Explained | Can the suspension of MPs be subject to judicial review?

Can members of legislative assemblies be expelled beyond one session? Does a one-year ban violate the Constitution?

Can members of legislative assemblies be expelled beyond one session? Does a one-year ban violate the Constitution?

The story so far: Twelve BJP lawmakers were suspended for one year by the Maharashtra Assembly last July for alleged disorderly conduct. The unusually long duration of the suspension has been questioned by the Supreme Court, which intends to challenge the action of the Assembly. The court reserved judgment after hearing elaborate arguments. The main question before the court is whether a one-year suspension is valid.

What happened on July 5, 2021?

There was a ruckus in the Assembly when the Maha Vikas Aghadi (MVA) government introduced a resolution requesting empirical data on OBCs (Other Backward Classes) from the Union government. The House adjourned several times before the resolution was passed, as BJP members rushed to the House well and were accused of damaging the speaker’s microphone and seizing the mace. Later, Bhaskar Jadhav, a Shiv Sena MP who was in the chair during the incidents, said that while he was in the vice president’s room, some members rushed in and abused him. .

Read also | Suspending an MP is worse than expulsion: Supreme Court

A resolution proposed by the Minister of Parliamentary Affairs was later passed by the House suspending 12 MPs—Dr. Sanjay Kute, Ashish Shelar, Abhimanyu Pawar, Girish Mahajan, Atul Bhatkhalkar, Harish Pimple, Jaykumar Rawal, Yogesh Sagar, Narayan Kuche, Bunty Bhangdiya, Parag Alavani and Ram Satpute.

They were banned from entering the legislative premises for 12 months.

What issues did the Supreme Court raise?

During the hearing, a bench, consisting of Judge AM Khanwilkar, Judge Dinesh Maheshwari and Judge CT Ravikumar, questioned the rationality of suspending members beyond an ongoing session.

The House also cited Article 190(4) of the Constitution, which states that the House may declare vacant the seat of an absent Member for 60 days without leave, to consider whether a possible suspension could cross beyond this 60-day limit.

In addition, the Representation of the People Act 1951 states that any vacancy in the House must be filled by a by-election within six months of its occurrence, the bench pointed out, and questioned whether a constituency could be no represented in the Assembly. for an entire year given this six-month limit.

Furthermore, suspension seemed to have worse consequences than outright expulsion from the legislature, as a by-election will be held within six months; while a one-year suspension does not necessarily entail filling the vacancy. The Chamber also wondered about the likely consequences of an unlimited suspension power for democracy, as it could be misused to change the composition of a Chamber in which a Government only has a narrow majority.

What does the state government say?

State government counsel argued that there is no limit to the power of the legislature to punish breach of privilege or disorderly conduct during its proceedings. Once the power to discipline a member for disorderly conduct is recognized, there can be no judicial review of how it is exercised. Under Rule 53 of the Maharashtra Assembly Rules, the Speaker could order a member to withdraw from the Assembly for disorderly conduct during the day or the rest of the session. However, there is no such limitation when the full House decides to impose a suspension.

In this context, counsel argued that where the power to expel a Member is available, the power to suspend, being a lesser penalty, is also available to the House at all times. With respect to the provision to declare a seat vacant if the member is absent for 60 days, the government argued that it is the House that declares the seat vacant, and that this is not a necessary consequence of the absence of a Member for 60 days during which the House met. Also, during suspension, a member continues to hold office, but only loses their vote in the Legislative Assembly.