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“Worse than Exclusion; Penalty On Constituency”: Supreme Court on Suspension 12 BJP MLA’s In Maharashtra Assembly For One Year

By Komal Kinger      Jan 13, 2022      0 Comments      2,062 Views

On 11th January 2022 the Hon'ble Supreme Court in the case of Ashish Shelar And Ors. V. Maharashtra Legislative Assembly And Anr, Writ Petition, Civil Case No. 797/2021expressed interest in reviewing the Maharashtra Legislative Assembly's decision to suspend 12 BJP MLAs for one year for suspected misbehaviour on July 5, 2021, because the duration of suspension was excessive.

The one-year ban was "worse than expulsion," according to a bench consisting of Justice AM Khanwilkar and Dinesh Maheshwari because the constituency remained unrepresented. If someone gets expelled, there is a procedure in place to fill the position. The one-year suspension will be considered a punishment for the constituency.

As per the Constitutional laws, Article 190 of the Indian Constitution, 1950, deals with the parliamentary vacation of seats. An individual may not serve in both houses of a state's legislature. That person's seat in the Legislatures of all such States shall become vacant after the expiry of such period as the President may specify in rules promulgated by him. A member's seat may be declared vacant if he or she is absent from all House meetings for a period of sixty days so, the legislative Assembly does not have the authority to suspend a member for more than 60 days.

This is a far worse decision than punishment. When these constituents are not present in the House, no one can represent them... "This is punishing the constituency as a whole, not just the member," Justice Khanwilkar said.

It states that "no one can serve in both houses of a state legislature or in the legislatures of two or more states at the same time." If a person is elected to the Legislature of two or more states, his position in the Legislature will become vacant at the end of the designated period set by the President unless he resigns his seat in all but one of the states. If a member of the State Legislature fails to attend all meetings for a period of sixty days (excluding periods when the House is prorogued or suspended for more than four days), the House has the authority to declare his seat vacant [Article 190 (3), (4)]. A member's seat becomes vacant if he or she is disqualified under Clause (1) of Article 191.

The court emphasised that a constituency cannot be unrepresented for more than six months under Constitutional rules. As a result, the hearing has been rescheduled until next Tuesday, January 18, 2022.

Senior Advocate C Aryama Sundaram representing the State of Maharashtra argued that the Court cannot evaluate the level of punishment imposed by a legislative assembly, but the Hon'ble court rejected his argument.

The bench stated that it will not discuss any other parts of the case other than the sentence amount. "...we can declare that the suspension decision can only be in effect for 6 months, after which it will be subject to a constitutional bar," Justice Khanwilkar informed Sundaram.

The petitioners' lawyers have argued that the Court has the jurisdiction to examine the correctness of the punishment imposed by the House. Senior lawyers Mahesh Jethmalani, Mukul Rohatgi, Neeraj Kishan Kaul, and Siddharth Bhatnagar argued on behalf of the parliamentarians who had been suspended. According to the petitioners, members of the house who were suspended for contempt of parliament violated the principles of Natural Justice. 

Bhatnagar argued at the end of the session that the suspension could not be more than six months. "If seats are permitted to be vacant, it has a significant impact on democracy; it is worse than expulsion," he argued, adding that this might allow the administration to manipulate the house's strength to achieve majority votes in critical circumstances.

BRIEF OVERVIEW OF THE CASE

On 14th December 2020 last year the Hon'ble Supreme Court sought statements from the Maharashtra Legislative Assembly and the state government on the complaints filed by these 12 BJP MLAs.

These 12 BJP MLAs have filed petitions to overturn the Assembly's decision to suspend them for one year.

State Parliamentary Affairs Minister Anil Parab proposed the suspension, which was approved by a Simple majority. Sanjay Kute, Ashish Shelar, Abhimanyu Pawar, Girish Mahajan, Atul Bhatkhalkar, Parag Alavani, Harish Pimpale, Yogesh Sagar, Jay Kumar Rawat, Narayan Kuche, Ramsatpute, Ram Satpute, and Bunty Bhangdia are among the 12 members who have been suspended from the board. After an alleged confrontation in the Speaker's office, they were suspended from the Assembly on July 5, 2020.



Tags:
Supreme Court of IndiaBJP leadersMaharashtra AssemblyWrit Petition Civil Justice AM KhanwilkarJustice Dinesh MaheshwariArticle 190 (3)State Parliamentary Affairs MinisterAnil Parab
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