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SC on suspension of MLAs

Who are MLAs?

An MLA is a member of Legislative Assembly who is elected by the people in their respective constituency or electoral division. These MLAs then act as a representative in the Legislative Assembly.

Qualifications to become an MLA

1) He has to be a citizen of India

2) He must have attained the age of 25 years

3) He should not be of unsound mind or disqualified by the Court.

4) He should not hold any office of profit.

Role of MLA

An MLA is required to perform the following for roles

1) Legislator – This role involves learning and knowing spirit of law, planning new laws, studying and then either supporting or denying new laws.

2) Representative – Every MLA acts as a representative of his own constituency. He acts on behalf of his constituency and voice their problems are try to find solutions for them.

3) Member of an elected party caucus – This is an interesting role of MLA, where he may be involved in planning and framing strategies of the House, to support the caucus and give expert guidance in given subject areas.

4) Depending upon the status of the party of which MLA in a part he can either act as Cabinet Minister or Opposition Critic.

Duties of MLA

Duties of MLA depends upon the fact that whether the MLA is acting as member of cabinet or a member of opposition.

MLAs who are opposition members spend most of their time in research about various policies and asking doubts in the house about their constituencies and critic areas. These members also put forward their petitions, resolutions and private member’s Bills before the house.

MLAs who are acting as Cabinet Ministers spend most of their time in looking at the operations of their respective departments. Cabinet Ministers are the one who are bombarded with questions from the opposition party leaders and therefore they must be prepared with a brief answers to all such questions. They present their Government Bills and also check and deal with several estimates and Annual reports of their respective departments.

If any constituency is facing problems in their areas or are encountering with problems while dealing with government departments, then these issues are mostly referred to MLAs of that constituency for his assistance. MLAs spend much of their time in handling these problems and keeping aware of opinions of the constituency.

The network between the MLA and his Constituency is maintained by either phone or mails in writing or by conducting two annual households mailings which he is entitled to do.

Suspension of MLAs

The provisions for suspension of MLAs are

1) Rules 373, 374 and 374A Rules of Procedure and Conduct of Business in Lok Sabha lays down the provisions for suspension of members on the ground that the member’s behavior is “significantly irregular” and he has abused or intentionally interfered with the house rules. a) Rule 373 – The Speaker of the House may, if he feels that conduct of any member is grossly disorderly, he may order such member to withdraw immediately from the House and for the rest of the day’s sitting.

b) Rule 374(1) – The Speaker has the authority to name any member who has disregarded the authority of chair or has abused the rules of House by obstructing business.

Rule 374(2) – In such case, on motion being made, speaker can raise the question of suspension of such member from the service of House for a period not exceeding remainder of the session. However, the House can terminate such suspension at any time. Rule 374(3) – Any member suspended shall withdraw from precincts of the House.

c) Rule 374A - If a member is persistently obstructing the business of the House, by voicing slogans or otherwise, and if such person is named by the speaker, he is automatically suspended from the House for five consecutive sittings or remainder of session whichever is less.

Duration – From the above explanation, it is quite evident that a member can be suspended for the maximum period of five consecutive sessions or for the rest of the session, whichever shall be less.

2) In case of Rajya Sabha , Rules 255 and 256 of Rules of Procedure and Conduct of Business in the Council of States deals with suspension and withdrawal of members.

a) Rule 255 – If in the opinion of Chairman, the conduct of any member is grossly disorderly, he may direct that person to withdraw and absent himself for the remainder of the day’s meeting.

b) Rule 256(1) - The Chairman has the authority to name any member who has disregarded the authority of chair or has abused the rules of House by obstructing business.

Rule 256(2) – In such case, the Chairman on a motion being made shall suspend such person for a period not exceeding the remainder of the session.

Rule 256(3) – Any member suspended shall withdraw from precincts of the House.

The take of Supreme Court on Suspension of MLAs in following cases

1) Alagaapuram R. Mohanraj And Ors. v/s Tamil Nadu Legislative Assembly - Here nineteen members of the Tamil Nadu legislative assembly were suspended for the remaining period of current session for obstructing the proceedings of legislative assembly. The privilege committee was established to judge whether the conduct of the members amounted to breach of privilege. The committee stated that their conduct did amount to breach of privilege and therefore the petition was suspended. Also these members were not entitled to salaries during the period of suspension.

2) Shri Bhim Singh v/s State of Jammu Kashmir - In this case the petitioner was detained by the police on the ground of inflammatory speech and was deliberately preveted from attending the session of the legislative assembly which subsequently resulted in his suspension from the legislative assembly. As the mater went before Supreme Court, the court stated that there is gross violation of Article 21 and 22(2) and stated that Mr. Bhim Singh has a right to receive monetary compensation of Rs. 50,000.

3) Ashish Shelar v/s The Maharashtra Legislative Assembly – Recently, 12 MLAs from Maharashtra Legislative Assembly were suspended for their misbehavior and disclosure of data about OBCs. They approached Supreme Court, for their year long suspension and stated that they were not given an opportunity of being heard which results in violation of article 14 of the constitution. However, The Maharashtra Assembly argued it had acted within its legislative competence under article 212 and the courts have no jurisdiction to inquire into the matter. Also it stated that any member who breaches the privileges give to him shall be suspended through the power of the House. However, the Supreme Court stated that there is gross violation of basic structure doctrine of the constitution if the MLAs remain absent in the assembly for one year. Also under Article 190(4) if a member remains absent from house for sixty days, his seat can be declared as vacant and this vacancy must be filed within six months from the date of vacancy. Therefore, no constituency can remain without representative for more than one month. Therefore on year suspension is unconstitutional which amounts to not punishing member but punishing whole constituency.

Decisions of some High Courts

4) Om Prakash Sharma v/s The legislative Assembly of Delhi – Here, the speaker of the assembly has suspended petitioner for two days. While he was completing his suspension, members of AAP party demamnded to expel petitioner from legislative assembly. The court stated that the legislative assembly has the power to take action inter alia of suspension and expulsion of members which can be exercised only if the conduct of the member obstructs the legislative assembly’s functions.

5) Mahesh Kumar Srivastava v/s State of U.P. – Here, the petitioner was put under suspension. He challenged the order firstly because it was made without enquiry and order of suspension without contemplating enquiry is incorrect as it defeats the purpose of suspension. Secondly, he argues that he has been suspended without application of mind and only on the order of complaint made by MLA of other constituency which doesnot apply to petitioner’s constituency.

6) Ratan Singh Yadav S/O Late Pyare v/s State of U.P. – Here the petitioner was suspended on the ground he has considered himself above the jail procedure and above the authority of law which is against the Police Force, petitioner being the discipline force.

Thus, while concluding, it can be noted that the suspension of any member of the legislative assembly must take place according to the constitutional provisions and such suspension cannot exceed six months period. The members can be suspended only on certain grounds such as disorder, wilful interference or obstruction into the business of the house etc. Such suspension of members can take place through the speaker and the chairman.

This article is written by Neha Bodas of ADV.BALASAHEB APTE COLLEGE OF LAW.

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