TaxTMI 
TaxTMI 
2022 (1) TMI 1490
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....nde, Advocate, Mr. Ajit Wagh, Advocate, 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 P....
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....airman referred to the fact that some members of the Shiv Sena were present in the chamber and involved in heated exchanges, but no action was being taken against them as both the sections had apologised to each other. According to the petitioners, when the House resumed, by way of courtesy a sincere apology was graciously tendered by the Leader of Opposition to the Chairman for the earlier incident while adverting to the fact that none of the MLAs belonging to the Opposition Party (BJP) including the 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 f....
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....he Legislative Assembly dated 5.7.2021 and 6.7.2021. Thereafter, the petitioners also sent letters to the Deputy Speaker requesting him to furnish relevant material of the proceedings including recording of the proceedings in the House dated 5.7.2021 and 6.7.2021. 7. Eventually, on 22.7.2021, the petitioners approached this Court by way of these writ petitions under Article 32 of the Constitution of India, for issuing appropriate writ, order or direction so as to quash and set aside the impugned resolution dated 5.7.2021 passed by the Maharashtra Legislative Assembly being unconstitutional and grossly illegal and for enforcement of their fundamental rights as guaranteed under Articles 14 and 21 of the Constitution. 8. It is urged that the impugned resolution dated 5.7.2021 has been passed in undue haste and is politically motivated. It is primarily intended to adversely impact the numbers of the Opposition Party in the House. It has been passed without 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. Mo....
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....lar during the conduct of proceedings in the House towards both sides, namely, members of the Ruling Party as well as of the Opposition Party. So to speak, he exercises quasijudicial function. 12. It is urged that a motion for unruly behaviour in the House can never be a subject matter of voting since it would enable the political party in power to virtually wipe out the opposition for some trivial acts committed by their members, by suspending as many members of the Opposition Party. The decision of suspension, therefore, must rest with the Speaker and not the House. Notably, Rule 53 of the Rules prescribes a maximum period of suspension not exceeding 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 ce....
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.... twelve members, as guaranteed to them under Article 194 of the Constitution of India, but also of the constituencies represented by each of them by merely invoking the route of majority opinion of the House, an unprecedented and unconventional move not backed by any similar precedent. In any case, the period of suspension of one year is unconscionable and manifestly arbitrary and irrational. On the other hand, it is urged by the learned counsel for the State that Article 212(1) of the Constitution of India makes it amply clear that it is not open to the Court to explore the argument of proper procedure not followed by the House. Further, it is not open to the Court to do judicial review of the final decision on the basis of abstract arguments and grounds urged before this Court; and even if a sui generis procedure has been adopted by the House, it is the absolute prerogative of the House to regulate its business. It is also urged by the learned counsel for the State that the petitioners have not refuted the case made out against them about misbehaviour in the House and outside the House as well. Indeed, this plea has been countered by learned counsel appearing fo....
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....h its members, independent of the power of the Speaker of the House to order withdrawal of members under the Rules. The House has the power to take suitable action against its members who transgress the limits laid down in Article 194(1) of the Constitution, being its inherent power and it is not open to the Judicature to have a 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 peti....
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....which had indulged in activities amounting to grossly disorderly conduct. 18.(a) It is also urged that at any rate the impugned resolution suspending the petitioners for a period of one year cannot be countenanced in law being unconstitutional, grossly illegal and irrational. Inasmuch as, Rule 53 provides 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....
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....ouse. Had it been a case of expulsion, it would not have resulted in punishment either to the concerned member or the constituency represented by him. For, the member concerned in that case could get reelected to occupy the vacant seat not later than six months. Thus understood, the timeline of suspension of the petitioners prescribed in the impugned resolution is worst and operates as inflicting penalty upon the petitioners as well as the constituency represented by them. In other words, it is worse than expulsion of a member of the House. 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 r....
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.... 53. That could be done by way of a motion under Rule 57 57. Suspension of rules.- Any member may, with the consent of the Speaker, move that any rule may be suspended in its application to a particular motion before the House; and if the motion is carried, the rule in question shall be suspended for the time being. Moreover, the general powers of the Speaker have 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 de....
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....ar. The power has been exercised by the Legislature, which is inherent in it especially regarding the conduct of its business. The impugned resolution, therefore, is not unconstitutional. He would submit that in the guise of asserting that the impugned resolution is irrational, the petitioners in effect are questioning the proportionality of the period of suspension. This enquiry by the Court is impermissible. For, the decision of the House regarding quantum or the period of suspension is nonjusticiable 19.(c) He vehemently urged that this Court ought not to venture into the factual matrix and have a secondguess approach regarding the opinion expressed by the House in the impugned resolution. To buttress his submissions, he has placed reliance on the decision of the Gujarat High Court in 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. Sriniva....
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....s sixty days Out of total 98-100 days in a year in three Sessions, namely, Budget, Monsoon and Winter altogether. of meetings and not English calendar days. In this case, only seven days of meetings had been conducted so far. Thus, invocation of Article 190(4) in the fact situation of the present case is unavailable. Further, in the case of absence of member from the House owing to his/her suspension by the House presupposes that the House itself has restricted the entry of the concerned member during the meetings and it can be safely regarded as deemed permission of the House for absence for the relevant period. Similarly, the constituency cannot complain about its nonrepresentation in the House having elected someone who conducts himself/herself inappropriately in the meetings. In Raja Ram 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 ....
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....authority and not for determination by the courts; (d) The judicial review of the manner of exercise of power of contempt or privilege does not mean the said jurisdiction is being usurped by the judicature; (e) Having regard to the importance of the functions discharged by the legislature under the Constitution and the majesty and grandeur of its task, there would always be an initial presumption that the powers, privileges, etc. have been regularly and reasonably exercised, not violating the law or the constitutional provisions, this presumption being a rebuttable one; (f) The fact that Parliament is an august body of coordinate constitutional position does not mean that there can be no judicially manageable standards to review exercise of its power; (g) While the area of powers, privileges and immunities of the legislature being exceptional and extraordinary its acts, particularly relating to exercise thereof, ought not to be tested on the traditional parameters of judicial review in the same manner as an ordinary administrative action would be tested, and the Court would confine itself to the acknowledged parameters of judicial review and with....
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....said contention, the onus on the person alleging being extremely heavy; (q) The rules which the legislature has to make for regulating its procedure and the conduct of its business have to be subject to the provisions of the Constitution; (r) Mere availability of the Rules of Procedure and Conduct of Business, as made by the legislature in exercise of enabling powers under the Constitution, is never a guarantee that they have been duly followed; (s) The proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny; (t) Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action; (u) An ouster clause attaching finality to a determination does ordinarily oust the power of the court to review the decision but not on grounds of lack of jurisdiction or it being a nullity for some reason such as gross illegality, irrationality, violation of constitutional mandate, mala fides, noncompliance with rules of natural justice and perversity." (....
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.... of all general norms, whether basic or not so basic, is essentially a legislative function, their interpretation and application to findings reached, after a correct ascertainment of facts involved in an individual case, by employing the judicial technique, is really a judicial function. Neither of the three constitutionally separate organs of State can, according to the basic scheme of our Constitution today, leap outside the boundaries of its own constitutionally assigned sphere or orbit of authority into that of the other. This is the logical meaning of the principle of supremacy of the Constitution."" (emphasis supplied) 24. To the same end, dictum of the Constitution Bench in 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 sove....
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....dicial scrutiny only to the extent indicated in Article 122(1), that is to say the court will decline to interfere if the grievance brought before it is restricted to allegations of "irregularity of procedure". But in case gross illegality or violation of constitutional provisions is shown, the judicial review will not be inhibited in any manner by Article 122, or for that matter by Article 105. If one was to accept what was alleged while rescinding the resolution of expulsion by the Seventh Lok Sabha with the conclusion that it was "inconsistent with and violative of the well accepted principles of the law of parliamentary privilege and the basic safeguards assured to all enshrined in the Constitution", it would be a partisan action in the name of exercise of privilege. We are not going into this issue but citing the incident as an illustration." (emphasis supplied) After having said as above, the Court proceeded to examine the extent of circumspection to be observed by the courts. That had been exposited in following words: "414. In State of Rajasthan v. Union of India (1977) 3 SCC 592 : AIR 1977 SC 1361 while dealing with the issues arising out of communication by....
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....ture subject to the provisions of the Constitution which in turn implies that such rules are compliant with the fundamental rights guaranteed by Part III. He submits that if the rules framed under Article 118 (which corresponds to Article 208) are consistent with Part III of the Constitution then the exercise of powers, privileges and immunities is bound to be a fair exercise and Parliament can be safely attributed such an intention. 417. While it is true that there is no challenge to the Rules of Procedure and Conduct of Business in Lok Sabha and the Rules of Procedure and Conduct of Business in the Council of States, as made by the two Houses of Parliament in exercise of enabling powers under Article 118(1), we are of the opinion that mere availability of rules is never a guarantee that they have been duly followed. What we are concerned with, given the limits prescribed in Article 122(1), is not "irregularity of procedure" but illegalities or unconstitutionalities." (emphasis supplied in bolds) 26. From the exposition in these successive Constitution Bench decisions referred to above, it is not possible to countenance the submission of the learned counsel for the ....
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....ng in size or amount to something else. To wit, the punishment should be proportional to the crime - whereas, expression "rational" is derived from a latin word "ratio" or "rationalis". It means action is based on or in accordance with the reason or logic or so to say sensible or logical. The rationality of action can be tested, both on the ground of power inhering in the Legislature and the exercise of that power. 29. Keeping the stated principles in mind, we must proceed to analyse the grounds of challenge in these petitions. The foremost ground is that it is imperative for the House to adhere to the procedure prescribed in the Rules framed by the House under Article 208 of the Constitution. 30. The Constitution Bench of this Court in M.S.M. 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....
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....tnote No. 11, these powers and the procedure prescribed by the rules has the sanction of enacted law and an order of committal for contempt of the Assembly is according to procedure established by law. Das, C.J., speaking for four learned Judges said at page 861: "Art. 194(3) confers on the Legislative Assembly those powers, privileges and immunities and Art. 208 confers power on it to frame rules. The Bihar Legislative Assembly has framed rules in exercise of its powers under that Article. It follows, therefore, that Art. 194(3) read with the rules so framed has laid down the procedure for enforcing its powers, privileges and immunities. If, therefore, the Legislative Assembly has the powers, privileges and immunities of the House of Commons and if the petitioner is eventually deprived of his personal liberty as a result of the proceedings before the Committee of Privileges, such deprivation will be in accordance with procedure established by law and the petitioner cannot complain of the breach, actual or threatened, of his fundamental right under Art. 21." Subba Rao, J. in his minority judgment in that case and the Court in Special Reference No. 1 of 196445 did not say anything t....
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....ed into question on the ground that the same have not been carried on in accordance with the rules of business as restated in Kihota Hollohon supra at Footnote No. 25 (para 42). It is, however, enough for the present to observe that the rules framed under Article 208 acquire the status of procedure established by law for the purpose of Article 21 of the Constitution as noticed in M.S.M. Sharma supra at Footnote No. 11. This observation has been quoted with approval by another Constitution Bench again in Raja Ram Pal supra at Footnote No. 14, inter alia, in paragraphs 53, 167, 338, 416 and 417. 35. Viewed thus, even though the Legislature has the prerogative to deviate from the rules including to alter the rules; until then, and even otherwise, it is expected to adhere to the "express substantive stipulation" (which is not mere procedure) in the rules framed under Article 208 of the Constitution and the principle underlying therein, being procedure established by law. 36. As aforesaid, the dispensation prescribed under the Rules to exercise power to order withdrawal of member (suspension) is ascribable to Rule 53 of the Rules which reads thus: "53. Power to order with....
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....diminished by deduction; entire <gross profits>. 3. Not specific or detailed; general <a gross estimate>. 4. Coarse in meaning or sense <gross slang>. 5. Repulsive in behavior or appearance; sickening <a gross fellow with gross habits>. 6. Beyond all reasonable measure; flagrant <a gross injustice>." "Grossly", is an adverb and indicative of relatively higher degree of misconduct or so to say extremely wrong and deviant. 39. The expression "disorder" as defined in Black's Law Dictionary 11th Edition is as follows: "disorder. (1877) 1. A lack of proper arrangement <disorder of the files>. 2. An irregularity <a disorder in the proceedings>. 3. A public disturbance; a riot. See CIVIL DISORDER. 4. A disturbance in mental or physical health <an emotional disorder> <a liver disorder>." The expression "disorderly" as defined in Black's Law Dictionary 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 irr....
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....a case of grossly disorderly behaviour in the House, the Speaker/Chairman himself is free to take instantaneous decision to order withdrawal of the member from the meetings of the Assembly during the remainder of the day's meeting and if it is a case of repeat misconduct in the same Session - for the remainder of the Session. 42. Concededly, there is nothing in the constitutional scheme or the rules framed under Article 208 to prevent a member of the House to move a motion for directing withdrawal of a member on the ground of his grossly disorderly conduct. Further, if the Speaker can suo motu direct the member to withdraw from the Assembly on the same day instantly to secure smooth functioning of the proceedings, for the same logic, even the House could pass a resolution itself on a motion being moved by a member of the House instantly with the concurrence of the Speaker on such a motion. 43. In the present case, the Chairman entertained the subject motion and called upon the House to vote thereon, which had the effect of giving tacit consent if not explicit concurrence to the same. In that sense, it is not a case of resolution passed by the House (to suspend its members) as....
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....aximum upto the remainder of the entire Session. 46. Inflicting suspension for a period "beyond the period necessary" than to ensure smooth working/functioning of the House during the Session "by itself"; and also, as per the underlying objective standard specified in Rule 53, indubitably, suffer from the vice of being grossly irrational measure adopted against the erring member and also substantively illegal and unconstitutional. 47. It is a different matter if the House had ended up with resolution of expulsion of the member, which power in a given situation it could legitimately exercise, as held in Raja Ram Pal supra at Footnote No. 14. That action would not visit the member with disqualification and also allow him to get reelected from the same constituency within the statutory period of six months from the date of vacation of his seat. However, if it is a case of suspension for a period beyond the remainder of the Session, it would entail in unnecessary (unessential) deprivation. And longer or excessive deprival would not only be regarded as irrational, but closer to or bordering on perversity. Resultantly, such an action would be violative of procedure established by l....
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....hearing to the persons concerned. Instead of adopting that procedure, the House itself chose to direct withdrawal of the petitioners from the meetings of the Assembly for a period of one year - which direction is neither ascribable to the dispensation prescribed in Part XVIII of the Rules or Rule 53 enabling the Speaker to do so. 51. As aforementioned, it is not a case of procedural irregularity as such. Whereas, the decision taken by the House in this case, is one of substantive illegality in directing suspension beyond the period of remainder of the Session in which the motion was presented. We say so because, the period of suspension in excess of the period essential to do so much less in a graded manner including on principle underlying Rule 53, would be antithesis to rational or objective standard approach for ensuring orderly functioning of the House during the ongoing Session. 52. Reverting to the challenge to the impugned resolution being grossly irrational. As noticed earlier, Rule 53 provides for a graded (rational and objective standard) approach. The timeline as specified in Rule 53 is with a view to address the immediate concern of the House for ensuring orderly ....
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....ould entail in deprivation of the constituency to be represented in the House. It is true that right to vote and be represented is integral to our democratic process and it is not an absolute right. Indeed, the constituency cannot have any right to be represented by a disqualified or expelled member. However, their representative cannot be kept away from the House in the guise of suspension beyond the necessary (rational) period linked to the ongoing Assembly Session, including the timeline referred to in Article 190(4) of the Constitution and Section 151A of the 1951 Act. 55. Be that as it may, suspension is essentially a disciplinary measure. It must follow that suspension for a period of one year would assume the character of punitive and punishment worse than expulsion. For, suspension for long period and beyond the Session has the effect of creating a de facto vacancy though not a de jure vacancy. The argument of the State that despite suspension from the House, the members would continue to discharge all other functions outside the House as an elected representative. This plea, in our view, is tenuous. For, the effect of such suspension is visited not only on the constitue....
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....o. 14, in paragraphs 284 to 293. The same reads thus: "284. Finally, in Barton supra at Footnote No. 9 it involved the suspension of a Member from the Legislative Assembly of New South Wales. The power of suspension for an indefinite time was held to be unavailable to the Legislative Assembly as it was said to have trespassed into the punitive field. The judgment was delivered by the Earl of Selborne. Referring to Kielley Edward Kielley vs. William Carson, (1842) 4 Moore PC 63 : 13 ER 225 and Doyle Thomas William Doyle vs. George Charles Falconer, (1865­67) LR 1 PC 328 : 36 LJPC 33 : 15 WR 366 the Court observed: "It results from those authorities that no powers of that kind are incident to or inherent in a Colonial Legislative Assembly (without express grant), except 'such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute'. Powers to suspend toties quoties, sitting after sitting, in case of repeated offences (and, if may be, till submission or apology), and also to expel for aggravated or persistent misconduct, appear to be sufficient to meet even the extreme case of a Member wh....
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....iminal charge is pending against the respondent does not affect or obstruct the course of business in the Chamber or relate to its orderly conduct." 290. This argument was rejected and the House of Lords allowed the appeal. Lord Mac Naghten, delivering the judgment, initially observed that: "... no one would probably contend that the orderly conduct of the Assembly would be disturbed or affected by the mere fact that a criminal charge is pending against a Member of the House." (475) 291. But he found that certain peculiar circumstances of the case deserved to be given weight. The Court went on to hold thus: "If the House itself has taken the less favourable view of the plaintiff's attitude [an insult and challenge to the House], and has judged that the occasion justified temporary suspension, not by way of punishment, but in selfdefence, it seems impossible for the Court to declare that the House was so wrong in its judgment, and the Standing Order and the resolution founded upon it so foreign to the purpose contemplated by the Act, that the proceedings must be declared invalid."(476) (emphasis supplied) 292. The above case thus e....
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....e member from the Legislative Assembly of the New South Wales. In that case, the resolution passed by the House did not mention about the time frame of suspension of the member. That was challenged by the aggrieved member being irrational and unnecessary. That plea was considered by the Privy Council keeping in mind its earlier decisions in Edward Kielley supra at Footnote No. 63 and Thomas William Doyle supra at Footnote No. 64. (These decisions have been adverted to in paragraph 283 by the Constitution Bench as well). After noticing these decisions, the Privy Council in Barton supra at Footnote No. 9 noted that those authorities had dealt with situation that no powers of that kind are incident to or inherent in a Colonial Legislative Assembly (without express grant), except such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute. 60. It must follow that in absence of any express provision bestowing power in the Legislature to suspend its member(s) beyond the term of the ongoing Session, the inherent power of the Legislature can be invoked only to the extent necessary and for proper exercise of the function....
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....is, in their Lordships' judgment, reasonably necessary for the proper exercise of the functions of any Legislative Assembly of this kind; and it may very well be, that the same doctrine of reasonable necessity would authorize a suspension until submission or apology by the offending member; which, if he were refractory, might cause it to be prolonged (not by the arbitrary discretion of the Assembly, but by his own wilful default) for some further time. ..." Again, it went on to observe as follows: "... If these are the limits of the inherent or implied power, reasonably deducible from the principle of general necessity, they have the advantage of drawing a simple practical line between defensive and punitive action on the part of the Assembly. A power of unconditional suspension, for an indefinite time, or for a definite time depending only on the irresponsible discretion of the Assembly itself, is more than the necessity of self-defense seems to require, and is dangerously liable, in possible cases, to excess or abuse. ..." (emphasis supplied) 62. The essence of the analysis done in Barton supra at Footnote No. 9 is about the logic and rationality behind the ....
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....to declare the proceedings against the member invalid. In other words, the Privy Council was considering a written Standing Order and its efficacy. 65. In the present case, the House has already adopted the Rules for conduct of its business and Rule 53 of the Rules expressly provides for the mechanism regarding suspension of its member. Indubitably, the source of powers and privileges of Legislatures in India is derived from Article 105(3) in case of Parliament and Article 194(3) concerning the State Legislature. In absence of a law to define such powers and privileges, as of now, it can only exercise those powers as existed in the House of Commons of the Parliament of United Kingdom at the commencement of the Constitution. 66. In the celebrated treatise of Sir Thomas Erskine May The Law, Privileges Proceedings and Usage of Parliament, Fifteenth (1950) Edition (See Chapter VII under the heading "Proceedings upon the naming of a Member" at pages 451-452.) dealing with the Parliamentary privileges, it is noted as follows: "if for a subsequent occasion, in default of an order by the House that the suspension of the member shall terminate when the House orders that it sh....
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....n, and the Member or Members named by him as having refused to obey his direction shall thereupon and without any further question being put be suspended from the service of the House during the remainder of the session." On conjoint reading of subclause (2) and (4) of the above cited Standing Order No. 22, it is seen that suspension of a member on the first occasion can be for a period of five days or the remainder of the session whichever is earlier. Even for the second occasion the period of suspension is only twenty days or remainder of the Session, whichever is earlier. On any subsequent occasion the period of suspension shall be until the House shall resolve that the suspension of such member do terminate. 68. The Orissa High Court in Sushanta Kumar Chand supra at Footnote No. 10 had occasion to deal with a case of warrant issued by the Speaker of the Assembly to detain the contemnor for seven days' simple imprisonment. It was urged that as the unexpired period of sentence was beyond the term of the Session of the House, the same had lapsed in law. The High Court answered the challenge in favour of the petitioners after noticing passage from Sir Thomas Erskine May and H....
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....ent power of the Assembly. Even, Rule 53 bestows authority in the Speaker to take action against the member only for ensuring orderly functioning of the House. Same logic must apply to the exercise of inherent limited power by the House, even if it may not be de facto under Rule 53. 70. Be it noted, had it been a case of expulsion of the member by the House in terms of Section 151A of the 1951 Act, the Election Commission would move into action and rather be obliged to take steps not later than six months to fill in the vacancy so caused subject to the situation referred to in the proviso therein - so that the constituency could be duly represented in the House at the earliest opportunity. Concededly, the Legislative Assembly is a conglomeration of members chosen by direct election from the territorial constituencies in the State (as per Article 170). That presupposes that all territorial constituencies must be duly represented in the Assembly in continuum. In any case, their representation cannot be deprived for longer period than necessary for the orderly functioning of the House during the Session. For that reason, the statutory mandate postulated vide Parliamentary law Secti....
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....he Assembly reducing the original period of one year to six months as valid, however, for the view that we have taken, the said decision will be of no avail. 72. Resultantly, we have no hesitation in concluding that the impugned resolution suffers from the vice of being unconstitutional, grossly illegal and irrational to the extent of period of suspension beyond the remainder of the concerned (ongoing) Session. Further, it is not a case of mere procedural irregularity committed by the Legislature within the meaning of Article 212(1) of the Constitution. 73. Although learned counsel appearing for the parties had raised diverse contentions, we need not dilate further having opined that in exercise of inherent power of the House, the suspension of the members could not have, in any case, exceeded the remainder period of the ongoing Session. The concerned Session having concluded long back in July 2021, the petitions ought to succeed and could be disposed of with a declaration that suspension beyond the remainder of the ongoing Session in which the resolution was passed, is nullity, unconstitutional and grossly illegal and irrational. The same cannot be given effect to beyond the....
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....nicled of their predecessors. That legacy should become more prominent than the rumpus caused very often. Aggression during the debates has no place in the setting of country governed by the Rule of Law. Even a complex issue needs to be resolved in a congenial atmosphere by observing collegiality and showing full respect and deference towards each other. They ought to ensure optimum utilisation of quality time of the House, which is very precious, and is the need of the hour especially when we the people of India that is Bharat, take credit of being the oldest civilisation on the planet and also being the world's largest democracy (demographically). For becoming world leaders and selfdependant/ reliant, quality of debates in the House ought to be of the highest order and directed towards intrinsic constitutional and native issues confronting the common man of the nation/States, who are at the crossroad of semi 88 sesquicentennial or may we say platinum or diamond jubilee year on completion of 75 years postindependence. Being House of respected and honourable members, who are emulated by their ardent followers and elected from their respective constituency, they are expected to show....