Thread by @lawbarandbench

The #SupremeCourt bench led by Justice Khanwilkar to hear pleas by #BJP MLAs led by Ashish Shelar challenging Maharashtra Legislative Assembly’s resolution of suspending them for a period of 1 year.

Sr Adv Aryama Sundaram: How far would the scope of judicial review apply for punishment?

SC: It will be a like a case of interpretative process. It's not about judicial review.

Sundaram: What your lordship feel is in 190(4) limits have to be applied.

Sundaram: The power of legislature to punish for privileges etc does not have any limitations either in scope of the power or period for which it can be exercised.
How far does this power go?

SC: If legislature makes rules or act, would there not be on the parliamentary act?

SC: I would like your attention on Para 59 of Sharma's judgement. It has been quoted in many cases, in Rampal also.

Sundaram: I'll get it.

SC: Once this statement of law is to be taken forward then if it is statutory or not does not matter. We won't go into those defects.

SC: It starts with "Seeing that it is a petition under Article 32.."

Sundaram: *Reads the relevant paragraph*

SC: What flows from this statement is it can be established as law under 21 and then it is effective per se.
These rules are benchmark, what are the rights of stakeholders. We don't have to go into statutory or non statutory.
Gujrat judgement misses this.

Sundaram: My submission is this. Rules are the procedure no doubt. If the speaker is to act he cannot depart from the rules. But the legislature cannot..

SC: We are saying the same thing. What your saying is its not statutory.

Sundaram:My Lord is correct

Sundaram: So far the house is concerned it is guideline, they can always fall away from it.

SC: Deviation can be about procedure, not substantive matter.

Sundaram: I'm going one step further. The power of the legislature under A193 is not circumscribed by rules at all.

Sundaram: Rules are not concerned about legislature. They are about the privilege committee etc. I'm distinguishing between speaker, privilege committee and the house itself.

SC: SC has repeatedly said it is not absolute. It is bound by the Constitution and the law made by

SC: the parliament.

Sundaram: Rules are not made by the parliament.

SC: Assist us on this aspect.

Sundaram: I'll deal with A194 and scope whether it has any bearing on our case. I will also deal with Rep of People Act.

Sundaram: When the leg assembly acts, it goes back to the constitution. There is no limit there.

SC: Once you go to that length, how do you apply the scale that actions are rational, justifiable and legal.
It is not untrammeled.

Sundaram: Let me take my lords to Raja Rampal.
May I take first 2007 3 SCC 284.
I'll deal with A193 and then Section 154A of Representation of People Act.

*Reads page 187 of the report*

Khanwilkar J: Brother Ravikumar do you have it?

Ravikumar J: Let him continue, I'll make a note of it.

Sundaram: My argument if you can expel, the suspension is less.

SC: It's the same thing in Barron's judgementIf it has been done in the past, it does not validate it.
We'll just reiterate, it is the Supreme Court that is supreme in interpreting the constitution, not legislature

Sundaram: Justice Maheshwari's question about the constituency. The constituents elected this man and then you expel him. Suspension is less than that.

Khanwilkar J: The same argument was rejected in Balton's case in 1886.

Sundaram: *reads Balton*
In that case it was an indefinite suspension not a particular period of time. The question is right of the constituents that fell from your lordship.

SC: There has to be a purpose of the suspension. That is to complete business in orderly fashion, not

SC: beyond that. That's what is in Raja Rampal.
Anything other than this is perhaps irrational. That's what we want you to assist us.

Maheshwari J: Mr Sundaram sir, we never said proportionality.

Khanwilkar: This specific issue has never arisen before so we have to collate

Khanwilkar J: of judgements.

Sundaram: That's why we suggested it be taken up by constitutional bench.

Khanwilkar K: The judgement is already in place. It's a misnomer that every issue about constitution has to go to Constitution bench.

Sundaram: Then the court can't function

Khanwilkar J: It will be lawyer's paradise.

Sundaram: No your lordship. We'll miss our Mondays and Fridays.

Sundaram: *Reads from Raja Rampal judgement* The argument taken was suspending would be the same thing.

SC: Citizen cannot argue for the expulsion of their representative but when he's expelled beyond 6 months,

Sundaram: I'll deal with it. I'm just reading relevant Paras.

SC: The decision has to be rational. There has to be an overpowering reason that he should not be allowed to even attend the next session.
The core issue is principle of rational decision.

Sundaram: I have to deal with Section 151. I'll deal with it separately. I just wanted to read this so we don't have to keep coming back to it. This is not about what your lordship is saying. That I will deal with separately.

Any para I'm reading is to say this is what my lords

Sundaram: have held, how do we apply?
If conduct lowers the dignity of the session, not just suspension, he can be expelled.
We hold that expulsion does not violate any rights of the constituents.

SC: The query we are considering, suspending for a year, re-election is ruled out

SC: You're saying suspension is less than expulsion but it's coming out to be the opposite.

Sundaram: We will deal with Section 151A.

SC: It won't be just 151A but also in the context of rationality generally. There has to be some rational. Your decision of 1 year means

SC: constituents won't have a representative for 1 year. When seat becomes vacant for 6 months, re-election has to happen.
We are talking about spirit of parliamentary law. That is how we test rationality.

Sundaram: Absolutely. I have to deal with it and I will.

Ravikumar J: Election Commission also has a role. If vacancy arose, they have to conduct election. Your taking away their right too. In case of suspension there will be no election while in expulsion it will be.
Another danger to the democracy. If there is slender margin for

Ravikumar J: majority and people are suspended. What happens then?

Sundaram: Absolutely. I will address that.

Sundaram: It's been equated to the rights of your lordships as a court of record.
*Continues reading*
The only limitation court recognises is the contempt power which cannot divest court of its jurisdiction.

Sundaram: These are not my answers. Just see what I'm trying to say please. The idea is it should work without obstruction when the house is prorogued.

SC: Imagine he's expelled and stands disqualified for re-election. That cannot be. Why? The assembly can only discuss the

SC: privilege of its own business. In your case you have passed suspension of 1 year.

Sundaram: In my case my lord

SC: You don't let us complete.
We are talking about constitutionality, legality and rationality. Whether it makes sense to common man.

SC: It was for obstructing function of that day, maximum that session. Why beyond? That you have to justify rationally.

Sundaram: Now I'll deal with limited remedial power

SC: Power you have to suspend but for what purpose, what period?

Sundaram: Your lordship has to see if the period is circumscribed. If you say no, then your lordships impose a period.

SC: No. It cannot be period mention in 194 or S151..

Sundaram: Because they circumscribe the period.

SC: because it deprives constituency of a representative

SC: The limit has been specified, rationality will have to be deduced from there.

Maheshwari J: A174 provides for sessions. What is the question of meeting in sessions only?

Khanwilkar J: It will be about the session only. New session begins means new business.

Sundaram: Once he's expelled he's completely gone.

Maheshwari J: The house meets in sessions. A particular session he may be suspended. But beyond that the rationality question comes.

Khanwilkar J: You cannot segregate. They come together

Sundaram: That's in para 151.

Khanwilkar J: You know our doubts so you can answer.

Sundaram: Certainly, after all you are dealing with legislative interpretation.

Khanwilkar J: The question is not dealing with one elected members but a democratic right.Legislative power is not untrammeled,the court has held

Sundaram: I have made a note of it, my lords. The genus is of larger constitutional values.
*Reads paragraph 119*

SC: All this is concerning expulsion except that paragraph in Balton.

Sundaram: I'm reading here what your lordship has held as power of the legislature.
A person is obstructing the functionality of the House, the rationality would be to remove him for the day or the session

Sundaram: but not completely. Is it only a remedial power and if it's not a remedy, does it become irrational? Does suspending beyond session makes it irrational?

Sundaram: Now the paragraph in Balton that my lord asked me to read in the beginning. Then the court went on to examine what is necessary and found indefinite suspension would never be considered unnecessary.

SC: Have you read Balton's case?

Sundaram: No.

SC: Then read it.

SC: Court has said what is essential. Beyond session there is no question. It is to enable the House to complete the business of this session. Beyond that where is the rationality.
Ultimately, the decision is it cannot be untrammeled. With constitutional and legal parameters,

SC: there are limits.

Sundaram: If I am not able to convince you there is no constitutional bar on 1year suspension then I have failed. But I am able to convince, that statutory power is enough, then there is no need for further investigation.

Sundaram: Just to show my lords it's not a limited remedial power.
*Reads Para 286*

SC: Test of rationality would be for the day or the session. Beyond the session, business is different.

Sundaram: Rationality doesn't arise in its own space. If it was remedial, is this rational? If it's not remedial then rationality of saying suspension for one day or session

Sundaram: does not matter.

SC: You are putting emphasis on extracted portions. The bench has understood the judgment.

Sundaram: I want to read

SC: Then read slowly.

SC: Power can be outside the walls of the house that can lower the dignity.

Sundaram: I'm coming to that.
*Continues reading*

SC: It is not necessarily argument for expulsion.

Sundaram: Para 451.

SC: it is the concuring judgement of Justice Sabarwal.

Sundaram: It has to be read on context of para 431.
*Reads para 451*

Sundaram: I'm saying rationality is in built in it.

SC: Rationality will have to be seen together. All decisions will say all that is not permitted in law not only become illegal but irrational also.

Sundaram:The power vested in the legislature, 105 or 119, if it is not circumscribed by the Constitutional or parliamentary procedure, it cannot be said to be irrational.

SC: Constitution must strike it down.
It will also be rights of the citizens.

Sundaram: It's not circumscribed because it's innate in the powers.

SC: We are limited to A194 and S151A and legislative spirit.
Why it's not accepted that we are asking.

Sundaram: *reads Justice Thakkar's concurring judgement*

SC: It's all illustrations. The view is powers are not untrammeled. There is no difficulty there.

Sundaram: Para 5..

SC: What's the point of reading that Mr Sundaram?

Sundaram: Now I'll show it's not barred by constitution. Please come to Article 190.
I have three submissions.
Powers in 190(4) will not overpower powers available in 193. The only way it would circumscribe those powers if in some way it was contrary to the exercise of those

Sundaram: powers. 190(4) is not the test.
It's not calender 60 days, it's of sitting. In our case, it has been 7 days so far.
My first submission is Article 190(4) does not giving a calender period of 60 days but 60 days absence from the session.

Sundaram: The danger of 190(4) doesn't arise at all.
Point no. 2, it has to be without permission of the house. Directing a person to not to attend the House necessarily implies that it's not on his own violation. 190(4) is not absolute. It's not a rule of disqualification.

Sundaram: 190(4) is only when it's done without the permission of the House.

SC: The facts of the present case it's not so.

Sundaram: It is 'you shall not attend'
The meaning of 190(4) is that it has to be a unilateral decision of the member without the house acceeding to it.

Sundaram: The word permission in 190(4) has to take in its compass a direction of suspension passed under article 190(3). If a person has been suspended and after 60 days he is told that seat has become vacant, he comes to you to say how is it vacant

SC: It's not necessary to

SC: state it in the resolution.

Sundaram: The House cannot say I asked you to not attend for 60 days, it's been a year so vacant. It's not without permission.

Third, unlike A191, 190(2), 190(3) and (4), it is discretionary and not mandatory. It is for the House to declare a

Sundaram: seat vacant. They might not declare it vacate. You vacate only if the House decides.

SC: Counter suggestion to you. Until house declares vacant, no consequence. Is it not obligation of the House to declare it vacant?

Sundaram:No. A190(4) uses 'may' and not 'shall'.

SC: If a seat actually become vacant then the House doesn't have to declare it vacant?

Sundaram: Then it has to. Please read A190(1), (2), (3) and (4) with me.

Sundaram: For 190(1) there is no discretion. 190(2), ipso facto becomes vacant. 190(3), 'shall' legislature has no role. 1,2,3 is mandatory.

SC: That is not what we suggested. In a given case, a member does attend for 60 days of meeting days. He's not suspended. Is the

SC: legislature not obligated to declare it vacant?

Sundaram: No my lord.

SC: Legislature has to approve or disapprove.

Sundaram: That is the legislature's discretion free of judicial review.

SC: we are asking when he hasn't shown up then what?

Sundaram: It would be proper for the legislature to do so.
The consequence of his actions is not the consequence of the House's action.

SC: We'll continue at 2 pm.

Sundaram: We miss your lordship's standing up.

SC: We have to do it voluntarily now.

The bench reconvenes.

SC: In one year how many days does the House sit?

Sundaram: I'll let you know. I have asked, they said it depends from year to year.

SC: Is there anything in the constitution how many days they should sit?

Sr Adv Mahesh Jethmalani: No. The total days should be about 90-100 days, closer to 90.

Sundaram: I was saying under 190(1), (2), (3), the act ipso facto results in vacancy. Under 190(4), vacancy only arises when the House declares so.
There's a committee in the House to address absenteeism.
Justice Khanwilkar asked if one is absent wouldn't the assembly declare

Sundaram: the seat vacant. I checked, there is a committee. Committee on Members Absence from the Sittings of the House.
The rules say 'absenteeism from the Sittings of the house.' Sitting, not calender years.
This is where they apply for permission for leave. They examine the

Sundaram: absence of a member for 60 sitting and decide whether to condone or vacate the seat. This also shows that the power is discretionary.

SC: If the committee does not decide, the House still has power?

Sundaram: Yes. They have the right to decide whether to condone the

Sundaram: absence or not. The action itself doesn't result in vacancy but it is discretionary on the House.

SC: If someone remains absent for 60 days without permission, it is the duty of the House to take it up immediately. That is an enabling provision. But the committee is

SC: obliged to report and examine it.

Sundaram: So it is the House who decide whether seat is vacant or not.

SC: House is duty bound to consider every case of absence. To condone it or not is on the House.

Sundaram: While it lies in the discretion of the House, it is the duty

Sundaram: of the house to consider condonation of absence or not

SC: Immediately.

Sundaram: Yes.

Sundaram: *Reads Para 698 of the Raja Rampal judgement*

Sundaram: We'll go back to proportionality, that's what my lords are concerned with.
Can I take my lords to page 284 of the report? Para 140
*Reads*

Sundaram: If I have the power to punish, the constitution not any parliamentary law defines what the punishment can be. It is the legislature who has to decide, including expulsion.
Deprivation of a constituency of representation is not a ground.
If A190 is relied on it's 60 days

Sundaram: When there is expulsion of 6 months, there will be re-election but it's the matter of depriving representation of the constituency by suspension of 1 year- this is not a ground acc to Raja Rampal.
Justice Thakkar said if you elected a member who behaves in such a way

Sundaram: then be it.

The person concerned is still representing the constituency. What he is barred from doing is participating in the House. He is still the representative. Raja Rampal has already dealt with the issue.

SC: But Raja Rampal put it on a different platter. It

SC: dealt with expulsion- they said that constituency can't say our right is denied. Can't hold the same reason for suspension.

Sundaram: Then I didn't make myself clear. I'm borrowing this from Justice Thakkar's words. Please take page 443.

Sundaram: He continues being a representative but not allowed in the House.
We're dealing with non representation issue now.
Non representation is a consequence and nothing more. If it is a result of the act of a member then it is the voters who will have to take the blame.

SC: This is a moralistic approach, we are on legalistic.
So far only 151A has been brought to our notice.

Sundaram: I'll come to that. Raja Rampal also dealt with this. Page 268.
This is not a moralistic view, it is a decision on a contention.

Sundaram: The argument was he can only be suspended upto 6 months coz after that the seat had to be filled again. Beyond 6 months, the constituency has a right. There's an embargo.

I submit there is no embargo.
The embargo is one year as I would be reading to my lord.

SC: You'll read what?

Sundaram: S151A. By-election to fill a vacancy will be in 6m after seat is declared vacant. The seat can be left vacant for one year.

SC:Suppose the last session of the House, the speaker says suspended for two years.

Sundaram: Can't.

SC: If it cannot

SC: be done there then why here.

Sundaram: Each of it is an entity in itself. The 6th Lok Sabha, the 7th Lok Sabha and such.

SC: If action for discipline is required then it will be for that day or at the most session.

Sundaram: But Raja Rampal expelled.

SC: Oh ho

Sundaram: I get what your lordship is saying.

Maheshwari J: Suspension has not been considered in Raja Rampal and especially suspension for one year. there after expulsion they said let him be re-elected. That option is not available in suspension.
The principle of 151A is no

Maheshwari J: seat should remain vacant. It is not being upheld by one year suspension.

Khanwilkar J: Read Raja Rampal page 373 U.
It has only referred to Constitutional and legal. Rationality is a part of that.

Sundaram: Can I attempt? I'm also in new territory.

SC: Only Balton covers this, no other judgement.

Sundaram: Judicial review of executive action and quasi are different. Each sphere of judicial review differs. I'm bringing a sphere which is different from all these. It goes to the core of separation of powers

Sundaram: Here you are seeing if the conduct of the House is proper. There is a difference between decision taken by speaker and a committee.
The least your lordship will interfere will be in conduct of the House

SC: Which law are you saying limits this?

Sundaram: Unless it's a law made by parliament, it will not be interfered with.

SC: See f- proceedings tainted with illegality and unconstitutionality.

Sundaram: Yes yes. There is no ouster clause.

SC: It's in 212(1).

Sundaram: It's only regarding procedure.

SC: Yes. HC/SC can intervene.

Sundaram: That I don't agree. Only under S.

SC: But that's what the judgement is saying.

Sundaram: See paragraph 429, 430. The scope of judicial review will vary based on what is being reviewed.

Sundaram: Judicial review of what is happening in the House will only be in case of gross illegality. Otherwise it will attack the core of separation of power.

SC: You are asking us to go beyond the constitutional bench and saying it is limit to Constitution and not

SC: constitutional principles.

Sundaram: It has been expressly held that 290 is an exception to 19(1)(a).

SC: Fundamental rights are restricted. 19 is restricted by 19 itself.

Sundaram: In various actions subjects to judicial review but there is one area where because of

Sundaram: separation of powers where judiciary doesn't tread that is working of the House.

SC: Come to another constitution bench judgement- the Amrinder Singh case.
In para 53 and 54, Amrinder Singh considers Raja Rampal.
Then come to separation of powers 87 onwards.

SC: Unconstitutionality cannot be pinned on only specific contents of the constitution.

Sundaram: If parliament in its law making power has made a legislation, you are looking at the legislation. But when they're managing things in their own house, judicial review can't be

SC: You are watering down all the constitution bench judgement we read.

Sundaram: No, I'm not. I'm saying..

SC: First listen to the question. What do you think is limiting us?

Sundaram: S. And Para 54 of Amrinder Singh case.

Sundaram: There is one last judgement I would like to place before my lords. This is from Madras HC when Justice Chandru was CJ.

SC: After we've had constitution bench judgement...

Sundram: It's so beautifully written.

SC: The ordinary course should be when constitution bench has said something we go from there not the older judgements.

Sundaram: This is about how Constituent Assembly took privileges of the House. It's not about judicial review.
Please see para 87.

Sundaram: One division bench from Madras judgement I'd like to show you.
*Reads*
That's it. I have done what I can. If there's anything your lordship want me to look into, I can.

Jethmalani: Just a brief rejoinder.

SC: we can continue that tomorrow since only 15 mins are left.

Jethmalani: There are some judgements I'd like to show you.
I'll take 20 mins.

SC: It won't happen in 15 mins. You take some time to reflect on what he has argued. Tomorrow this will be the first item.