ASHISH SHELAR & ORS. v. THE MAHARASHTRA LEGISLATIVE ASSEMBLY & ANR.

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 Dictionary53 is as follows: B “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 Dictionary54, the expression “disorderly” has been defined thus: C “disorderly adj. 1 untidy; confused. 2 irregular; unruly; riotous. 3 Law contrary to public order or morality.” The expression “disorderly conduct” as defined in Black’s Law Dictionary55 is as follows: D “disorderly conduct. See CONDUCT Conduct, n. (15c) Personal behavior, whether by action or inaction, verbal or nonverbal; the manner in which a person behaves; collectively, a person’s deeds. · Conduct does not include the actor’s natural death or a death that results from behavior consciously engaged in but not reasonably expected to have this result. — conduct, vb.”

40Copy pinpoint40. Taking the totality of the meaning of expressions “grossly” and “disorderly”, it must follow that the conduct of the member is such that it was impeding the smooth or orderly functioning of the House, and may also be of such a nature that it is likely to bring disrepute to the House. It may involve varied situations and, therefore, implied exercise of rational corrective mechanism is quintessential. The action of suspension or directing withdrawal of a member from the meetings of the Assembly is in the nature of self-security and is essentially directed to ensure that the House can then protect itself against obstruction, or disturbance of its ongoing proceedings owing to the misconduct of any of its members. That power is different from the privilege to inflict punishment on a member, which may require higher degree of deprivation 53 6th Edition 54 8th Edition 55 H 11th Edition

ASHISH SHELAR & ORS. v. THE MAHARASHTRA LEGISLATIVE 805 ASSEMBLY & ANR. [A. M. KHANWILKAR, J.]

of the member over and above participating in the proceedings of the A House during the Session. In a given case, it can be in the form of expulsion being the highest degree of exclusion of the member from the House. Yet another would be penal, in case of ordering imprisonment owing to act of contempt of the House. We shall elaborate on this aspect a little later while dealing with the challenge on the ground of impugned B resolution being grossly irrational.

41Copy pinpoint41. Suffice it to observe that Rule 53 of the Rules provides for a graded (rational and objective standard) approach to be adopted by the Speaker for ensuring orderly conduct of the business of the House. In the present case, however, the Minister for Parliamentary Affairs introduced a motion in the House for initiating action for contempt of the C House, which the Chairman allowed it to be put to vote instantly at 14:40 hours on the same day and it was passed by the House by majority in no time. Indeed, if it is 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 D 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.

42Copy pinpoint42. 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 E 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. F

43Copy pinpoint43. 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 being without jurisdiction. It is a different matter that if the G Speaker/Chairman was to do so, it could be only under Rule 53 in a graded manner for the remainder of the day and for repeat misconduct in the same Session — for the remainder of the Session. That would be a logical and rational approach consistent with the constitutional tenets. H

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44Copy pinpoint44. If the House takes upon itself to discipline its members, it is expected to adopt the same graded (rational and objective standard) approach on the lines predicated in Rule 53. That would be a case of rational action taken by the House as per the procedure established by law. The expression “rational” is defined in Black’s Law Dictionary56 as follows: B “rational, adj. (14c) 1. Endowed with the faculties of cognition traditionally thought to distinguish humans from the brutes <man as a rational being>. 2. Based on logic rather than emotion; attained through clear thinking; not absurd, preposterous, foolish, or fanciful <a rational conclusion>. 3. (Of a person) able to think clearly and C sensibly; clear-headed and right-minded <Jones was rational at the time of the woman’s death>.” As opposed to a rational decision, it would be a case of irrational or preposterous approach. The expression “irrational” as defined in Black’s Law Dictionary57 is as follows: D “irrational, adj. (16c) Not guided by reason or by a fair consideration of the facts <an irrational ruling>. See ARBITRARY. arbitrary, adj. (15c) 1. Depending on individual discretion; of, relating to, or involving a determination made without consideration E of or regard for facts, circumstances, fixed rules, or procedures.

2. (Of a judicial decision) founded on prejudice or preference rather than on reason or fact. • This type of decision is often termed arbitrary and capricious. Cf. CAPRICIOUS. — arbitrariness, n.”

45Copy pinpoint45. A priori, if the resolution passed by the House was to provide for suspension beyond the period prescribed under the stated Rule, it would be substantively illegal, irrational and unconstitutional. In that, the graded (rational and objective standard) approach predicated in Rule 53 is the benchmark to be observed by the Speaker to enable him to ensure smooth working of the House, without any obstruction or impediment G and for keeping the recalcitrant member away from the House for a period maximum upto the remainder of the entire Session.

56 11th Edition 57 H 11th Edition

ASHISH SHELAR & ORS. v. THE MAHARASHTRA LEGISLATIVE 807 ASSEMBLY & ANR. [A. M. KHANWILKAR, J.]

46Copy pinpoint46. Inflicting suspension for a period “beyond the period necessary” A 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. B

47Copy pinpoint47. 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 Pal58. That action would not visit the member with disqualification and also allow him to get re-elected 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 law and also manifestly arbitrary, grossly irrational and illegal and violative of Articles 14 and 21 of the Constitution.

48Copy pinpoint48. Be it noted that suspension beyond the remainder period of the ongoing Session would not only be grossly irrational measure, but also violative of basic democratic values owing to unessential deprivation of the member concerned and more importantly, the constituency would remain unrepresented in the Assembly. It would also impact the democratic setup as a whole by permitting the thin majority Government (coalition Government) of the day to manipulate the numbers of the Opposition Party in the House in an undemocratic manner. Not only that, the Opposition will not be able to effectively participate in the discussion/debate in the House owing to the constant fear of its members being suspended for longer period. There would be no purposeful or meaningful debates but one in terrorem and as per the whims of the majority. That would not be healthy for the democracy as a whole.

49Copy pinpoint49. It is well-established that fundamental rights are guaranteed by Part III of the Constitution, out of which Articles 14, 19 and 21 are the most frequently invoked to test the validity of the executive as well as legislative actions when these actions are subjected to judicial scrutiny. Different Articles in the Constitution under chapter Fundamental Rights and the Directive Principles in Part IV ought to be read as an integral 58 supra at Footnote No.14 H

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A and incorporeal whole with possible overlapping with the subject matter of what is to be protected by its various provisions particularly the fundamental rights. The sweep of Article 21 is expansive enough to govern the action of dismembering a member from the House of the Legislative Assembly in the form of expulsion or be it a case of suspension by directing withdrawal from the meeting of the Assembly for the B remainder of the Session.

50Copy pinpoint50. Be that as it may, it is evident from the impugned resolution that it has been passed by the majority votes in the House immediately after it was put to vote by the Chairman. It was in fact introduced as a motion for initiating action for having committed contempt of the House C which ordinarily ought to have proceeded under Part XVIII of the Rules dealing with Privileges. That would have required constitution of a Committee of Privileges to enquire into the entire matter by giving opportunity of 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.

51Copy pinpoint51. 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. F

52Copy pinpoint52. 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 conduct of the business of the House in the given G Session. This action is implied on the doctrine of necessity. The Speaker and for that matter, even the House as a whole or by majority, would be within its power to resort to such a mechanism being rational measure. Exceeding the stated timeline is a substantive matter and not a procedural irregularity. It would raise a basic question as to what purpose would be served by withdrawing the member from the House for successive

ASHISH SHELAR & ORS. v. THE MAHARASHTRA LEGISLATIVE 809 ASSEMBLY & ANR. [A. M. KHANWILKAR, J.]

Sessions falling within that period of one year. Indeed, if the conduct of the member is gross warranting his removal from the Assembly even beyond the period of sixty days [Article 190(4)] or six months (Section 151A of the 1951 Act), the House is capable of invoking its inherent power of expulsion of such a member, which is a greater power.

53Copy pinpoint53. Indubitably, suspension for a day or for the remainder of the B Session, would be of a lesser degree of exercise of that power. However, it is not open to contend that the higher degree of power would include power to suspend the member beyond the period essential to keep him/ her away from the Assembly for ensuring orderly conduct of the business of the House. As expounded in Amarinder Singh59, the important consideration for scrutinising the exercise of legislative privileges is whether the same is necessary to safeguard the integrity of the legislative functions. This Court had recognised that the Legislature’s power to punish for its contempt was not untrammelled. That power of legislative chamber to punish for its own contempt must coincide with the Legislature’s interest in protecting the integrity of its function. In other words, the suspension of a member must be preferred as a short-term or a temporary measure for restoring order in the functioning of the concerned Assembly Session for completing its scheduled business within time and by way of disciplinary measure against the incorrigible member(s). E

54Copy pinpoint54. The word “suspension” is necessarily linked to attendance of the member in the House. Thus, the suspension may be resorted to merely for ensuring orderly conduct of the business of the House during the concerned Session. Anything in excess of that would be irrational suspension. This is so because the member represents the constituency from where he has been duly elected and longer suspension would 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.

59 supra at Footnote No.15 (paras 47 and 66) H

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55Copy pinpoint55. 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 constituency that goes unrepresented for potentially long and unessential time, but also on the functioning of the Assembly itself. Apart from a role in bringing to light the special needs or difficulties of the constituency, a member also plays a role in various motions, debates, votes, etc.60. In any case, this plea cannot whittle down the logic requiring limited action essential for orderly functioning of the House on the given day or at best, the Session for completion of its scheduled business for the relevant Session.

56Copy pinpoint56. Suffice it to observe that one-year suspension is worse than “expulsion”, “disqualification” or “resignation” — insofar as the right of the constituency to be represented before the House/Assembly is concerned. In that, long suspension is bound to affect the rights harsher than expulsion wherein a mid-term election is held within the specified time in terms of Section 151A of the 1951 Act, not later than six months. E Thus, the impugned resolution is unreasonable, irrational, and arbitrary and liable to be set aside.

57Copy pinpoint57. Having said this, we may now turn to two decisions of the Privy Council referred to and discussed by the Constitution Bench in Raja Ram Pal61, in paragraphs 284 to 293. The same reads thus: F 60 Some of the functions of the elected representative in the House/Assembly (taken from the Maharashtra Legislative Assembly Rules) would indicate that the member would not be able to take part in following matters, if suspended: (a) Moving of a motion which requires decision by the Assembly, including by Division (Rules 23, 40, 41); (b) Taking part in a debate on a motion including speeches (Rules 33,34); (c) Asking Questions on Statements made by Ministers (Rule 47); (d) Making of personal explanations (Rule 48); (e) Questions on matters of public concern from G Ministers (Rule 68); (f) Short Notice questions for immediate reply on questions of urgent nature (Rule 86); (g) Private member bills (Rule 111); (h) Discussions on matters of sufficient public importance (Rule 94); (i) No confidence motions (Rule 95); (j) Adjournment motions (Rule 97); (k) Participation as members of Committees, including the Committee for consideration of matters of public importance, Business Advisory Committee, Public Accounts Committee, Committee on Estimates, etc (Part XV of the Rules). H 61 supra at Footnote No.14

ASHISH SHELAR & ORS. v. THE MAHARASHTRA LEGISLATIVE 811 ASSEMBLY & ANR. [A. M. KHANWILKAR, J.]

“284. Finally, in Barton62 it involved the suspension of a Member A 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 Kielley63 and Doyle64 the Court observed: B “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’. C 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 whose conduct is habitually obstructive or disorderly. To argue that expulsion is the greater power, and suspension the less, and that the greater must include all degrees of the less, seems to their Lordships fallacious. The rights of constituents ought not, in a question of this kind, to be left out of sight. Those rights would be much more seriously interfered with by an unnecessarily prolonged suspension than by expulsion, after which a new election would immediately be held.” (emphasis supplied)

285. The Court went on to examine what is necessary and found that an indefinite suspension could never be considered necessary. F

286. The learned counsel for the petitioners have relied on the above distinction and submitted that the limited power does not envisage expulsion and can only be used for ex facie contempts.

287. We are not persuaded to subscribe to the propositions G advanced on behalf of the petitioners. Even if we were to accept

62 supra at Footnote No.9 63 Edward Kielley vs. William Carson, (1842) 4 Moore PC 63 : 13 ER 225 64 Thomas William Doyle vs. George Charles Falconer, (1865-67) LR 1 PC 328 : 36 LJPC 33 : 15 WR 366 H

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A this distinction as applicable to the Indian Parliament, in our opinion, the power to expel would be available.

288. Firstly, Barton65 which allows only a limited power to punish for contempt, finds that even though the Legislative Assembly does not have the power to indefinitely suspend, as that was punitive in nature, the Assembly would have the power to expel, considering expulsion a non-punitive power. Secondly, the objection that the limited power could only deal with ex facie contempt, is not tenable.

289. In the above context, reference may be made to Harnett v. Crick⁶⁶. This case involved the suspension of a Member of the Legislative Assembly of New South Wales until the verdict of the jury in the pending criminal trial against the Member had been delivered. The suspension was challenged. When the matter came up before the Privy Council, the respondents argued that: D “The Legislative Assembly had no inherent power to pass [the Standing Order]. Its inherent powers were limited to protective and defensive measures necessary for the proper exercise of its functions and the conduct of its business. They did not extend to punitive measures in the absence of express statutory power in that behalf, but only to protective measures. … The fact that a criminal 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 MacNaghten, 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 G House.” (475)

ASHISH SHELAR & ORS. v. THE MAHARASHTRA LEGISLATIVE 813 ASSEMBLY & ANR. [A. M. KHANWILKAR, J.]

“If the House itself has taken the less favourable view A 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 self-defence, it seems impossible for the Court to declare that the House was so wrong in its judgment, and the Standing B 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 establishes that even if the House C of legislature has limited powers, such power is not only restricted to ex facie contempts, but even acts committed outside the House. It is open to the Assembly to use its power for “protective” purposes, and the acts that it can act upon are not only those that are committed in the House, but upon anything that lowers the dignity of the House. Thus, D the petitioners’ submission that House only has the power to remove obstructions during its proceedings cannot be accepted.

293. It is axiomatic to state that expulsion is always in respect of a Member. At the same time, it needs to be borne in mind that a Member is part of the House due to which his or her conduct always has a direct bearing upon the perception of the House. Any legislative body must act through its Members and the connection between the conduct of the Members and the perception of the House is strong. We, therefore, conclude that even if Parliament had only the limited remedial power to punish for contempt, the power to expel would be well within the limits of such remedial contempt power.” (emphasis supplied in bolds) The two decisions of the Privy Council (Barton67 and Lawrence Joseph Harnett68) were pressed into service in that case to answer the plea that the Legislature has inherent limited remedial power to punish for contempt by way of suspension of its member and cannot resort to expulsion of the member. The Constitution Bench noticed that even these 67 supra at Footnote No.9 68 supra at Footnote No.⁶⁶ H

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A two decisions of the Privy Council, recognised inherent power of the Legislature to expel its member and, thus, negatived the plea of the petitioner in that regard. This Court after analysing the said decisions concluded that the Legislatures established in India by the Constitution, including Parliament under Article 105(3), need not be denied the claim to the power of expulsion arising out of remedial power of contempt. B

58Copy pinpoint58. What emerges from the stated conclusion is that the Constitution Bench declared that the inherent power of the Legislature is not absolute, but limited remedial power to punish for contempt and to take such measures as are necessary for orderly functioning of the proceedings of the House. C

59Copy pinpoint59. The case of Barton69 has been noticed in paragraph 284, which in turn had dealt with suspension of the 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 Kielley70 and Thomas William Doyle71. (These decisions have been adverted to in paragraph 283 by the Constitution Bench as well). After noticing these decisions, the Privy Council in Barton72 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.

60Copy pinpoint60. 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 functions of the House at the relevant point of time. No more. For that purpose, it could resort to protective and self-defensive powers alone and not punitive at all. This logic is reinforced from the dictum in Barton73 G wherein the Privy Council noted as follows: 69 supra at Footnote No.9 70 supra at Footnote No.63 71 supra at Footnote No.64 72 supra at Footnote No.9 73 H supra at Footnote No.9

ASHISH SHELAR & ORS. v. THE MAHARASHTRA LEGISLATIVE 815 ASSEMBLY & ANR. [A. M. KHANWILKAR, J.]

“…‘‘If a member of a Colonial House of Assembly is guilty of disorderly conduct in the House while sitting, he may be removed or excluded for a time, or even expelled …. The right to remove for self-security is one thing, the right to inflict punishment is another …. If the good sense and conduct of the members of Colonial Legislatures prove insufficient to secure order and decency of debate, the law would sanction the use of that degree of force which might be necessary to remove the person excluded from the place of meeting, and to keep him excluded.””74

61Copy pinpoint61. The Privy Council in the same decision then proceeded to observe as follows: C “… The principle on which the implied power is given confines it within the limits of what is required by the assumed necessity. That necessity appears to their Lordships to extend as far as the whole duration of the particular meeting or sitting of the Assembly in the course of which the offence may have been committed. It seems to be reasonably necessary that some substantial interval should be interposed between the suspensory resolution and the resumption of his place in the Assembly by the offender, in order to give opportunity for the subsidence of heat and passion, and for reflection on his own conduct by the person suspended; nor would anything less be generally sufficient for the vindication of the authority and dignity of the Assembly. …” (emphasis supplied) These observations are significant and apposite in the context of the issue under consideration. And we must lean in favour of adopting the same. Inasmuch as this exposition recognises the fact that implied or inherent power of the Legislature must be reckoned to the extent only to what is required to be done by the House for effective and orderly functioning of its business during the ongoing Session and not beyond. G This is more emphatically expounded by the Privy Council in the following words: “The power, therefore, of suspending a member guilty of obstruction or disorderly conduct during the continuance of any 74 1 L.R, P.C. 340 H

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A current sitting, 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- D defence seems to require, and is dangerously liable, in possible cases, to excess or abuse. …” (emphasis supplied)

62Copy pinpoint62. The essence of the analysis done in Barton75 is about the logic and rationality behind the need to suspend a member. It unambiguously held that the same be regarded as temporary by way of self-protective mechanism of the Legislature to ensure orderly conduct of its business in the House during the sitting. For that very reason, Rule 53 provides for a graded corrective action, namely, on the first occasion, the Speaker may suspend the member for the remainder of the day and if the misbehaviour is repeated in the same Session — for the remainder of the Session. The observations in Barton76 would reinforce this logic of need to adhere to a graded approach, which reads thus: “ …‘‘Suspension” must be temporary; the words, “suspended from the service of the House,” may be satisfied by referring them to the attendance of the member in the House during that particular sitting. So much as this is necessary to make the suspension effective, more is not. …” (emphasis supplied) 75 supra at Footnote No.9 76 H supra at Footnote No.9

ASHISH SHELAR & ORS. v. THE MAHARASHTRA LEGISLATIVE 817 ASSEMBLY & ANR. [A. M. KHANWILKAR, J.]

63Copy pinpoint63. In light of this decision, it must follow that only a graded approach is the essence of a rational and logical approach; and only such action of the Legislature which is necessary for orderly conduct of its scheduled business of the ongoing Session can be regarded as rational approach. Suspension beyond the Session would be bordering on punishing not only the member concerned, but also inevitably impact the legitimate rights of the constituency from where the member had been elected.

64Copy pinpoint64. In the case of Lawrence Joseph Harnett77, the question was about the challenge to the Standing Order which provided as follows: “Whenever it shall have been ruled or decided (whether before or after the approval of this Standing Order) that the House may not proceed on a matter which has been initiated in the House C affecting the alleged misconduct of a Member, because thereby the said member may be prejudiced in a criminal trial then pending on charges founded on such misconduct, the House may suspend such member from the service of the House until the verdict of the jury has been returned, or until it is further ordered.” D This Standing Order was approved by the Governor. In that context, the Privy Council observed that 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, so as to declare the proceedings against the E member invalid. In other words, the Privy Council was considering a written Standing Order and its efficacy.

65Copy pinpoint65. 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 F 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. G

66Copy pinpoint66. In the celebrated treatise of Sir Thomas Erskine May⁷⁸ dealing with the Parliamentary privileges, it is noted as follows: 77 supra at Footnote No.⁶⁶ 78 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.) H

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A “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 shall do so, the suspension shall be for the remainder of the Session.” (emphasis supplied) B He then noted that the first or subsequent occasion would mean the first or the subsequent occasion in the same session.

67Copy pinpoint67. Further, the position as obtained in United Kingdom at the relevant time to suspend its members was governed by the House of Commons Standing Order Relative to Public Business 1948. The relevant C Standing Order is No. 22 (1 to 4) as reproduced hereunder: “22. Order in debate.— (1) Whenever a Member shall have been named by Mr. Speaker or by the chairman, immediately after the commission of the offence of disregarding the authority of the chair, or of persistently and willfully obstructing the business of the House by abusing the rules of the House, or otherwise, then, if the offence has been committed by such Member in the House, Mr. Speaker shall forthwith put the question, on a motion being made, no amendment, adjournment, or debate being allowed, “That such Member be suspended from the service of the House”; and if the offence has been committed in a committee of the whole House, the chairman shall forthwith suspend the proceedings of the committee and report the circumstances to the House; and Mr. Speaker shall on a motion being made forthwith put the same question, no amendment, adjournment, or debate being allowed, as if the offence had been committed in the House itself. F (2) If any member be suspended under this order, his suspension on the first occasion shall continue until the fifth day, and on the second occasion until the twentieth day, on which the House shall sit after the day on which he was suspended, but on any subsequent occasion until the House shall resolve that the suspension of such G Member do terminate. (3) Not more than one Member shall be named at the same time, unless two or more members, present together, have jointly disregarded the authority of the chair.

ASHISH SHELAR & ORS. v. THE MAHARASHTRA LEGISLATIVE 819 ASSEMBLY & ANR. [A. M. KHANWILKAR, J.]

(4) If a Member, or two or more Members acting jointly, who have been suspended under this order from the service of the House, shall refuse to obey the direction of Mr. Speaker, when severally summoned under Mr. Speaker’s orders by the Serjeant at Arms to obey such direction, Mr. Speaker shall call the attention of the House to the fact that recourse to force is necessary in order to compel obedience to his direction, 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 sub-clause (2) and (4) of the above-cited C 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 D until the House shall resolve that the suspension of such member do terminate.

68Copy pinpoint68. The Orissa High Court in Sushanta Kumar Chand79 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. E 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 Halsbury’s Laws of England. The Sir Thomas Erskine May’s Parliamentary Practice relied upon in that decision, expounds thus: F

“Persons committed by the Commons, if not sooner discharged by the House, are immediately released from their confinement on a prorogation, whether they have paid the fees or not. If they were held longer in custody, they would be discharged by the Courts upon a writ of habeas corpus.” G And Halsbury’s Law of England relied upon in the same decision observes thus:

79 supra at Footnote No.10 H

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A “The Lords claim to have power to commit an offender for a specified period even beyond the period of a session. This course was also formerly pursued by the Commons but was later abandoned; and it would now seem that they no longer have power to keep offenders in prison beyond the period of session……………” B (emphasis supplied) The rationale for limiting all remedies for breach of privilege, as a rule, to a Session in which the House takes action for such breach is the effect of prorogation. According to Erskine May’s Treatise80, it is stated C as under: “The effect of a prorogation is at once to suspend all business until Parliament shall be summoned again. Not only are the sittings of Parliament at an end, but all proceedings pending at the time are quashed, except impeachments by the Commons, D and appeals before the House of Lords. Every bill must therefore be renewed after a prorogation, as if it had never been introduced.” (emphasis supplied)

69Copy pinpoint69. A priori, if the Legislature intended to depart from mechanism predicated in Rule 53, it ought to have expressly provided for that dispensation. If it had done that by a law or in the form of Rules framed under Article 208 of the Constitution, the legality and constitutionality thereof could have been tested. Suffice it to note, in absence thereof, it would inevitably be exercise of power without an express grant in that regard. In such a case, the exercise of power can only be implied or inherent and limited to the logic of general necessity by way of self- protective or self-defensive action reasonably necessary for proper exercise of the functions of the House during the ongoing Session. Anything in excess then for a day or the remainder of the ongoing Session, would not be necessary much less rational exercise of inherent 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.

80 H 1950 Edition at page 32 under the heading “Effect of a Prorogation”

ASHISH SHELAR & ORS. v. THE MAHARASHTRA LEGISLATIVE 821 ASSEMBLY & ANR. [A. M. KHANWILKAR, J.]

70Copy pinpoint70. Be it noted, had it been a case of expulsion of the member by A 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. B 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 C reason, the statutory mandate postulated vide Parliamentary law81 (which must be regarded as higher law and acts as a limitation upon the Legislature as well, as expounded in Sub-Committee on Judicial Accountability82), the constituency cannot be denied representation in the House beyond a limited period due to fortuitous situation. Moreover, D the expelled member would be free to contest the mid-term election and 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 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.

71Copy pinpoint71. Learned counsel for the respondents had invited our attention to the judgments of the Gujarat High Court wherein it had been held that the rules framed under Article 208 of the Constitution are neither statutory nor binding on the Legislative Assembly. Those decisions have not taken note of the efficacy of the observations made by the Constitution Bench of this Court in M.S.M. Sharma83 as back as in 1959 — that the rules framed under Article 208 of the Constitution would have the effect of procedure established by law for the purpose of Article 21 of the

81 Section 151A of the 1951 Act 82 supra at Footnote No.33 (para 61) 83 supra at Footnote No.11 H

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A Constitution and which dictum has been consistently followed in subsequent decisions including by the Constitution Bench which dealt with the case of Raja Ram Pal84. Accordingly, the decisions pressed into service by the respondents cannot take the matter any further. The respondents have relied upon other decisions including of this Court which, however, has had no occasion to deal with the legality and efficacy of direction or order issued by the House such as vide impugned resolution of suspending duly elected members for a period of one year instead of maximum period of remainder of the same Session. Indeed, the decision of Madras High Court in V.C. Chandhira Kumar, Member of Legislative Assembly85 held the resolution of the 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.

72Copy pinpoint72. 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.

73Copy pinpoint73. 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 remainder period of the concerned Session and must be regarded as non est in the eyes of law beyond that period. For that reason, it is unnecessary for us to dilate on other aspects of the matter. Thus, we do not wish to examine the same. G Epilogue:

74Copy pinpoint74. It is unnecessary to underscore that Parliament as well as the State Legislative Assembly are regarded as sacred places, just as the 84 supra at Footnote No.14 85 H supra at Footnote No.23

ASHISH SHELAR & ORS. v. THE MAHARASHTRA LEGISLATIVE 823 ASSEMBLY & ANR. [A. M. KHANWILKAR, J.]

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 place where policies and laws are propounded for governing the citizenry. It is here that 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 is reflection of the contemporary societal fabric. The behavioural 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 a seldom scene or a rarity during the debates. It has become common to hear 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. E This is the popular sentiment gaining ground amongst the common man. It is disheartening for the observers. They earnestly feel that it is high time that corrective steps are taken by all concerned and the elected representatives would do enough to restore the glory and the standard of intellectual debates of the highest order, as have been chronicled 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 self- dependant/reliant, quality of debates in the House ought to be of the H

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A 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-sesquicentennial or may we say platinum or diamond jubilee year on completion of 75 years post-independence. 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 statesmanship and not brinkmanship. In the House, their goal is and must be one — so as to ensure the welfare and happiness of we the people of this nation. In any case, there can be no place for disorderly conduct in the House much less “grossly disorderly”. Such conduct must be dealt with sternly for ensuring orderly functioning of the House. But, that action must be constitutional, legal, rational and as per the procedure established by law. This case has thrown up an occasion for all concerned to ponder over the need to evolve and adhere to good practices befitting the august body; and appropriately denounce and discourage proponents of undemocratic activities in the House, by democratically elected representatives. We say no more. D Conclusion:

75Copy pinpoint75. In conclusion, we have no hesitation in allowing these writ petitions and to declare that the impugned resolution directing suspension of the petitioners beyond the period of the remainder of the concerned E Monsoon Session held in July 2021 is non est in the eyes of law, nullity, unconstitutional, substantively illegal and irrational. The impugned resolution is, thus, declared to be ineffective in law, insofar as the period beyond the remainder of the stated Session in which the resolution came to be passed.

F Order:

76Copy pinpoint76. 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 writ petitions are allowed in the G above terms. No order as to costs. Postscript:

77Copy pinpoint77. While parting, we need to express a word of appreciation for the able assistance given by the learned counsel appearing for the concerned parties enabling us to deal with the complex issues on hand. H

ASHISH SHELAR & ORS. v. THE MAHARASHTRA LEGISLATIVE 825 ASSEMBLY & ANR. [A. M. KHANWILKAR, J.]

That they did despite the handicaps and uncertainty of online interaction A in virtual Court hearing. Pending application(s), if any, stands disposed of.

Nidhi Jain and Amarendra Kumar Writ petitions allowed. (Assisted by : Bodhe Ramteke, LCRA) B