[Editorial] The Purview of Judicial Review

Judicial Review

What the editorial is about?

The necessity to determine the purview of judicial review.

Context:

The legislative assembly of Maharashtra has suspended 12 legislators on the grounds of disorderly conduct for a period of one year.

  • There have been plenty of questions pertaining to
    • The long period of suspension.
    • The validity of the suspension.
  • Currently, the matter is pending in the Supreme court and has reserved its judgment on the same.

Most probable and repeated topics of upsc prelims

What makes to question the suspension and its validity?

  • The provisions of Representation of the People Act 1951, mentions that any vacancy in the house must be filled within six months of its occurrence through a by-election.
  • According to Article 190 (4) of the constitution, the House may declare the seat of a member vacant who is absent for 60 days without permission. This raises the question of whether any suspension could cross this 60-day limit.
  • This has encouraged the bench comprising of Justice A.M Khanwilkar, Justice Dinesh Maheshwari and Justice C.T Ravikumar, to question the rationale behind the suspension of the legislators beyond an ongoing session and also, to analyze whether a constituency can continue as unrepresented for the whole year due to the suspension of its representatives.
  • The bench expressed severe and deep concerns regarding the ongoing event as it determines the unlimited power of suspension that can be misused against a political party that has a slender majority in the house.

Stand of the State Government

The Counsel for the State Government has conveyed

The unlimited power of the legislature to punish any of its members for breach of privilege during its proceedings.

  • Once the power of the legislature to suspend the members is recognized, there can be no judicial review of the manner in which it was exercised.
  • According to the rules of the house, the Speaker can direct a member to withdraw from the assembly for misconduct even for the remainder of the session. This decision is taken after passing a resolution in the house having the agreement of the majority.

The Counsel for the State Government has put forth the argument

  • During the suspension, members continue to hold office, losing their voice in the legislature.

Way Forward

Learn from Past Outcomes of Judicial Creativity

  • In most instances, Judicial creativity has clearly broadened the scope of constitutional provisions for the larger good of the public in matters that are not clearly defined.
  • It will help to save from the threat surrounding the vibrant nature of our democracy from arbitrary decisions of the executive.

Scope of Examination

  • To uphold the supremacy of the constitution, Judiciary has enough scope to examine the entire issue and ascertain the rationale behind the tenure of suspension of the legislators in an unbiased manner

Judicial Review: A Part and Parcel of the Basic Structure Doctrine

  • There is a question regarding the extent to which judicial review can operate in this matter.
  • However, to bring an end to the complex situation emerging out of the suspension of the legislators, Judicial review can possibly be employed to keep a check on the arbitrary actions of the executive.
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