Suspension Of MLA Beyond Ongoing Session Unconstitutional As Constituency Remains Unrepresented
Case: Ashish Shelar And Ors. Versus The Maharashtra Legislative Assembly & Anr.
Coram: Justice A.M. Khanwilkar, Justice Dinesh Maheshwari, Justice C.T. Ravikuma
Case No.: W.P.(C) No. 797/2021
Court Observation: 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 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)”
“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”
“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. Thus, the impugned resolution is unreasonable, irrational, and arbitrary and liable to be set aside”
“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”.
“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. 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”.
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Keywords
Suspension Of MLA, Constituency Remains Unrepresented, MLA, Suspension
