The Supreme Court has observed that the decision to suspend 12 BJP MLAs from Maharashtra Legislative Assembly for a year is prima facie an unconstitutional one, as there is a Constitutional bar to a suspension operating beyond six months and added that Legislative Assemblies have to function within Constitutional limits.
The apex court was hearing a plea by Maharashtra BJP MLAs who had challenged their suspension. The bench of Justices Dinesh Maheshwari, A.M. Khanwilkar, and C.T. Ravikumar stated that there is a Constitutional obligation to fill a seat within six months of it falling vacant.
The apex court said: “You can’t create a Constitutional void, a hiatus situation for the constituency. Each constituency has an equal amount of right to be represented in the House.”
In its observation, the apex court added that legislative assembly or any house has power to
suspend a member, but that cannot be for more than 59 days as per Article 190(4) of the Constitution. If a member of a House is absent from all meetings without its permission for a period of 60 days, the House may declare the seat vacant.
In his observation, Justice Maheshwari said, “How long a seat can remain vacant is 60 days. At the most six month is the outer limit, here we are talking about a constituency being represented in a Parliamentary form of democracy. Is this not hitting the basic structure of the Constitution when the 12 constituencies are unrepresented?”
Terming the issue unconstitutional and a serious lapse, Justice Khanwilkar said, “It becomes unconstitutional if you suspend someone for more than that.
This will create a lot of problems. Without motion you can suspend, now it is 12; tomorrow it will be 120. It’s a dangerous argument. Absolute power does not mean unbridled. This is a serious issue.”
The bench added that it will accept the argument of the petitioner’s counsel, senior advocate Siddharth Bhatnagar, that the “decision is worse than expulsion”. It remarked that the “consequences are dreadful”, as “none can represent these constituencies” in the absence of the elected MLAs.
“House has authority to suspend…but not beyond 59 days. The House is also governed by the Constitution and fundamental rights,” the bench added. The court said that it will pass a brief order soon.
