Thread by @lawbarandbench

Sr Adv Mahesh Jethmalani presents a rejoinder in the case of suspension of Ashish Shelar and 11 other BJP MLAs from the Maharashtra Legislative Assembly.
#SupremeCourt

Sr Adv Mahesh Jethmalani: The power of the house to suspend is not under question. Mr Sundaram's argument is the period of suspension can be determined at the will and pleasure of the House. He seeks to buttress this proposition by Raja Rampal.

Jethmalani: The proposition of laws by the majority in para 431, only ground is ground of judicial review and nothing else and he gives no reason why the same should be ignored.
This was the sum of arguments of State of Maharashtra

Jethmalani: Let's take Mr Sundaram's sole ground- S. Suspension is both illegal and unconstitutional. Under A105(3) which deals with central legislature and A190(4) deals with state legislature. Those powers are not denied by any judgement. All houses in India will enjoy the same

Jethmalani: powers and privileges as enjoyed by the House of Commons in 1950.
We have to go to the roots to see whether HoC in 1950 enjoyed that privilege of imposing a period of suspension of 1 year.
The burden when such a privilege exists, please see para 47 from Sharma's case

Jethmalani: The main question to be decided is existence and extent of the privilege. The burden is on them to establish HoC enjoyed such privilege.
Throughout his argument, my ld friend made an attempt to tell us about the source of the power. Where is the source? The burden is

Jethmalani: on him but I will discharge that burden.
Your lordships referred to the case of Balton. A judgement of 1886. It's a Privy Council judgment. I'll read from pg 2.

SC: It has to be confined upto the session.

Jethmalani: My lordship is right. All books I've perused has the same provision for every House. It's a sound practice. The suspension period is graded.

SC: Your submission is there are two options either expel but if you're

SC: suspending, it has to be with the intention to discipline. Balton is confirmed by the Constitution bench.

Jethmalani: *reads Balton*

Jethmalani: On the prorogation, all bills lapse. So all disciplinary actions also lapse

SC: That aspect has been dealt with another constitution bench in 1991. It is the Judges Case.

Jethmalani: Ah, yes. In a recent Rajya Sabha case, 12 members suspended in the winter session

Jethmalani: were given an opportunity to apologise. Their lordships are only considering those powers which are necessary from discipline.
In this case, it was a first time offence.
To argue expulsion is greater and suspension is less, and the greater must include all parts of

Jethmalani: the less, is fallacious. Prolonged suspension is worse than expulsion as your lordships pointed out. The rights of the constituents is affected. Re-election has to happen in 6 months. In some countries it is less than 6 months.

SC: The theme of the judgement is anything beyond the sitting would be more.

Jethmalani: I'll leave it at that.

SC: That's the theme. Anything beyond the session is excessive. This is stated in Rule 53.

Jethmalani: On suspension we have scanned every law book possible, this is

Jethmalani: the only judgement, the Australian case from Privy Council, that deals with suspension and its duration.

SC: You have power. No one can question why you expelled.
We don't need to go there.

Jethmalani: 1950 edition, at page 92 of our compilation, this is a chapter

Jethmalani: on penal provisions. Just see the paragraph under 'Punishment inflicted on members'. I'm also citing committal that it only lasts till session.

Jethmalani: Suspension was a power used by the HoC, as your lordship said, for enforcing discipline. Then they give certain instances of suspension in the House.
Please move to pg 95

SC: First you give notice. Then you suspend for the day, then session and then expulsion

Jethmalani: This is what is stated in 'Procedure of Naming a Member'.

Why would a House abandon, for the sake of arbitrariness as the alternative, the procedure established by the Constitution as established in Sharma's case.

SC: Mr Jethmalani, do you have the Standing orders

SC: copy anywhere?

Jethmalani: It can be downloaded very easily.

SC: Get it. Email it to us immediately.

Jethmalani: I'll do both 1880 and 1950.

SC: Your submission would be the rules formed here would be analogous to this scheme.

Jethmalani: Why would it want to go against

Jethmalani: that they framed? Why go for arbitrariness?
The longer you extend the sentence for, the closer you go to perversity. First, it's arbitrary. Then the longer you impose it for, it becomes more and more perverse. My ld friend says you can go on for however long you want

Jethmalani: The same provision exists in England what was in 1950, which we have annexed. From the UK website it says standing orders are the rules by which the assembly conducts its business and that of the committees.
The present standing orders are 43 and 44.
We have to go by

Jethmalani: standing orders prevailing in 1950.
In Australia, the power of expulsion by a constitutional amendment, is done away with. These are all relics but you need them as outbursts happen in any house.

SC: In our scheme, they can get re-elected.

Jethmalani: That was the

Jethmalani: case in HoC too where John Wills was expelled thrice and he came back thrice.
Dr Ambedkar wanted to codify the privileges.

SC: That tells us how complicated it was. No one wants to give up privileges.

Jethmalani: In the 44th amendment they did not refer to HoC

SC: This you have to pursue elsewhere. We'll analyse what we have before us.

Jethmalani: Yes, my lord. Please allow me to read this short judgment from Orissa HC.
*Reads*
This is contempt action but for disorderly conduct.

Jethmalani: You can commit someone for one year but if one day is left for prorogation, then it's suspended.
The Hallsbury laws also state that you cannot hold anyone beyond the duration of the session.

Jethmalani: I don't need to go any further. But there is one limb of Mr Sundaram's arguments which deal with force of rules. Your lordships had pointed out in Sharma's case that it's procedure established by law.

SC: We don't have to go there because constitution bench has said even if it is in the rules you can go away from it but only with procedure and not substantive matter like punishment.
Your argument seems to be that it won't lapse for the want of jurisdiction.

Jethmalani: I'm thankful

SC: See 431 G of Raja Rampal. *Reads*

Jethmalani: There is no way for there to be jurisdictional error.

SC: The totality of parameters have to be borne in mind.

SC: Anyone else?

Sr Adv Neeraj Kumar Kaul: Yes, I'm in 5.3. About the Part III. I'm referring to AIR 1965 SC 745.
Even the power exercised under 208, says subject to the constitution. Merely because you executed plenary power, you can't say there will be no judicial review

Kaul: I had also pointed it out in Amrinder Singh.
What have they shown here to show that one year was required to safeguard dignity of the House? Nothing is there to show it.

SC: It's a modified version of Mr Jethmalani's argument that it cannot go beyond the session.

Kaul: I showed to your lordships even on proportionality, Amrinder Singh clearly says it can't be untrammeled.

SC: We don't need to go there.

Kaul: I'm only doing this as an officer of the court. Whichever way we look at it, one year suspension is it not destructive of

Kaul: representation and constitutional democracy.
Please have A208- Rules of business- it's subject to the constitution.

SC: He (Sundaram)says to this that House is independent in this. We don't have to interfere.

Kaul: He is entitled to make his argument. I'm saying it is

Kaul: not possible to go against the Fundamental rights.

SC: Then you're asking us to interpret the constitution, we'll have to go to 5 judge bench.

Kaul: I'm not suggesting that. I'm only relying on the two judgements to make good my point.
All I'm saying is this is

Kaul:disproportionate. I'm very grateful for your indulgence.

Sr Adv Mukul Rohatgi: I want to make two/three points.
Rules made under 208 have greater value than statutory rules. What's the point of making the rules when you don't follow it?

SC: You're hitting the dictum of

SC: constitution bench.

Rohatgi: I'm not saying your jurisdiction is trammeled by the rules. Spirit of the rule has to be implemented.
This threat that it will go to a constitutional bench, your lordships have held that the smaller bench has the right to pass interim order

Rohatgi: It's not that the court is powerless- goes to 3 to 5 to 7. This doesn't need to go to Constitution bench.
208 must be followed. You can't violate rules.

Rohatgi: The decision for one year suspension will be grossly irrational wrt S and U of Raja Rampal.

SC: U is exhausting, it covers all others. It's summation of A to T.

Rohatgi: Even if it's that I rely on gross irrationality and violation of natural justice straightaway

Rohatgi: You cannot police an MLA for one year

SC: We don't have to go into rationality. It's enough to say that it can't go beyond the session.

Rohatgi:Raja Rampal is a case of expulsion for taking bribe. That's a gross misdemeanor while this is a milder misdemeanor. That's

Rohatgi: difference between expulsion and suspension. You can tell like a headmaster to leave for creating a ruckus. Then he can decide. Why should it be a split decision of 60 days?

Rohatgi: Democracy is the basic structure. No doubt you set the rules, you're the master of the house. But you don't have to do it in split second.
This is illegal, unviable and arbitrary.
It can be immediately striked down by being manifestly arbitrary. hreya Singal comes for eg

Rohatgi: This relates to basic structure of the democracy, representative democracy.
It's violative of U.
If the speaker wants to do it it has to be to the end of the session.

Sr Adv Siddharth Bhatnagar: If your lordships allow.

SC: No new points. Only replies. It is not a case of creating vacancy automatically.

Bhatnagar: I'll answer that.

SC: 190 arguments have some other fallouts.

Bhatnagar: Even if it 190(4) it's worse than expulsion.

Bhatnagar: Vacancy of seats arises in 190 for state legislature and 101 for parliament.
*Reads 190*
190(3) has two parts one is disqualification for office of profit etc and laws made by parliament and then there is schedule 10.
These are the methods.

Bhatnagar: The moment a seat is vacated, it is immediately to be filled in under part 9 of 1951 act.

SC: We will not burden ourselves with 190(4) because it is not relevant here.

Bhatnagar: The suspension is worse than expulsion because you are keeping a seat vacant by not accepting it's vacant.
There is a de facto vacancy but not de jure vacancy.

SC: 190(4) yardstick need not be invoked. Rationality test can be deduced from there

Bhatnagar: You're keeping the seat vacant..

SC: We'll not go into that. Anything else?

Bhatnagar: For the purposes of irrational and arbitrary nature of this suspension, it is against basic structure and constitutional morality. It's not de jure vacancy. Look at the kind of

Bhatnagar: steps that the constituency is deprived of. I can't ask questions, can't move a matter, vote, nothing for one year. I can't participate in committee matters also.
I can give a list of these rules.

SC: Yes give.

Bhatnagar: Para 56 of Amrinder Singh is not restricted at all. It also relies on Raja Rampal.
This was my point.

SC: You can file written notice in one week.