SC’s New Year Gift!
   Date :07-Feb-2022

current trend in law
By Adv. R. S. Agrawal :
Supreme Court, has given the petitioners New Year Gift with its declaration that the impugned resolution directing the petitioners’ suspension beyond the remainder period of the Monsoon Session is non est in the eyes of law, nullity, unconstitutional , substantively illegal and irrational.
THROUGH the judgement of the writ petition filed by Ashish Shelar and 11 other BJP MLAs against suspension of their membership of the Maharashtra State Legislative Assembly on July 5, 2021 for one year, alleging “in disciplined and unbecoming behavior” on their part, in the Speaker’s Chamber; a 3-Judge Bench consisting of Justices A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar, at the Supreme Court, has given the petitioners New Year Gift on January 28, 2022 with its declaration that the impugned resolution directing the petitioners’ suspension beyond the remainder period of the Monsoon Session is non est in the eyes of law, nullity, unconstitutional , substantively illegal and irrational.
The SC has declared further, the said resolution to be ineffective in law insofar as the period beyond the remainder of the stated Session in which the resolution came to be passed. The Court has pointed out, had it been a case of expulsion of the member by the House in terms of section 151A of the Representation of People Act, 1951, 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. In any case, the people cannot be deprived of representation for longer period than necessary for orderly functioning of the House during the Session .For that reason, the statutory mandate postulated vide section 151A (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), the constituency cannot be denied representation in the House beyond a limited period due to fortuitous situation. Moreover, the expelled member free to contest the mid-term election and to get re-elected 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 it 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. The SC has said that it has no hesitation I 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. In the firm opinion of the Supreme Court, 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 and 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 unconstitutional and grossly illegal. For that reason, The court felt that it was unnecessary for it to dilate on other aspects of the case and it declined to examine those other aspects. According to the SC, it is unnecessary to underscore that Parliament as well as the 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 are propounded for governing 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 are reflection of the contemporary Social fabric. The behavioral pattern of the society is manifested or mirrored in the thought process and actions of the members of the House during the debates. It is in public domain (through print, electronic and social media) that the members of the Parliament or Assembly / Council of the State, spend much of the time in a hostile atmosphere. The Parliament / Legislative Assembly are becoming more and more intransigent place. The philosophical tenet, one must agree to disagree is becoming is a seldom seen or a rarity during the debates. It has become common to hear (read) that the House could not complete its usual scheduled business and most of the time had been spent in jeering and personal attacks against each other instead of erudite, constructive and educative debates consistent with the highest tradition of the august body. This is the popular sentiment gaining ground amongst the common man. This is disheartening for the observers.
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 showing full 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 (demographically). The Supreme Court has stated that as a result of the stated declaration, the petitioners are entitled for all consequential benefits of being members of the Legislative Assembly, on and after the expiry of the period of the remainder of the concerned Session in July 2021. The Supreme Court has allowed the petition in terms of the directions stated in the judgement.