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2022 (1) TMI 1490
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....ate, Ms. Astha Prasad, AOR, Mr. Abhikalp Pratap Singh, AOR For the Respondent : Mr. Rahul Chitnis, Adv., Mr. Sachin Patil, AOR., Mr. Akshay Shinde, Adv., Mr. Aaditya A. Pande, Adv., Mr. Geo Joseph, Adv., Ms. Shwetal Shepal, Adv., Ms. Rohini Musa, Adv., Mr. Zafar Inayat, Adv., Mr. Abhishek Gupta, Adv., Mr. Sachin Patil, AOR, Mr. Ajit Kadethankar, Advocate, For State Election Commission JUDGMENT A.M. KHANWILKAR, J. 1. The petitioners have been duly elected as members of the current Maharashtra Legislative Assembly (2019-2024). They got elected from different constituencies in the State of Maharashtra. They belong to the Bharatiya Janata Party for short, "BJP", the principal Opposition Party in the Maharashtra Legislative Assembly. The Ruling Party is a coalition between the Shiv Sena, the Nationalist Congress Party (NCP) and the Indian National Congress (INC) christened as "Maha Vikas Aghadi". 2. This lis emanates from the events as unfolded during the Monsoon Session of the Maharashtra Legislative Assembly on 5.7.2021. The proceedings of the House witnessed heated exchanges between the members of the Opposition Party and the Ruling Party due to an impression formed by the form....
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....he Shiv Sena were present in the chamber and involved in heated exchanges, but no action was being taken against them as both the sections had apologised to each other. According to the petitioners, when the House resumed, by way of courtesy a sincere apology was graciously tendered by the Leader of Opposition to the Chairman for the earlier incident while adverting to the fact that none of the MLAs belonging to the Opposition Party (BJP) including the petitioners herein had abused the Chairman. Soon thereafter, to the utter surprise of the petitioners (and other members of the Opposition Parties), the Minister for Parliamentary Affairs moved a resolution for initiating action against 12 MLAs of the BJP for having committed contempt of the House. That motion was tabled in the House and the Chairman was called upon to do the needful. The Chairman then called upon the House to pass the said resolution. The House in turn passed that resolution by majority votes after it was put to vote at 14:40 hours on 5.7.2021. The same reads thus: "P.H.: Contempt of the House by objectionable behavior M.H.: Resolution of Minister for Parliamentary Affairs regarding suspension of M.L.A.s for Con....
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....g recording of the proceedings in the House dated 5.7.2021 and 6.7.2021. 7. Eventually, on 22.7.2021, the petitioners approached this Court by way of these writ petitions under Article 32 of the Constitution of India, for issuing appropriate writ, order or direction so as to quash and set aside the impugned resolution dated 5.7.2021 passed by the Maharashtra Legislative Assembly being unconstitutional and grossly illegal and for enforcement of their fundamental rights as guaranteed under Articles 14 and 21 of the Constitution. 8. It is urged that the impugned resolution dated 5.7.2021 has been passed in undue haste and is politically motivated. It is primarily intended to adversely impact the numbers of the Opposition Party in the House. It has been passed without giving an opportunity of hearing to the petitioners much less calling upon them to offer written explanation. To buttress this ground, reliance has been placed on a decision of two Judge Bench of this Court in Alagaapuram R. Mohanraj & Ors. vs. Tamil Nadu Legislative Assembly & Anr. (2016) 6 SCC 82. 9. It is urged that the events, as unfolded, on the face of it, would indicate the undue haste in which the impugned reso....
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....s urged that a motion for unruly behaviour in the House can never be a subject matter of voting since it would enable the political party in power to virtually wipe out the opposition for some trivial acts committed by their members, by suspending as many members of the Opposition Party. The decision of suspension, therefore, must rest with the Speaker and not the House. Notably, Rule 53 of the Rules prescribes a maximum period of suspension not exceeding remainder of the Sessions. Thus, suspension of the petitioners for a period of one year is grossly unconstitutional and illegal. If the impugned resolution was allowed to prevail, nothing would prevent the political party in power (in majority) to resort to such mechanism and to suspend a large number of members of Opposition Party upto five years or remainder of the term of the Legislative Assembly by resorting to voting in the House. 13. It is also urged that the erstwhile Speaker had stepped down, as a result of which, he ceased to be the Chairman. As such, heated exchanges allegedly occurring between him and the petitioners outside the House, would not invite action of suspension, inasmuch as after stepping down as Speaker, h....
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....l move not backed by any similar precedent. In any case, the period of suspension of one year is unconscionable and manifestly arbitrary and irrational. On the other hand, it is urged by the learned counsel for the State that Article 212(1) of the Constitution of India makes it amply clear that it is not open to the Court to explore the argument of proper procedure not followed by the House. Further, it is not open to the Court to do judicial review of the final decision on the basis of abstract arguments and grounds urged before this Court; and even if a sui generis procedure has been adopted by the House, it is the absolute prerogative of the House to regulate its business. It is also urged by the learned counsel for the State that the petitioners have not refuted the case made out against them about misbehaviour in the House and outside the House as well. Indeed, this plea has been countered by learned counsel appearing for the petitioners. All these are debatable issues and would require deeper consideration. As a result, we deem it appropriate to issue a formal notice to the respondents, returnable on 11.01.2022. Mr. Sachin Patil, Advocate waives notice for responden....
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....open to the Judicature to have a second-guess approach in that regard. 17. It is urged that from the averments in the writ petitions itself, it is conceded that the Leader of Opposition had to apologise for the unruly behaviour of the members of the Opposition including that of the petitioners. The petitioners had committed acts which resulted in undermining and maligning the dignity of the House in the face of the House and for which reason, the House decided to suspend the petitioners. In such a situation, there is no question of granting any opportunity of hearing or for furnishing written explanation, being a case of contempt of the House on the face of it while it was in Session. The reply affidavit essentially rebuts the legal arguments of the petitioners and reiterates the factual position emanating from the impugned resolution itself and urges this Court to dismiss the writ petitions being devoid of merits. Submissions Petitioners: 18. The petitioners are represented by Mr. Mahesh Jethmalani, Mr. Mukul Rohatgi, Mr. Neeraj Kishan Kaul and Mr. Siddharth Bhatnagar, learned senior counsel. The sum and substance of their submission is as follows. First, the impugned resoluti....
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....ides for a graded approach to be adopted by the Speaker for ensuring orderly conduct of business in the House by directing withdrawal of a member, who in his opinion, had or was creating obstruction in that regard. Inasmuch as, if it is his first instance of such type, the Speaker could order his withdrawal for the remainder of the day's meeting. In case of repeat misconduct during the same Session, the Speaker could order withdrawal of such member for the remainder of the Session. Had it been a case of exercise of power under Rule 53, the member so directed to be absent shall, during the period of such absence, is deemed to be absent with the permission of the Assembly within the meaning of clause (4) of Article 190 of the Constitution. However, the impugned resolution makes no reference to this aspect at all. 18.(b) On the stated position taken by the respondents that the power has been exercised by the House and is not ascribable to Rule 53, but the inherent power of the House, even in that case, the suspension of the member of the House cannot go beyond the ongoing Session. Inasmuch as, excess and unnecessary period of suspension of the member from the House is not only undesi....
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....in the impugned resolution is worst and operates as inflicting penalty upon the petitioners as well as the constituency represented by them. In other words, it is worse than expulsion of a member of the House. 18.(c) In the present case, learned counsel contends that the House had to assemble for only two days of the ongoing Session. The suspension, therefore, ideally could not have been for a period more than the remainder of the Session in terms of Rule 53 of the Rules. Moreover, as the motion was introduced in the House for initiating contempt, it ought to have proceeded only under Part XVIII of the Rules by following procedure prescribed therein which includes giving opportunity of hearing to the member before the Committee of Privileges. If it was to be regarded as an ordinary motion, then the procedure under Rule 106 of the Rules would have required 15 clear days' notice. Further, Rule 110 110. Government Resolutions.- (1) The provisions of rule 106 shall not apply to resolutions of which notice is given by a Minister or the Advocate General. (2) Seven days' notice shall be necessary in respect of such resolutions (emphasis supplied) postulates that the resolution i....
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....ve been constricted in terms of Rule 58 58. General Powers of Speaker.- All matters not specifically provided for in these rules and all questions relating to the detailed working of these rules shall be regulated in such manner as the Speaker may, from time to time direct. (emphasis supplied) namely, limited to matters not specifically provided for in the rules. Submissions - Respondent (State of Maharashtra): 19. Mr. C. Aryama Sundaram, learned senior counsel appearing for the State of Maharashtra, however, would urge that much argument of the petitioners is founded on untenable assumption that the Rules were binding on the House; and it was not open to the House to proceed dehors the rules formulated under Article 208 of the Constitution. He submits that it is open to the Legislature to deviate from the Rules, even if framed under Article 208. Such rules are only akin to the byelaws of the society which are not enforceable nor can it be regarded as statutory rules. Further, grounds of challenge set forth by the petitioners are essentially questioning the procedure adopted by the House in adopting the impugned resolution. Such a challenge cannot be maintained nor could be ....
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....t is impermissible. For, the decision of the House regarding quantum or the period of suspension is nonjusticiable 19.(c) He vehemently urged that this Court ought not to venture into the factual matrix and have a secondguess approach regarding the opinion expressed by the House in the impugned resolution. To buttress his submissions, he has placed reliance on the decision of the Gujarat High Court in Jagdishbhai Thakore & Anr. vs. Chandrikaben Chudasma & Ors. 2007 SCC OnLine Guj 402 (para 8): 2007 (48) 4 GLR 2998 (Single Judge Bench), which follows the exposition of the Division Bench of the same High Court in Chhabildas Mehta, M.L.A. vs. The Legislative Assembly, Gujarat State (1970) 11 GLR 729 (Division Bench) (paras 14 to 16). He has also placed reliance on K.A. Mathialagan vs. P. Srinivasan & Ors. AIR 1973 Madras 371 (Full Bench), A.M. Paulraj vs. The Speaker, Tamil Nadu Legislative Assembly, Madras & Anr. AIR 1986 Madras 248 (Full Bench), K. Anbazhagan & Ors. vs. The Secretary, The Tamil Nadu Legislative Assembly, Madras & Ors. 1987 SCC OnLine Mad 89 (Division Bench) (paras 87 to 92, 101, 108 to 110 and 160), V.C. Chandhira Kumar, Member of Legislative Assembly & Ors. vs. Ta....
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....nsion by the House presupposes that the House itself has restricted the entry of the concerned member during the meetings and it can be safely regarded as deemed permission of the House for absence for the relevant period. Similarly, the constituency cannot complain about its nonrepresentation in the House having elected someone who conducts himself/herself inappropriately in the meetings. In Raja Ram Pal supra at Footnote No. 14, similar plea had been negatived. Concededly, suspended elected representative continues to represent the constituency from where he/she has been elected for all other purposes except attending the meetings owing to suspension. The argument of the petitioners is more fixed on the basis of morality approach. That cannot be countenanced. As a matter of law, the House has inherent powers to direct suspension of its member for one year period and there is no express bar or restriction provided for by the Constitution or by virtue of any statutory provision. In substance, it is urged that the Court cannot enquire into the grievances as made, essentially being about the irregularity of procedure in adopting the impugned resolution by the House. 21. We have hear....
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.... have been regularly and reasonably exercised, not violating the law or the constitutional provisions, this presumption being a rebuttable one; (f) The fact that Parliament is an august body of coordinate constitutional position does not mean that there can be no judicially manageable standards to review exercise of its power; (g) While the area of powers, privileges and immunities of the legislature being exceptional and extraordinary its acts, particularly relating to exercise thereof, ought not to be tested on the traditional parameters of judicial review in the same manner as an ordinary administrative action would be tested, and the Court would confine itself to the acknowledged parameters of judicial review and within the judicially discoverable and manageable standards, there is no foundation to the plea that a legislative body cannot be attributed jurisdictional error; (h) The judicature is not prevented from scrutinising the validity of the action of the legislature trespassing on the fundamental rights conferred on the citizens; (i) The broad contention that the exercise of privileges by legislatures cannot be decided against the touchstone of fundamental rights o....
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....oss illegality or unconstitutionality are not protected from judicial scrutiny; (t) Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action; (u) An ouster clause attaching finality to a determination does ordinarily oust the power of the court to review the decision but not on grounds of lack of jurisdiction or it being a nullity for some reason such as gross illegality, irrationality, violation of constitutional mandate, mala fides, noncompliance with rules of natural justice and perversity." (emphasis supplied) 23. These principles have been restated by the subsequent Constitution Bench in Amarinder Singh supra at Footnote No. 15, in paragraphs 53 and 54. Further, it would be useful to advert to the observations in paragraphs 87 and 88 of the same decision in the context of the concerns about the intrusion into the powers of the Legislature. The same reads thus: "Concerns about intrusion into the executive and judicial domain 87. The doctrine of separation of powers is an inseparable part of the evolution of parliamentary democracy itself. R....
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....the Constitution."" (emphasis supplied) 24. To the same end, dictum of the Constitution Bench in Sub-Committee on Judicial Accountability vs. Union of India & Ors. (1991) 4 SCC 699 (5 Judge Bench) may be apposite. In paragraph 61 of the reported decision, the Court observed thus: "61. But where, as in this country and unlike in England, there is a written Constitution which constitutes the fundamental and in that sense a "higher law" and acts as a limitation upon the legislature and other organs of the State as grantees under the Constitution, the usual incidents of parliamentary sovereignty do not obtain and the concept is one of 'limited government'. Judicial review is, indeed, an incident of and flows from this concept of the fundamental and the higher law being the touchstone of the limits of the powers of the various organs of the State which derive power and authority under the Constitution and that the judicial wing is the interpreter of the Constitution and, therefore, of the limits of authority of the different organs of the State. It is to be noted that the British Parliament with the Crown is supreme and its powers are unlimited and courts have no power of judicial r....
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....tary privilege and the basic safeguards assured to all enshrined in the Constitution", it would be a partisan action in the name of exercise of privilege. We are not going into this issue but citing the incident as an illustration." (emphasis supplied) After having said as above, the Court proceeded to examine the extent of circumspection to be observed by the courts. That had been exposited in following words: "414. In State of Rajasthan v. Union of India (1977) 3 SCC 592 : AIR 1977 SC 1361 while dealing with the issues arising out of communication by the then Union Home Minister to the nine States asking them to advise their respective Governors to observe the Legislative Assemblies and therefore seek mandate from the people, this Court observed in para 40 as under: (SCC p. 616) "40. This Court has never abandoned its constitutional function as the final judge of constitutionality of all acts purported to be done under the authority of the Constitution. It has not refused to determine questions either of fact or of law so long as it has found itself possessed of power to do it and the cause of justice to be capable of being vindicated by its actions. But, it cannot assume u....
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....liament in exercise of enabling powers under Article 118(1), we are of the opinion that mere availability of rules is never a guarantee that they have been duly followed. What we are concerned with, given the limits prescribed in Article 122(1), is not "irregularity of procedure" but illegalities or unconstitutionalities." (emphasis supplied in bolds) 26. From the exposition in these successive Constitution Bench decisions referred to above, it is not possible to countenance the submission of the learned counsel for the respondent-State that the enquiry must be limited to one of the parameters specified in Raja Ram Pal supra at Footnote No. 14 and, in this case, only clause (s) - "The proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny". On the other hand, we lean in favour of taking the view that each of the parameters is significant and permissible area of judicial review in relation to exercise of parliamentary privileges including clauses (f), (g), (s) and (u). In one sense, clause (u) is a comprehensive parameter articulated by the Constitution Bench in Raja Ram Pal supra at Footnote N....
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....le 208 of the Constitution. 30. The Constitution Bench of this Court in M.S.M. Sharma supra at Footnote No. 11 had occasion to deal with the efficacy of the rules so framed under Article 208 of the Constitution. In paragraph 29 (29) Seeing that the present proceedings have been initiated on a petition under Art. 32 of the Constitution and as the petitioner may not be entitled, for reasons stated above, to avail himself of Art. 19(1)(a) to support this application, learned advocate for the petitioner falls back upon Art. 21 and contends that the proceedings before the Committee of Privileges threaten to deprive him of personal liberty otherwise than in accordance with procedure established by law. The Legislative Assembly claims that under Art. 194(3) it has all the powers, privileges and immunities enjoyed by the British House of Commons at the commencement of our Constitution. If it has those powers, privileges and immunities, then it can certainly enforce the same, as the House of Commons can do. Article 194(3) confers on the Legislative Assembly those powers, privileges and immunities and Art. 208 confers power on it to frame rules. The Bihar Legislative Assembly has framed r....
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....s, privileges and immunities of the House of Commons and if the petitioner is eventually deprived of his personal liberty as a result of the proceedings before the Committee of Privileges, such deprivation will be in accordance with procedure established by law and the petitioner cannot complain of the breach, actual or threatened, of his fundamental right under Art. 21." Subba Rao, J. in his minority judgment in that case and the Court in Special Reference No. 1 of 196445 did not say anything to the contrary on this point." (emphasis supplied) 32. It is settled law that even rules made to exercise the powers and privileges of State Legislature constitute law within the meaning of Article 13. This is exposited in Special Reference No. 1 of 1964 supra at Footnote No. 12. It is held that when the State Legislatures purport to exercise this power, they will undoubtedly be acting under Article 246 read with Entry 39 of List II. The enactment of such a law will, therefore, have to be treated as a law within the meaning of Article 13. 33. In the backdrop of these observations, the plea taken by the State that the rules are neither statutory rules nor binding on the House wil....
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....es; until then, and even otherwise, it is expected to adhere to the "express substantive stipulation" (which is not mere procedure) in the rules framed under Article 208 of the Constitution and the principle underlying therein, being procedure established by law. 36. As aforesaid, the dispensation prescribed under the Rules to exercise power to order withdrawal of member (suspension) is ascribable to Rule 53 of the Rules which reads thus: "53. Power to order withdrawal of member.- The Speaker may direct any member who refuses to obey his decision, or whose conduct is, in his opinion, grossly disorderly, to withdraw immediately from the Assembly and any member so ordered to withdraw shall do so forthwith and shall absent himself during the remainder of the day's meeting. If any member is ordered to withdraw a second time in the same Session, the Speaker may direct the member to absent himself from the meetings of the Assembly for any period not longer than the remainder of the Session, and the member so directed shall absent himself accordingly. The member so directed to be absent shall, during the period of such absence, be deemed to be absent with the permission of the Assemb....
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.... emotional disorder> <a liver disorder>." The expression "disorderly" as defined in Black's Law Dictionary 6th Edition is as follows: "Disorderly. Contrary to the rules of good order and behavior; violative of the public peace or good order; turbulent, riotous, or indecent." In the Concise Oxford Dictionary 8th Edition, the expression "disorderly" has been defined thus: "disorderly adj. 1 untidy; confused. 2 irregular; unruly; riotous. 3 Law contrary to public order or morality." The expression "disorderly conduct" as defined in Black's Law Dictionary 11th Edition is as follows: "disorderly conduct. See CONDUCT Conduct, n. (15c) Personal behavior, whether by action or inaction, verbal or nonverbal; the manner in which a person behaves; collectively, a person's deeds.  Conduct does not include the actor's natural death or a death that results from behavior consciously engaged in but not reasonably expected to have this result. - conduct, vb." 40. Taking the totality of the meaning of expressions "grossly" and "disorderly", it must follow that the conduct of the member is such that it was impeding the smooth or orderly functioning of the House, and may also be of ....
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....ion being moved by a member of the House instantly with the concurrence of the Speaker on such a motion. 43. In the present case, the Chairman entertained the subject motion and called upon the House to vote thereon, which had the effect of giving tacit consent if not explicit concurrence to the same. In that sense, it is not a case of resolution passed by the House (to suspend its members) as being without jurisdiction. It is a different matter that if the Speaker/Chairman was to do so, it could be only under Rule 53 in a graded manner for the remainder of the day and for repeat misconduct in the same Session - for the remainder of the Session. That would be a logical and rational approach consistent with the constitutional tenets. 44. If the House takes upon itself to discipline its members, it is expected to adopt the same graded (rational and objective standard) approach on the lines predicated in Rule 53. That would be a case of rational action taken by the House as per the procedure established by law. The expression "rational" is defined in Black's Law Dictionary 11th Edition as follows: "rational, adj. (14c) 1. Endowed with the faculties of cognition traditionally thoug....
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....ation of his seat. However, if it is a case of suspension for a period beyond the remainder of the Session, it would entail in unnecessary (unessential) deprivation. And longer or excessive deprival would not only be regarded as irrational, but closer to or bordering on perversity. Resultantly, such an action would be violative of procedure established by law and also manifestly arbitrary, grossly irrational and illegal and violative of Articles 14 and 21 of the Constitution. 48. Be it noted that suspension beyond the remainder period of the ongoing Session would not only be grossly irrational measure, but also violative of basic democratic values owing to unessential deprivation of the member concerned and more importantly, the constituency would remain unrepresented in the Assembly. It would also impact the democratic setup as a whole by permitting the thin majority Government (coalition Government) of the day to manipulate the numbers of the Opposition Party in the House in an undemocratic manner. Not only that, the Opposition will not be able to effectively participate in the discussion/debate in the House owing to the constant fear of its members being suspended for longer pe....
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....nctioning of the House during the ongoing Session. 52. Reverting to the challenge to the impugned resolution being grossly irrational. As noticed earlier, Rule 53 provides for a graded (rational and objective standard) approach. The timeline as specified in Rule 53 is with a view to address the immediate concern of the House for ensuring orderly conduct of the business of the House in the given Session. This action is implied on the doctrine of necessity. The Speaker and for that matter, even the House as a whole or by majority, would be within its power to resort to such a mechanism being rational measure. Exceeding the stated timeline is a substantive matter and not a procedural irregularity. It would raise a basic question as to what purpose would be served by withdrawing the member from the House for successive Sessions falling within that period of one year. Indeed, if the conduct of the member is gross warranting his removal from the Assembly even beyond the period of sixty days [Article 190(4)] or six months (Section 151A of the 1951 Act), the House is capable of invoking its inherent power of expulsion of such a member, which is a greater power. 53. Indubitably, suspensio....
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.... of creating a de facto vacancy though not a de jure vacancy. The argument of the State that despite suspension from the House, the members would continue to discharge all other functions outside the House as an elected representative. This plea, in our view, is tenuous. For, the effect of such suspension is visited not only on the constituency that goes unrepresented for potentially long and unessential time, but also on the functioning of the Assembly itself. Apart from a role in bringing to light the special needs or difficulties of the constituency, a member also plays a role in various motions, debates, votes, etc.. 60 Some of the functions of the elected representative in the House/Assembly (taken from the Maharashtra Legislative Assembly Rules) would indicate that the member would not be able to take part in following matters, if suspended: (a) Moving of a motion which requires decision by the Assembly, including by Division (Rules 23, 40, 41); (b) Taking part in a debate on a motion including speeches (Rules 33,34); (c) Asking Questions on Statements made by Ministers (Rule 47); (d) Making of personal explanations (Rule 48); (e) Questions on matters of public co....
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....ties quoties, sitting after sitting, in case of repeated offences (and, if may be, till submission or apology), and also to expel for aggravated or persistent misconduct, appear to be sufficient to meet even the extreme case of a Member whose conduct is habitually obstructive or disorderly. To argue that expulsion is the greater power, and suspension the less, and that the greater must include all degrees of the less, seems to their Lordships fallacious. The rights of constituents ought not, in a question of this kind, to be left out of sight. Those rights would be much more seriously interfered with by an unnecessarily prolonged suspension than by expulsion, after which a new election would immediately be held." (emphasis supplied) 285. The Court went on to examine what is necessary and found that an indefinite suspension could never be considered necessary. 286. The learned counsel for the petitioners have relied on the above distinction and submitted that the limited power does not envisage expulsion and can only be used for ex facie contempts. 287. We are not persuaded to subscribe to the propositions advanced on behalf of the petitioners. Even if we were to accept thi....
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.... foreign to the purpose contemplated by the Act, that the proceedings must be declared invalid."(476) (emphasis supplied) 292. The above case thus establishes that even if the House of legislature has limited powers, such power is not only restricted to ex facie contempts, but even acts committed outside the House. It is open to the Assembly to use its power for "protective" purposes, and the acts that it can act upon are not only those that are committed in the House, but upon anything that lowers the dignity of the House. Thus, the petitioners' submission that House only has the power to remove obstructions during its proceedings cannot be accepted. 293. It is axiomatic to state that expulsion is always in respect of a Member. At the same time, it needs to be borne in mind that a Member is part of the House due to which his or her conduct always has a direct bearing upon the perception of the House. Any legislative body must act through its Members and the connection between the conduct of the Members and the perception of the House is strong. We, therefore, conclude that even if Parliament had only the limited remedial power to punish for contempt, the power to expel wo....
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....ing Session, the inherent power of the Legislature can be invoked only to the extent necessary and for proper exercise of the functions of the House at the relevant point of time. No more. For that purpose, it could resort to protective and self defensive powers alone and not punitive at all. This logic is reinforced from the dictum in Barton supra at Footnote No. 9 wherein the Privy Council noted as follows: "..."If a member of a Colonial House of Assembly is guilty of disorderly conduct in the House while sitting, he may be removed or excluded for a time, or even expelled .... The right to remove for self security is one thing, the right to inflict punishment is another .... If the good sense and conduct of the members of Colonial Legislatures prove insufficient to secure order and decency of debate, the law would sanction the use of that degree of force which might be necessary to remove the person excluded from the place of meeting, and to keep him excluded."" 1 L.R, P.C. 340 61. The Privy Council in the same decision then proceeded to observe as follows: "... The principle on which the implied power is given confines it within the limits of what is required by the assumed....
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....analysis done in Barton supra at Footnote No. 9 is about the logic and rationality behind the need to suspend a member. It unambiguously held that the same be regarded as temporary by way of self-protective mechanism of the Legislature to ensure orderly conduct of its business in the House during the sitting. For that very reason, Rule 53 provides for a graded corrective action, namely, on the first occasion, the Speaker may suspend the member for the remainder of the day and if the misbehaviour is repeated in the same Session - for the remainder of the Session. The observations in Barton supra at Footnote No. 9 would reinforce this logic of need to adhere to a graded approach, which reads thus: " ..."Suspension" must be temporary; the words, "suspended from the service of the House," may be satisfied by referring them to the attendance of the member in the House during that particular sitting. So much as this is necessary to make the suspension effective, more is not. ..." (emphasis supplied) 63. In light of this decision, it must follow that only a graded approach is the essence of a rational and logical approach; and only such action of the Legislature which is necessary for....
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....f the member shall terminate when the House orders that it shall do so, the suspension shall be for the remainder of the Session." (emphasis supplied) He then noted that the first or subsequent occasion would mean the first or the subsequent occasion in the same session. 67. Further, the position as obtained in United Kingdom at the relevant time to suspend its members was governed by the House of Commons Standing Order Relative to Public Business 1948. The relevant Standing Order is No. 22 (1 to 4) as reproduced hereunder: "22. Order in debate.- (1) Whenever a Member shall have been named by Mr. Speaker or by the chairman, immediately after the commission of the offence of disregarding the authority of the chair, or of persistently and willfully obstructing the business of the House by abusing the rules of the House, or otherwise, then, if the offence has been committed by such Member in the House, Mr. Speaker shall forthwith put the question, on a motion being made, no amendment, adjournment, or debate being allowed, "That such Member be suspended from the service of the House"; and if the offence has been committed in a committee of the whole House, the chairman shall fo....
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....Erskine May and Halsbury's Laws of England. The Sir Thomas Erskine May's Parliamentary Practice relied upon in that decision, expounds thus: "Persons committed by the Commons, if not sooner discharged by the House, are immediately released from their confinement on a prorogation, whether they have paid the fees or not. If they were held longer in custody, they would be discharged by the Courts upon a writ of habeas corpus." And Halsbury's Law of England relied upon in the same decision observes thus: "The Lords claim to have power to commit an offender for a specified period even beyond the period of a session. This course was also formerly pursued by the Commons but was later abandoned; and it would now seem that they no longer have power to keep offenders in prison beyond the period of session..............." (emphasis supplied) The rationale for limiting all remedies for breach of privilege, as a rule, to a Session in which the House takes action for such breach is the effect of prorogation. According to Erskine May's Treatise 1950 Edition at page 32 under the heading "Effect of a Prorogation", it is stated as under: "The effect of a prorogation is at once to suspend al....
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....951 Act (which must be regarded as higher law and acts as a limitation upon the Legislature as well, as expounded in Sub-Committee on Judicial Accountability supra at Footnote No. 33 (para 61)), the constituency cannot be denied representation in the House beyond a limited period due to fortuitous situation. Moreover, the expelled member would be free to contest the midterm election and get reelected from the same constituency. In that, the member does not incur any disqualification due to expulsion or even removal by the House. In case of suspension beyond the period of remainder of the Session or sixty days or six months, as the case may be, even though is not a case of disqualification incurred by the member, it would entail in undue deprivation of the constituency to be represented in the House by their duly elected representative. It is, therefore, a drastic measure trenching upon imposing penalty more than disciplinary or corrective measure, beyond the limited inherent powers of the House. 71. Learned counsel for the respondents had invited our attention to the judgments of the Gujarat High Court wherein it had been held that the rules framed under Article 208 of the Constit....
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....he concerned Session and must be regarded as non est in the eyes of law beyond that period. For that reason, it is unnecessary for us to dilate on other aspects of the matter. Thus, we do not wish to examine the same. Epilogue: 74. It is unnecessary to underscore that Parliament as well as the State Legislative Assembly are regarded as sacred places, just as the Judicature as temple of justice. As a matter of fact, the first place where justice is dispensed to the common man is Parliament/Legislative Assembly albeit by a democratic process. It is a place where policies and laws are propounded for governing the citizenry. It is here that the entire range of activities concerning the masses until the last mile, are discussed and their destinies are shaped. That, in itself, is the process of dispensing justice to the citizens of this country. These are places where robust and dispassionate debates and discussion inspired by the highest traditions of truth and righteousness ought to take place for resolving the burning issues confronting the nation/State and for dispensing justice - political, social and economic. The happenings in the House is reflection of the contemporary societa....