The SupremeCourt bench led by Justice Khanwilkar to hear pleas by BJP MLAs led by Ashish Shelar challenging Maharashtra Legislative Assembly’s resolution of suspending them for a period of 1 year.
Sr Adv Aryama Sundaram: How far would the scope of judicial review apply for punishment?
SC: It will be a like a case of interpretative process. It's not about judicial review.
Sundaram: What your lordship feel is in 190(4) limits have to be applied.
Sundaram: The power of legislature to punish for privileges etc does not have any limitations either in scope of the power or period for which it can be exercised.
How far does this power go?
SC: If legislature makes rules or act, would there not be on the parliamentary act?
SC: I would like your attention on Para 59 of Sharma's judgement. It has been quoted in many cases, in Rampal also.
Sundaram: I'll get it.
SC: Once this statement of law is to be taken forward then if it is statutory or not does not matter. We won't go into those defects.
SC: It starts with "Seeing that it is a petition under Article 32.."
Sundaram: Reads the relevant paragraph
SC: What flows from this statement is it can be established as law under 21 and then it is effective per se.
These rules are benchmark, what are the rights of stakeholders. We don't have to go into statutory or non statutory.
Gujrat judgement misses this.
Sundaram: My submission is this. Rules are the procedure no doubt. If the speaker is to act he cannot depart from the rules. But the legislature cannot..
SC: We are saying the same thing. What your saying is its not statutory.
Sundaram:My Lord is correct
Sundaram: So far the house is concerned it is guideline, they can always fall away from it.
SC: Deviation can be about procedure, not substantive matter.
Sundaram: I'm going one step further. The power of the legislature under A193 is not circumscribed by rules at all.
Sundaram: Rules are not concerned about legislature. They are about the privilege committee etc. I'm distinguishing between speaker, privilege committee and the house itself.
SC: SC has repeatedly said it is not absolute. It is bound by the Constitution and the law made by
SC: the parliament.
Sundaram: Rules are not made by the parliament.
SC: Assist us on this aspect.
Sundaram: I'll deal with A194 and scope whether it has any bearing on our case. I will also deal with Rep of People Act.
Sundaram: When the leg assembly acts, it goes back to the constitution. There is no limit there.
SC: Once you go to that length, how do you apply the scale that actions are rational, justifiable and legal.
It is not untrammeled.
Sundaram: Let me take my lords to Raja Rampal.
May I take first 2007 3 SCC 284.
I'll deal with A193 and then Section 154A of Representation of People Act.
Reads page 187 of the report
Khanwilkar J: Brother Ravikumar do you have it?
Ravikumar J: Let him continue, I'll make a note of it.
Sundaram: My argument if you can expel, the suspension is less.
SC: It's the same thing in Barron's judgementIf it has been done in the past, it does not validate it.
We'll just reiterate, it is the Supreme Court that is supreme in interpreting the constitution, not legislature
Sundaram: Justice Maheshwari's question about the constituency. The constituents elected this man and then you expel him. Suspension is less than that.
Khanwilkar J: The same argument was rejected in Balton's case in 1886.
Sundaram: reads Balton
In that case it was an indefinite suspension not a particular period of time. The question is right of the constituents that fell from your lordship.
SC: There has to be a purpose of the suspension. That is to complete business in orderly fashion, not
SC: beyond that. That's what is in Raja Rampal.
Anything other than this is perhaps irrational. That's what we want you to assist us.
Maheshwari J: Mr Sundaram sir, we never said proportionality.
Khanwilkar: This specific issue has never arisen before so we have to collate
Khanwilkar J: of judgements.
Sundaram: That's why we suggested it be taken up by constitutional bench.
Khanwilkar K: The judgement is already in place. It's a misnomer that every issue about constitution has to go to Constitution bench.
Sundaram: Then the court can't function
Khanwilkar J: It will be lawyer's paradise.
Sundaram: No your lordship. We'll miss our Mondays and Fridays.
Sundaram: Reads from Raja Rampal judgement The argument taken was suspending would be the same thing.
SC: Citizen cannot argue for the expulsion of their representative but when he's expelled beyond 6 months,
Sundaram: I'll deal with it. I'm just reading relevant Paras.
SC: The decision has to be rational. There has to be an overpowering reason that he should not be allowed to even attend the next session.
The core issue is principle of rational decision.
Sundaram: I have to deal with Section 151. I'll deal with it separately. I just wanted to read this so we don't have to keep coming back to it. This is not about what your lordship is saying. That I will deal with separately.
Any para I'm reading is to say this is what my lords
Sundaram: I have to deal with Section 151. I'll deal with it separately. I just wanted to read this so we don't have to keep coming back to it. This is not about what your lordship is saying. That I will deal with separately.
Any para I'm reading is to say this is what my lords
Sundaram: have held, how do we apply?
If conduct lowers the dignity of the session, not just suspension, he can be expelled.
We hold that expulsion does not violate any rights of the constituents.
SC: The query we are considering, suspending for a year, re-election is ruled out
SC: You're saying suspension is less than expulsion but it's coming out to be the opposite.
Sundaram: We will deal with Section 151A.
SC: It won't be just 151A but also in the context of rationality generally. There has to be some rational. Your decision of 1 year means
SC: constituents won't have a representative for 1 year. When seat becomes vacant for 6 months, re-election has to happen.
We are talking about spirit of parliamentary law. That is how we test rationality.
Sundaram: Absolutely. I have to deal with it and I will.
Ravikumar J: Election Commission also has a role. If vacancy arose, they have to conduct election. Your taking away their right too. In case of suspension there will be no election while in expulsion it will be.
Another danger to the democracy. If there is slender margin for
Ravikumar J: majority and people are suspended. What happens then?
Sundaram: Absolutely. I will address that.
Sundaram: It's been equated to the rights of your lordships as a court of record.
Continues reading
The only limitation court recognises is the contempt power which cannot divest court of its jurisdiction.
Sundaram: These are not my answers. Just see what I'm trying to say please. The idea is it should work without obstruction when the house is prorogued.
SC: Imagine he's expelled and stands disqualified for re-election. That cannot be. Why? The assembly can only discuss the
SC: privilege of its own business. In your case you have passed suspension of 1 year.
Sundaram: In my case my lord
SC: You don't let us complete.
We are talking about constitutionality, legality and rationality. Whether it makes sense to common man.
SC: It was for obstructing function of that day, maximum that session. Why beyond? That you have to justify rationally.
Sundaram: Now I'll deal with limited remedial power
SC: Power you have to suspend but for what purpose, what period?
Sundaram: Your lordship has to see if the period is circumscribed. If you say no, then your lordships impose a period.
SC: No. It cannot be period mention in 194 or S151..
Sundaram: Because they circumscribe the period.
SC: because it deprives constituency of a representative
SC: The limit has been specified, rationality will have to be deduced from there.
Maheshwari J: A174 provides for sessions. What is the question of meeting in sessions only?
Khanwilkar J: It will be about the session only. New session begins means new business.
Sundaram: Once he's expelled he's completely gone.
Maheshwari J: The house meets in sessions. A particular session he may be suspended. But beyond that the rationality question comes.
Khanwilkar J: You cannot segregate. They come together
Sundaram: That's in para 151.
