign to thepurpose contemplated by the Act, that the proceedings mustbe declared invalid.”(476)

292. The above case thus establishes that even if the Houseof legislature has limited powers, such power is not onlyrestricted to ex facie contempts, but even acts committedoutside the House. It is open to the Assembly to use itspower for “protective” purposes, and the acts that it canact upon are not only those that are committed in the House,but upon anything that lowers the dignity of the House. Thus,the petitioners’ submission that House only has the power toremove obstructions during its proceedings cannot be accepted.

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

(emphasis supplied in bolds)

(emphasis supplied in bolds)

The two decisions of the Privy Council (Barton[67]and LawrenceJoseph Harnett[68]) were pressed into service in that case to answer theplea that the Legislature has inherent limited remedial power to punishfor contempt by way of suspension of its member and cannot resort toexpulsion of the member. The Constitution Bench noticed that even these

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Atwo decisions of the Privy Council, recognised inherent power of theLegislature to expel its member and, thus, negatived the plea of thepetitioner in that regard. This Court after analysing the said decisionsconcluded that the Legislatures established in India by the Constitution,including Parliament under Article 105(3), need not be denied the claimto the power of expulsion arising out of remedial power of contempt.B

58. What emerges from the stated conclusion is that theConstitution Bench declared that the inherent power of the Legislatureis not absolute, but limited remedial power to punish for contempt and totake such measures as are necessary for orderly functioning of theproceedings of the House.C

59. The case of Barton[69]has been noticed in paragraph 284,which in turn had dealt with suspension of the member from the LegislativeAssembly of the New South Wales. In that case, the resolution passedby the House did not mention about the time frame of suspension of themember. That was challenged by the aggrieved member being irrationalDand unnecessary. That plea was considered by the Privy Council keepingin mind its earlier decisions in Edward Kielley[70]and Thomas WilliamDoyle[71]. (These decisions have been adverted to in paragraph 283 bythe Constitution Bench as well). After noticing these decisions, the PrivyCouncil in Barton[72]noted that those authorities had dealt with situationEthat no powers of that kind are incident to or inherent in a ColonialLegislative Assembly (without express grant), except such as arenecessary to the existence of such a body, and the proper exercise ofthe functions which it is intended to execute.

60. It must follow that in absence of any express provisionFbestowing power in the Legislature to suspend its member(s) beyondthe term of the ongoing Session, the inherent power of the Legislaturecan be invoked only to the extent necessary and for proper exercise ofthe functions of the House at the relevant point of time. No more. Forthat purpose, it could resort to protective and self-defensive powers aloneand not punitive at all. This logic is reinforced from the dictum in Barton[73]Gwherein the Privy Council noted as follows:

H73 supra at Footnote No.9

“…‘‘If a member of a Colonial House of Assembly is guilty ofdisorderly conduct in the House while sitting, he may be removedor excluded for a time, or even expelled …. The right to removefor self-security is one thing, the right to inflict punishment is another…. If the good sense and conduct of the members of ColonialLegislatures prove insufficient to secure order and decency ofdebate, the law would sanction the use of that degree of forcewhich might be necessary to remove the person excluded fromthe place of meeting, and to keep him excluded.””[74]

61. The Privy Council in the same decision then proceeded toobserve as follows:

61. The Privy Council in the same decision then proceeded toobserve as follows:

“… The principle on which the implied power is givenconfines it within the limits of what is required by theassumed necessity. That necessity appears to theirLordships to extend as far as the whole duration of theparticular meeting or sitting of the Assembly in the courseof which the offence may have been committed. It seemsto be reasonably necessary that some substantial intervalshould be interposed between the suspensory resolutionand the resumption of his place in the Assembly by theoffender, in order to give opportunity for the subsidence ofheat and passion, and for reflection on his own conduct bythe person suspended; nor would anything less be generallysufficient for the vindication of the authority and dignity ofthe Assembly. …”

These observations are significant and apposite in the context ofthe issue under consideration. And we must lean in favour of adoptingthe same. Inasmuch as this exposition recognises the fact that implied orinherent power of the Legislature must be reckoned to the extent only towhat is required to be done by the House for effective and orderlyfunctioning of its business during the ongoing Session and not beyond.This is more emphatically expounded by the Privy Council in the followingwords:

“The power, therefore, of suspending a member guilty ofobstruction or disorderly conduct during the continuance of any74 1 L.R, P.C. 340

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Acurrent sitting, is, in their Lordships’ judgment, reasonablynecessary for the proper exercise of the functions of anyLegislative Assembly of this kind; and it may very well be, thatthe same doctrine of reasonable necessity would authorize asuspension until submission or apology by the offending member;which, if he were refractory, might cause it to be prolonged (notBby the arbitrary discretion of the Assembly, but by his own wilfuldefault) for some further time. …”

Again, it went on to observe as follows:

“… If these are the limits of the inherent or implied power,Creasonably deducible from the principle of general necessity, theyhave the advantage of drawing a simple practical line betweendefensive and punitive action on the part of the Assembly. A powerof unconditional suspension, for an indefinite time, or for adefinite time depending only on the irresponsible discretionof the Assembly itself, is more than the necessity of self-Ddefence seems to require, and is dangerously liable, inpossible cases, to excess or abuse. …”

62. The essence of the analysis done in Barton[75]is about theElogic and rationality behind the need to suspend a member. Itunambiguously held that the same be regarded as temporary by way ofself-protective mechanism of the Legislature to ensure orderly conductof its business in the House during the sitting. For that very reason, Rule53 provides for a graded corrective action, namely, on the first occasion,the Speaker may suspend the member for the remainder of the day andFif the misbehaviour is repeated in the same Session — for the remainderof the Session. The observations in Barton[76]would reinforce this logicof need to adhere to a graded approach, which reads thus:

“ …‘‘Suspension” must be temporary; the words, “suspended fromthe service of the House,” may be satisfied by referring them toGthe attendance of the member in the House during that particularsitting. So much as this is necessary to make the suspensioneffective, more is not. …”

75 supra at Footnote No.9H76 supra at Footnote No.9

63. In light of this decision, it must follow that only a gradedapproach is the essence of a rational and logical approach; and onlysuch action of the Legislature which is necessary for orderly conduct ofits scheduled business of the ongoing Session can be regarded as rationalapproach. Suspension beyond the Session would be bordering on punishingnot only the member concerned, but also inevitably impact the legitimaterights of the constituency from where the member had been elected.

64. In the case of Lawrence Joseph Harnett[77], the questionwas about the challenge to the Standing Order which provided as follows:

“Whenever it shall have been ruled or decided (whether beforeor after the approval of this Standing Order) that the House maynot proceed on a matter which has been initiated in the Houseaffecting the alleged misconduct of a Member, because therebythe said member may be prejudiced in a criminal trial then pendingon charges founded on such misconduct, the House may suspendsuch member from the service of the House until the verdict ofthe jury has been returned, or until it is further ordered.”

This Standing Order was approved by the Governor. In thatcontext, the Privy Council observed that it seems impossible for theCourt to declare that the House was so wrong in its judgment, and theStanding Order and the resolution founded upon it so foreign to the purposecontemplated by the Act, so as to declare the proceedings against themember invalid. In other words, the Privy Council was considering awritten Standing Order and its efficacy.

65. In the present case, the House has already adopted the Rulesfor conduct of its business and Rule 53 of the Rules expressly providesfor the mechanism regarding suspension of its member. Indubitably, thesource of powers and privileges of Legislatures in India is derived fromArticle 105(3) in case of Parliament and Article 194(3) concerning theState Legislature. In absence of a law to define such powers andprivileges, as of now, it can only exercise those powers as existed in theHouse of Commons of the Parliament of United Kingdom at thecommencement of the Constitution.

66. In the celebrated treatise of Sir Thomas Erskine May[78] dealingwith the Parliamentary privileges, it is noted as follows:

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” atpages 451-452.)

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

He then noted that the first or subsequent occasion would meanthe first or the subsequent occasion in the same session.

67. Further, the position as obtained in United Kingdom at therelevant time to suspend its members was governed by the House ofCommons Standing Order Relative to Public Business 1948. The relevantStanding Order is No. 22 (1 to 4) as reproduced hereunder:

“22. Order in debate.— (1) Whenever a Member shall have beennamed by Mr. Speaker or by the chairman, immediately after thecommission of the offence of disregarding the authority of thechair, or of persistently and willfully obstructing the business ofthe 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 beingmade, no amendment, adjournment, or debate being allowed, “Thatsuch Member be suspended from the service of the House”; andif the offence has been committed in a committee of the wholeHouse, the chairman shall forthwith suspend the proceedings ofthe committee and report the circumstances to the House; andMr. Speaker shall on a motion being made forthwith put the samequestion, 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 suspensionon the first occasion shall continue until the fifth day, and on thesecond occasion until the twentieth day, on which the House shallsit after the day on which he was suspended, but on any subsequentoccasion until the House shall resolve that the suspension of suchMember do terminate.

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

ASHISH SHELAR & ORS. v. THE MAHARASHTRA LEGISLATIVEASSEMBLY & ANR. [A. M. KHANWILKAR, J.]

(4) If a Member, or two or more Members acting jointly, whohave been suspended under this order from the service of theHouse, shall refuse to obey the direction of Mr. Speaker, whenseverally summoned under Mr. Speaker’s orders by the Serjeantat Arms to obey such direction, Mr. Speaker shall call the attentionof the House to the fact that recourse to force is necessary inorder to compel obedience to his direction, and the Member orMembers named by him as having refused to obey his directionshall thereupon and without any further question being put besuspended from the service of the House during the remainder ofthe session.”

On conjoint reading of sub-clause (2) and (4) of the above-citedStanding Order No. 22, it is seen that suspension of a member on thefirst occasion can be for a period of five days or the remainder of thesession whichever is earlier. Even for the second occasion the period ofsuspension is only twenty days or remainder of the Session, whicheveris earlier. On any subsequent occasion the period of suspension shall beuntil the House shall resolve that the suspension of such member doterminate.

68. The Orissa High Court in Sushanta Kumar Chand[79]hadoccasion to deal with a case of warrant issued by the Speaker of theAssembly to detain the contemnor for seven days’ simple imprisonment.It was urged that as the unexpired period of sentence was beyond theterm of the Session of the House, the same had lapsed in law. The HighCourt answered the challenge in favour of the petitioners after noticingpassage from Sir Thomas Erskine May and Halsbury’s Laws of England.The Sir Thomas Erskine May’s Parliamentary Practice relied upon inthat decision, expounds thus:

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

And Halsbury’s Law of England relied upon in the same decisionobserves thus:

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A“The Lords claim to have power to commit an offender for aspecified period even beyond the period of a session. This coursewas also formerly pursued by the Commons but was laterabandoned; and it would now seem that they no longer havepower to keep offenders in prison beyond the period ofsession……………”B

The rationale for limiting all remedies for breach of privilege, as arule, to a Session in which the House takes action for such breach is theeffect of prorogation. According to Erskine May’s Treatise[80], it is statedCas under:

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

69. A priori, if the Legislature intended to depart from mechanismpredicated in Rule 53, it ought to have expressly provided for thatEdispensation. If it had done that by a law or in the form of Rules framedunder Article 208 of the Constitution, the legality and constitutionalitythereof could have been tested. Suffice it to note, in absence thereof, itwould inevitably be exercise of power without an express grant in thatregard. In such a case, the exercise of power can only be implied orFinherent and limited to the logic of general necessity by way of self-protective or self-defensive action reasonably necessary for properexercise 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 powerof the Assembly. Even, Rule 53 bestows authority in the Speaker to takeGaction against the member only for ensuring orderly functioning of theHouse. Same logic must apply to the exercise of inherent limited powerby the House, even if it may not be de facto under Rule 53.

ASHISH SHELAR & ORS. v. THE MAHARASHTRA LEGISLATIVEASSEMBLY & ANR. [A. M. KHANWILKAR, J.]

70. Be it noted, had it been a case of expulsion of the member bythe House in terms of Section 151A of the 1951 Act, the ElectionCommission would move into action and rather be obliged to take stepsnot later than six months to fill in the vacancy so caused subject to thesituation referred to in the proviso therein — so that the constituencycould be duly represented in the House at the earliest opportunity.Concededly, the Legislative Assembly is a conglomeration of memberschosen by direct election from the territorial constituencies in the State(as per Article 170). That presupposes that all territorial constituenciesmust be duly represented in the Assembly in continuum. In any case,their representation cannot be deprived for longer period than necessaryfor the orderly functioning of the House during the Session. For thatreason, the statutory mandate postulated vide Parliamentary law[81] (whichmust be regarded as higher law and acts as a limitation upon theLegislature as well, as expounded in Sub-Committee on JudicialAccountability[82]), the constituency cannot be denied representation inthe House beyond a limited period due to fortuitous situation. Moreover,the expelled member would be free to contest the mid-term election andget re-elected from the same constituency. In that, the member does notincur any disqualification due to expulsion or even removal by the House.In case of suspension beyond the period of remainder of the Session orsixty days or six months, as the case may be, even though is not a caseof disqualification incurred by the member, it would entail in unduedeprivation of the constituency to be represented in the House by theirduly elected representative. It is, therefore, a drastic measure trenchingupon 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 attentionto the judgments of the Gujarat High Court wherein it had been held thatthe rules framed under Article 208 of the Constitution are neither statutorynor binding on the Legislative Assembly. Those decisions have not takennote of the efficacy of the observations made by the Constitution Benchof this Court in M.S.M. Sharma[83] as back as in 1959 — that the rulesframed under Article 208 of the Constitution would have the effect ofprocedure established by law for the purpose of Article 21 of the 81 Section 151A of the 1951 Act

81 Section 151A of the 1951 Act

82 supra at Footnote No.33 (para 61)

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AConstitution and which dictum has been consistently followed insubsequent decisions including by the Constitution Bench which dealtwith the case of Raja Ram Pal[84]. Accordingly, the decisions pressedinto service by the respondents cannot take the matter any further. Therespondents have relied upon other decisions including of this Court which,however, has had no occasion to deal with the legality and efficacy ofBdirection or order issued by the House such as vide impugned resolutionof suspending duly elected members for a period of one year instead ofmaximum period of remainder of the same Session. Indeed, the decisionof Madras High Court in V.C. Chandhira Kumar, Member ofLegislative Assembly[85]held the resolution of the Assembly reducingCthe original period of one year to six months as valid, however, for theview that we have taken, the said decision will be of no avail.

72. Resultantly, we have no hesitation in concluding that theimpugned resolution suffers from the vice of being unconstitutional, grosslyillegal and irrational to the extent of period of suspension beyond theDremainder of the concerned (ongoing) Session. Further, it is not a caseof mere procedural irregularity committed by the Legislature within themeaning of Article 212(1) of the Constitution.

73. Although learned counsel appearing for the parties had raiseddiverse contentions, we need not dilate further having opined that inEexercise of inherent power of the House, the suspension of the memberscould not have, in any case, exceeded the remainder period of the ongoingSession. The concerned Session having concluded long back in July 2021,the petitions ought to succeed and could be disposed of with a declarationthat suspension beyond the remainder of the ongoing Session in whichthe resolution was passed, is nullity, unconstitutional and grossly illegalFand irrational. The same cannot be given effect to beyond the remainderperiod of the concerned Session and must be regarded as non est in theeyes of law beyond that period. For that reason, it is unnecessary for usto dilate on other aspects of the matter. Thus, we do not wish to examinethe same.GEpilogue:

74. It is unnecessary to underscore that Parliament as well as theState Legislative Assembly are regarded as sacred places, just as the 84 supra at Footnote No.14H85 supra at Footnote No.23

Judicature as temple of justice. As a matter of fact, the first place wherejustice is dispensed to the common man is Parliament/LegislativeAssembly albeit by a democratic process. It is a place where policiesand laws are propounded for governing the citizenry. It is here that theentire range of activities concerning the masses until the last mile, arediscussed and their destinies are shaped. That, in itself, is the process ofdispensing justice to the citizens of this country. These are places whererobust and dispassionate debates and discussion inspired by the highesttraditions of truth and righteousness ought to take place for resolving theburning issues confronting the nation/State and for dispensing justice —political, social and economic. The happenings in the House is reflectionof the contemporary societal fabric. The behavioural pattern of the societyis manifested or mirrored in the thought process and actions of themembers of the House during the debates. It is in public domain (throughprint, electronic and social media) that the members of the Parliament orAssembly/Council of the State, spend much of the time in a hostileatmosphere. The Parliament/Legislative Assembly are becoming moreand more intransigent place. The philosophical tenet, one must agree todisagree is becoming a seldom scene or a rarity during the debates. Ithas become common to hear that the House could not complete its usualscheduled business and most of the time had been spent in jeering andpersonal attacks against each other instead of erudite constructive andeducative 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 observers. They earnestly feel that it is hightime that corrective steps are taken by all concerned and the electedrepresentatives would do enough to restore the glory and the standardof intellectual debates of the highest order, as have been chronicled oftheir predecessors. That legacy should become more prominent thanthe rumpus caused very often. Aggression during the debates has noplace in the setting of country governed by the Rule of Law. Even acomplex issue needs to be resolved in a congenial atmosphere byobserving collegiality and showing full respect and deference towardseach other. They ought to ensure optimum utilisation of quality time ofthe House, which is very precious, and is the need of the hour especiallywhen we the people of India that is Bharat, take credit of being theoldest civilisation on the planet and also being the world’s largestdemocracy (demographically). For becoming world leaders and self-dependant/reliant, quality of debates in the House ought to be of the AB

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Ahighest order and directed towards intrinsic constitutional and native issuesconfronting the common man of the nation/States, who are at thecrossroad of semi-sesquicentennial or may we say platinum or diamondjubilee year on completion of 75 years post-independence. Being Houseof respected and honourable members, who are emulated by their ardentfollowers and elected from their respective constituency, they areBexpected to show statesmanship and not brinkmanship. In the House,their goal is and must be one — so as to ensure the welfare and happinessof we the people of this nation. In any case, there can be no place fordisorderly conduct in the House much less “grossly disorderly”. Suchconduct must be dealt with sternly for ensuring orderly functioning ofCthe House. But, that action must be constitutional, legal, rational and asper the procedure established by law. This case has thrown up anoccasion for all concerned to ponder over the need to evolve and adhereto good practices befitting the august body; and appropriately denounceand discourage proponents of undemocratic activities in the House, bydemocratically elected representatives. We say no more.D

Conclusion:

75. In conclusion, we have no hesitation in allowing these writpetitions and to declare that the impugned resolution directing suspensionof the petitioners beyond the period of the remainder of the concernedEMonsoon Session held in July 2021 is non est in the eyes of law, nullity,unconstitutional, substantively illegal and irrational. The impugnedresolution is, thus, declared to be ineffective in law, insofar as the periodbeyond the remainder of the stated Session in which the resolution cameto be passed.

Order:F

76. As a result of the stated declaration, the petitioners are entitledfor all consequential benefits of being members of the LegislativeAssembly, on and after the expiry of the period of the remainder of theconcerned Session in July 2021. The writ petitions are allowed in theabove terms. No order as to costs.G

Postscript:

77. While parting, we need to express a word of appreciation forthe able assistance given by the learned counsel appearing for theconcerned parties enabling us to deal with the complex issues on hand.

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That they did despite the handicaps and uncertainty of online interactionin virtual Court hearing.

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

Nidhi Jain and Amarendra Kumar

Writ petitions allowed.

(Assisted by : Bodhe Ramteke, LCRA)

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