Thread by @LawBeatInd

#SupremeCourt to hear plea filed by Bhartiya Janta Party MLA's challenging the resolution passed by the Maharashtra Legislative Assembly suspending the BJP MLA's for a period of one year over alleged misbehavior with the presiding officer.

Sr ADV C Aryama Sundaram submitted that "How far a judicial review can be applied for the quantum of the punishment."

Justice AM Khanwilkar- there is no question of judicial review, there is a limit given.
Anything beyond that would be unconstitutional.

J Khanwilkar- If the legislature was to provide beyond this period, would it not hit the Act made by parliament or the constitution.
#BJP
#maharashtraassembly

J Khanwilkar- I would invite your attention to para 29 of the Sharma's Judgment, because one this statement is given effect to then the argument of it being statutory doesn't matter.
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#BJP

J Khanwilkar- we don't have to go into the debate of whether it is statutory or not.

Sundaram- The rules are the procedure, the speaker cannot go beyond 53 that is obvious.

Sr Adv C Aryama Sundaram is appearing for the State of Maharashtra.
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J Khanwilkar- Substantive matter is not procedure, substantive matter is how much punishment can be given.

Sundaram- Rules are not concerned with the powers of the legislature, rules are concerned about the previlage committee.
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J Khanwilkar- There is no absolute power, it is bound by the constitution and the law made by parliament.
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Sundaram- Rules are not made by parliament.
194 will not apply unless I can show your Lordships. The substance would have been if the speaker would have acted but here the legislative assembly acted.
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Sundaram- The point that I would like to mention is the power....Milords I was shocked that there have been several suspensions from the Maharashtra Legislative Assembly.
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J Khanwilkar- because that has not been tested, ultimately it is the Supreme Court which is Supreme to interpret the Constitution.
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Sundaram- The power of suspension has to follow if it is given

J Khanwilkar- The argument that you are making was considered in Bolton's case in 1986 and was rejected.

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J Khanwilkar- The point when you say it has to be rational, it has to be in proportion. Anything beyond would be irrational. This specific issue has never arisen before.

Sundaram- That is why Mr Dave was suggesting to transfer this to Constitution bench.
#maharashtraassembly

J Khanwilkar- It's not like that every case where constitution is being discussed goes to Constitutional bench.
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J Khanwilkar- The citizen cannot put forward the argument that they are unrepresented because of the act of their member. But they can certainly say that when his duly elected member is not disqualified but not allowed to sit beyond a period of 6 months.
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Sundaram- If the conduct lowers the dignity of the house then it's not that he may be removed for a session, he may be suspended.
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Justice Dinesh Maharashtra- Finally this doesn't bar a member to be re elected, but your action to bar for a year....
J Khanwilkar- Your decision of 1 year becomes irrational, the statutory provision..151 when seat become vacant election must be conducted.
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Sundaram- not in all cases.

J Khanwilkar- That is the rule...

J CT Ravikumar- If one is suspended then election is not conducted, but when one is expelled then the election commission comes into play and people are represented.
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J Ravikumar- But if someone is suspended for 1 year or two years what would be the fate of our democracy.

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J Maheshwari- Period between two session cannot be more than 6 months then what is the rational here.

J Khanwilkar- The new session begins is a new business.

Sundaram- The suspension is not taken considering session.

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J Khanwilkar- This is all interconnected, it is about democratic value, it's not about the rights of one individual. If we uphold this, there can be other situation we can't visualise. Legislature doesn't not have untravelled power.
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Sundaram- Referring to Judgments.

J Khanwilkar- all this is in connection with suspension.

Sundaram- Is it only a remedial power and if it is limited remedy, does that become irrational? This is what I referring.
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J Khanwilkar- The essential is to control the dignity of the assembly for the day or for the session, once the session is over it cannot be indefinite.

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Court to continue hearing the matter after lunch.

Sundaram continues referring to the judgment, argues- It is discretionary and the act itself doesn't make the seat vacant.

J Khanwilkar- It is enabling, it is discretionary.
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Sundaram- The act doesn't make the seat vacant it's for the house to decide.
Referred to the judgment in the case of Raja Rampal Sundaram.

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Sundara-lm- We'll go back to proportionality, the power of the legislature to suspend a member is available and that power itself not be open to judicial review.
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Sundaram- If I have the power to punish, the constitution and the legislature defines what the punishment would be it is the power of the assembly to decide.
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Sundaram- In Raja Rampal case, you cannot say that the constituency is affected and that is why you cannot do this. He is still the representative of the constituency but the bar is to participate in house.
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J Khanwilkar- Suppose in the last session the parliament or assembly says expelled for 2 years?

Sundaram- No Milords it cannot be done.

J Khanwilkar- If not in this case than in same way how can a suspension go beyond a session.

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#BJP

Sundaram- Each house, life of the house is different and session of the house is different. Suspension cannot be beyond the life of the house.

J Khanwilkar- Then on the basis of rationality why it cannot be a period of session.
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J Maheshwari- Suspension is here working more than expulsion.

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J Khanwilkar- The constituency can not be left unrepresented for such a long time, that is the point that we want to deal with, we have no direct judgment except Balton.

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Sundaram- Judicial review arises in various activities, judicial review of judicial order, of administration action, legislation I'm each of which the scope of judicial review is different.
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Sundaram- I'm bringing up which is different from all these the Lordships are taking a statute when we are testing the judicial review in here is a unique situation, its a judicial review of whether the members of legislative has performed their duty or not.
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J Khanwilkar- That is for the court to decide whether something is just or unjust, legislative cannot decide that.

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Sundaram- There are several areas where the Judicial review can take place but there is one are a because of the Doctrine of Separation of powers.

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Sundaram- There is another Judgment from the divisional bench of the Madras HC and I'll conclude it.
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J Khanwilkar- this rejoinder we can take up tomorrow, you can also reflect up on what he argued, Mr Jethmalani.

The bench will continue hearing the matter tomorrow.