Legislature not inferior to High Court: Bombay HC dismisses challenge to election of Deputy Chairperson of Maharashtra Legislative Council
Maharashtra Assembly

Legislature not inferior to High Court: Bombay HC dismisses challenge to election of Deputy Chairperson of Maharashtra Legislative Council

The court was moved with a plea challenging the motion passed in the Maharashtra Legislative Council of choosing the Deputy Chairman claiming Petitioner's right to choose the candidate for that post was violated

High Court is not an appellate body over the State Legislature, the Bombay High Court ruled underscoring that courts should exercise great caution and prudence when exercising power of judicial review with respect to proceedings of the State Legislature.

The Constitution wanted both bodies, legislature and judiciary to remain autonomous, a Bench of Justices Nitin Jamdar and MN Jadhav observed proceeding to dismiss a plea challenging the motion passed in the Maharashtra Legislative Council (MLC) choosing Dr. Neelam Gorhe as its Deputy Chairperson.

“The High Court is not an appellate body over the State Legislature, nor the State Legislature is an inferior organ to the High Court,” the Court said.

The Court, therefore, refused to exercise the powers of judicial review on the ground that Article 212 of the Constitution expressly prohibited courts from inquiring into the proceedings of the State legislature due to irregularity of procedure.

State Legislature is not an inferior organ to the High Court.
Bombay High Court

For High Courts to exercise judicial review, the case should be of such gravity so as to require intervention of the Court, the Bench held.

The petitioner, Gopichand Padalkar, a member of the MLC from the BJP, had filed the plea challenging the motion carried for choosing the Deputy Chairperson during the two-day monsoon session of MLC.

Padalkar’s plea sought to quash and set aside the proceedings of held to choose the Deputy Chairperson.

Padalkar' contention was that he could not attend the proceedings of the house as he was Covid positive.

A general notice had been issued on September 4, 2020 to allow only those members who were certified negative for COVID-19 to attend the session of the MLC. Padalkar tested positive for COVID-19 on September 6 and could, therefore, not attend the proceedings and participate in choosing a Deputy Chairman because of the September 4 directive.

He also relied upon Rule 6 of the MLC Rules as per which the date of election should be declared and a notice be sent to every member any time before noon on the preceding day of the date so fixed. Therefore, the notice has to be sent to all the members, and the election has to be two days after the announcement, it was submitted.

However, in the instant case, the Chairman of the house declared at 12.00 noon on September 7, 2020 that an election would be held on September 8, 2020, contrary to the Rules.

Senior Advocate Dr. Milind Sathe appearing for Padalkar contended that the the election of the Deputy Chairman held during the session was, therefore, in abrogation of Padalkar’s right under Article 182 to take part in the election and that being the position, the result of the election in favour of Gorhe is illegal and unconstitutional.

Advocate General Ashutosh Kumbhakoni opposed the plea arguing that since Article 182 provided for ‘choosing’ of the Chairman and Deputy Chairman and not ‘electing’, choosing a candidate was not a fundamental right under the Constitution.

After referring to a slew of judgments, the Court deduced that they can exercise judicial review over the actions of the State legislature only if such action is ‘ex facie illegal, unlawful or unconstitutional’.

“Even though the Legislature may not have strictly complied with the procedural requirements laid down for regulating its business, that cannot be a reason for intervention by the Courts. The Legislature is a co-ordinate organ, and its views do deserve deference,” the Court said.

Another facet of Padalkar's contention was his right to be chosen as the Deputy Chairman was also violated.

His contention was that the proceedings of the Council were not postponed and if the election for that post is held again, the present position in the Council may change.

The Court however refuted this argument. They noted that Padalkar could not remain present for the session on the ground that he was tested positive for COVID-19. Be that as it may, he could not show any communication by him asking the other members to consider him for the vacant post.

On the argument that the agenda of deputy chairman elections was introduced at the last-minute, the Court termed it as a mere ‘procedural irregularity’. They could not sit in appeal over the internal autonomy of the legislature, it was held.

The Deputy Chairman's position was vacant since April 2020, and as per the Constitutional mandate under Article 182 the Deputy Chairman had to be chosen 'as soon as may be'.

"Ultimately the motion was put to vote and carried by majority", the Court observed while rejecting the argument.

[Read Order]

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