Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)]
[This is a guest post by Anmol Jain.]
In one of my previous posts on this blog, I had argued for the adoption of the ‘Political Process Theory’ by the Indian judiciary while adjudicating matters concerning challenges to legislative action. This theory argues for the exercise of the power of judicial review when courts conclude that the impugned legislative action (or any other action that has been conferred finality and kept beyond judicial review by a constitutional document) results in a “political process failure.” This mechanism would ensure that any action violating the principles of representative constitutional democracy does not stand with impunity. Courts could decide on the legality of any action without entering the discretionary domain of labelling the impugned action as a procedural irregularity or a substantive illegality. The Supreme Court’s decision in Ashish Shelar v. The Maharashtra Legislative Assembly seems to have forwarded the political process theory and if taken to its logical conclusion, this decision can guide the future development and exploration of the wide potential of this theory.
The case involved a challenge to the resolution of the Maharashtra Legislative Assembly suspending the membership of 12 MLAs for one year citing their unruly behaviour. The Supreme Court, deciding in favour of the 12 suspended MLAs, held the resolution to be ‘unconstitutional, substantively illegal and irrational’. The court forwarded three arguments in this regard.
First, the power to order the withdrawal of any member is vested with the Speaker under Rule 53 of the Maharashtra Legislative Assembly Rules. The Speaker can direct the withdrawal of a member from the Assembly for the remainder of the day’s meeting on account of gross disorderly conduct. In case the member is ordered to withdraw for a second time in the same session, the member may be asked to withdraw from the meetings of the Assembly ‘for any period not longer than the remainder of the Session’. The Court noted these Legislative Rules must be considered as ‘law’ with the meaning of Article 13 and thus, such Rules are ‘the procedure established by law for the purpose of Article 21 of the Constitution’. While, by virtue of the Rules, only the Speaker should ordinarily decide on the suspension of members, the House may also pass a resolution in this regard in the exercise of its inherent power to discipline its members. However, the court ruled, that while exercising such power, the House:
…is expected to adhere to the ‘express substantive stipulation’ (which is not mere procedure) in the rules framed under Article 208 of the Constitution and the principle underlying therein, being procedure established by law.
As a graded objective mechanism has been prescribed for seeking withdrawal of a member under the Legislative Rules, with the highest punishment being the withdrawal of the member for the remainder of the Session, the House is also bound by the same. The court ruled:
If the House takes upon itself to discipline its members, it is expected to adopt the same graded (rational and objective standard) approach on the lines predicated in Rule 53. That would be a case of rational action taken by the House as per the procedure established by law. … if the resolution passed by the House was to provide for suspension beyond the period prescribed under the stated Rule, it would be substantively illegal, irrational and unconstitutional.
The court went on to label suspension for such a long period of one year as ‘grossly irrational’, ‘bordering on perversity’, ‘manifestly arbitrary’ and ‘violative of Articles 14 and 21 of the Constitution’.
The second reason forwarded by the Court was that even in the absence of Rule 53, the House cannot suspend a member for a period longer than necessary as such long suspensions would be beyond the inherent powers of the House altogether. The court noted that,
The inherent power of the Legislature is not absolute, but limited to remedial power to punish for contempt and to take such measures as are necessary for orderly functioning of the proceedings of the House. … the exercise of power can only be implied or inherent and limited to the logic of general necessity by way of self-protective or self-defensive action reasonably necessary for proper exercise of the functions of the House during the ongoing session.
The court observed that longer suspensions, and particularly those extending to the period of one year, go beyond being self-protective mechanisms. They are even harsher than expulsions as expelled members do have the opportunity to seek re-election within the next six months. Such suspensions also negatively impact the constituencies of the elected members. Therefore, the Court concluded, that any suspension beyond the ongoing session of the Assembly is ‘a drastic measure trenching upon imposing penalty more than disciplinary or corrective measure, beyond the limited inherent powers of the House.’
The third reason, which also reflects the court’s adoption of the political process theory, was that the suspension of the 12 MLAs for one year is undemocratic and can severely impact the parliamentary model of democracy as envisaged in the Constitution of India. The court noted, in paragraph 48, that if the power of the House to direct suspension of the member for one year is upheld, it may result in the possibility of the ruling party seeking withdrawal of the opposition members by using their numerical majority in the House. It may neutralise the culture of debate and discussion in the House as opposition members may ever be in a fear of suspension if they make any statement that could compromise the position of the ruling party. During such suspension, not only the checking mechanism against the actions of the ruling party would be absent, but there would also be a void for the constituencies that elected the suspended members. The opposition parties would also be devoid of a platform to present their alternative ideas on core government policies thus, denying them an equal chance of winning the next election. The representative form of democracy, as we know it and elaborated in the Indian Constitution, could be easily manipulated. As the Court observed, long suspensions
… 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.
This approach of the Supreme Court has great potential. It emphasizes that any legislative action that results in undemocratic processes, impacts the due procedure of functioning of the legislature and creates impediment in the parliamentary form of governance could be subjected to judicial challenge and held as unconstitutional. It requires necessary compliance with parliamentary procedures, if their non-observance leads to undemocratic results.
If extended to its logical conclusion, this approach could justify courts in even questioning the validity of any substantive legislative action undertaken without observing due adherence to parliamentary procedures. For instance, while deciding on the legality or constitutionality of any impugned legislation, courts ascribe a presumption in favour of its constitutionality and grant an interim stay of operation only if the substantive provisions of the impugned law are ‘manifestly unjust or glaringly unconstitutional’ or are ‘ex facie unconstitutional and the factors like, balance of convenience, irreparable injury and public interest are in favor of passing an interim order’. Courts do not include as a ground for the grant of interim stay or withdrawal of presumption of constitutionality the fact that the legislature disobeyed certain parliamentary procedures or conducted itself in an undemocratic manner by denying due process to members of the opposition parties. The decision of the Supreme Court in Ashish Shelar, particularly its emphasis on judicially disallowing any legislative action that results in undemocratic parliamentary procedures, could lay down the necessary framework for extending equal protection to procedural aspects of law-making as presently conferred upon substantive content of the laws. Presumption of constitutionality may be withdrawn when the petitioner, for instance, provides evidence of the ruling party disallowing or hindering fruitful debate and deliberation in the House and fast-pacing the law-making procedure as envisaged in the Constitution and respective parliamentary rules.
In scenarios where courts observe a blatant violation of parliamentary procedures, this decision may even justify quashing the impugned law without scrutinizing the substantive provisions against the constitutional mandates. The court could also use this approach to restrict the extent of the anti-defection law. It could prove to be highly significant in entrenching the procedural obligations upon the ruling party in the law-making and other parliamentary processes.
While such possibilities emerge from this judgment of the Supreme Court and future courts may choose to develop the Indian jurisprudence in this manner, the above discussion may still be taken with a note of caution. It remains unclear if the Court would have quashed the suspension of the 12 MLAs by merely relying on the third reason – the political process failure approach, and without resorting to the other two factors. Only once more concrete evidence of the same is visible that we can claim that the Court has adopted the political process theory.
Before concluding, I would like to briefly highlight the court’s ruling that Legislative Rules are ‘law’ for the purposes of Article 13 and any violation of their substance would constitute substantive illegality and not a mere procedural irregularity. In past, we have witnessed several instances of laws being passed in violation of Parliamentary Rules. For instance, the division of votes was declined by the Deputy Chairman of Rajya Sabha when the three farm laws were passed in Parliament. The decisions of the Court in Aadhaar and Rojer Mathew had stated that ‘a violation of constitutional mandate’ would constitute substantive illegality. It was unclear if the violation of parliamentary rules could also be considered as a ground to challenge the validity of the laws. Until the political process theory is fully ingrained in the court’s jurisprudence, such questions and debate around whether a particular violation is a procedural irregularity or substantive illegality would have lingered. The Court’s ruling to hold House Rules as ‘law’ for the purposes of Article 13 has provided necessary clarification in this regard. Any violation of parliamentary or state legislative rules can now constitute effective grounds for challenging the validity of laws.