Thread by @barandbench

#SupremeCourt is hearing the plea by Bharatiya Janata Party (BJP) law makers, led by Ashish Shelar, challenging its resolution suspending 12 BJP Members of Legislative Assembly (MLAs) for a year @BJP4India

Adv Rahul Chitnis: I am led by Sr Adv Aryama Sundaram. an application has been made by them before the chairman of the assembly. yesterday hearing was given to them. we have also filed a counter

Matter passed over as petitioners counsel Senior lawyers Mukul Rohatgi and Harish Salve are appearing before other courts

Sr Adv Sundaram for Maharashtra:we have filed translations of the hearing which was given. assembly is not sitting now & this can be heard after three weeks. End of February is the next session. yersterday written representations was filed before chairman and he will pass orders

Sr Adv Mahesh Jethmalani appearing for petitioner: What mr sundaram is saying is factually incorrect. we were asked to appear before the deputy speaker and the resolution was passed by the house so there is no meaning in dy speaker hearing us.

Jethmalani: we informed that resolution passed by house has to be revoked by the house. there is no role of deputy speaker. there is no power to suspend MLAs beyond the session of house. this is manifestly arbitrary

SC: If you dont want speaker to decide then amend your petition and we will take a call.

Jethmalani: here the house has taken a call which is against the principles of natural justice.

Sr Adv Sundaram: please defer it by a week, heavens will not fall by then

Jethmalani: It has already fallen !

SC: If the act of parliament can be challenged, resolution can also be challenged.

Sundaram: i am just saying let us see what assembly decides

SC: but speaker cannot decide it since decision is by the house

Jethmalani: without these 12 MLAs all decisions are being taken and number game is very important. the absence of MLAs is undermining the numerical strength of the house.

Jethmalani: resolution is passed by minister of parliamentary affairs. Mr Anil Parab moved the resolution. it was said the house resolved to suspend the MLAs for a period of one year and restrained from entering the premises of vishan sabha in mumbai and nagpur.

Jethmalani: this is not an act of speaker and the speaker only had put to vote and the resolution was passed by the house

SC: What is the sequitur of these facts . please formulate your points

Jethmalani: act of the house is an act without jurisdiction as it had no power to pass a resolution. the act of suspension has been passed without observing any procedure including the rules laid down in Maharashtra legislative assembly rules...

Jethmalani: no irregularity of procedure but the fact is that there was no procedure. there was gross violation of natural justice

Jethmalani: the conduct has to be grossly disorderly for withdrawal of the assembly.

Jethmalani: The power to order such suspension rests with the speaker and this here the jurisdiction is exercised by an authority who had no jurisdiction. The house only ratified the resolution of the parliamentary minister

SC: absolute power vests with the house

Jethmalani: it's a settled law as per Raja Rampal and Kihoto Hollan case
that courts will not interfere with mere irregularity of procedure but if there is complete go by it will interfere. Here order was without jurisdiction

SC: you are arguing that Rule 53 is a complete code in itself. you have to explain us the provision in that case

Jethmalani: as far as conduct of members is concerned the speaker is the authority to take a call

SC: So the question is this rule a law, the other side may argue that this is only a guideline

Jethmalani: A specific procedure needs to be followed in case of contempt. here its about disorderly behaviour. They did so because they wanted to hurry up the action in one day. If they wanted to go for contempt procedure would have been different

Jethmalani: twelve MPs were suspended in Rajya Sabha, they were done so for the reminder of the session. There is the constituency and constituent rights as well. That is why disorderly conduct is only for a session.

SC: Once we go into the unsubstantiated, we will have to go into the merits of the allegation and ask the other side

Jethmalani: Where there is CCTV camera, at least refer to that. Rajya Sabha, CCTV was mentioned in the resolution passed

Jethmalani: the mandatory CCTV was not even used in our case and the proceeding was so perfunctory and unfair.

SC: one year excessive is separate argument and th question is if the withdrawal can be ordered on the same day by the speaker

Jethmalani: then we go to speaker

SC: Dont go back and forth. we have already noted that point

Jethmalani: your lordship has to safeguard the sanctity of these proceedings. streams of justice has to be ensured and this cannot happen unfairly. otherwise every majority of members will rub against the minority. else why have rule book in parliament?

Jethmalani concludes his submissions

Sr Adv Mukul Rohatgi begins: any modicum of natural justice was violated. unless natural justice is excluded civil consequences follow if such principles are not followed. thus the act of the house is null and void

Rohatgi: speaker as a master of the house is entrusted to maintain order in the house. house and speaker is bound by the rule book. house does not have any punishment power.

SC: if we accept your submissions then house management by the speaker will become impossible

Sr Adv Neeraj kishan Kaul: today to say that this court does not have jurisdiction to deal with this challenge is not correct just by saying that the house is sovereign and immune to judicial interference

SC: When it is the question of impromptu maintaining order of the house then where is the question of prior notice ?

Kaul: then that would depend on facts of the case. speaker recognizes that there was a heated exchange that day, thats why video evidence is important

Matter to resume post lunch

Sr Adv Aryama Sundaram: can we argue next week

SC: We have begun the hearing and we will not stop it. You can send the hard copy of judgments to our residences.

Matter to resume at 2 pm

Sr Adv Siddharth Bhatnagar argues: if seats are allowed to be vacant then it has a major effect on the democracy. This is worse than expulsion. Govt can also manipulate the majority #MLASuspension #supremecourt

Sr Adv Aryama Sundaram: legislature is never subject to jurisdiction of the court when it comes to procedural irregularities. It is beyond the jurisdiction in Article 212.. If the Status of those rule is that it is not statutory, it is only procedural.

SC: It is not only about procedural but also jurisdictional. cant the court go into this?

Justice Khanwilkar: if this unprecedented decision is upheld, it will set a dangerous precedent according to the other side

Sundaram: What has been done is within the constitutional powers and substantive power. i too have followed the arguments

Sundaram: legislature is acting within its legislative competence.

SC: Article 241 obligates the framing of rules. assuming its not statutory rules, it does mean house will function without any guidelines. If it wants to depart it has to say that it was done consciously

Sundaram: there is no requirement for legislature to give reasons/ the moment the court looks into reasons, the court is deciding the matter in judicial review.

Sundaram: i know i am making an extreme argument but this is what i am arguing based on my reading of the constitution.

Sundaram cites a judgment: This court has held that house is author of the rules and it has no statutory force. Rules are not the master of the house but vice versa. house may depart from the rules.

Sundaram: in a parliamentary form of democracy, a majority in the parliament cannot be called as majoritarianism. they have all the power to pass such resolutions.

Sundaram now cites the constitution bench judgment in the Raja Rampal case

SC: 1 is procedural aspect and one is consequence of the procedure. now if a person remains absent from the house it will be forced absent and if they are not their for 60 days then seat is considered to be vacated. can the legislature inflict punishment transcending limit in 194

Justice Khanwilkar: it becomes unconstitutional if you suspend someone for more than 60 days. This will create a lot of problems. In today’s set up that it is better to interpret it that it does not cover it. here without motion you can suspend...but outer limit is 60 days

Justice Dinesh Maheshwari: saying you can do what you want means what? how long can seat remain vacant is 60 days.. at the most 6 months outer limit can be there. here we are talking about a constituency being represented in a parliamentary form of democracy?

Justice Maheshwari: is this not hitting the basic structure of the constitution when the 12 constituencies are unrepresented

Khanwilkar J: Now it is 12 tomorrow it will be 120. its a dangerous argument. absolute power does not mean unbridled. this is a serious issue

SC: This decision is worse than expulsion. none can represent these constituencies in parliament when they are not there.

Justice Maheshwari: we are dealing with a matter when the legislature has suspended the members for 1 year

Sundaram: usually your lordships don't interfere in the quantum of suspension

Justice Khanwilkar: we will say that the decision is unconstitutional.

Sundaram: you are on decision concerning period of suspension

SC: House has authority to suspend you but not beyond 59 days. House is also governed by constitution and fundamental rights

SC: This is not punishing the member but punishing the constituency as a whole. #MLAsuspension

Justice Khanwilkar: in the facts of the present matter, we will say enough is enough in two pages. not much has to be dealt with

SC: We will have this on Tuesday. we wont have to deal with any other aspect. we can say that the decision to suspension can only operate till 6 months and later than that it will be hit by constitutional bar.

Matter to resume next Tuesday

#supremecourt #MLAsuspension