Last week, the Bombay High Court ruled its restrictions in power presided under ‘judicial review’ stating that Article 212 of the Constitution expressly prohibited Courts from inquiring into the proceedings of the State Legislature due to irregularity of procedure.

The Court while refusing to intervene in the election of the Deputy Chairperson of Maharashtra Legislative Council, Dr. Neelam Divakar Gorhe, observed that the High Court is not an appellate body over the State Legislature.

It stated:

“While the High Court, in restricted circumstances, can exercise its power of judicial review to ensure that there is no abuse of power by the Legislature in respect of its proceedings, the Court must tread with caution and judicial restraint. This is so because 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 Constitution of India envisages that the High Court and the State Legislature recognize the institutional autonomy of each other.”

The two-Judge Bench also underscored that the Courts should exercise great caution and prudence when exercising the power of judicial review concerning proceedings of the State Legislature as the Constitution legislature and judiciary to remain autonomous.

Defining its power, the Court made it clear that it shall take up only grave matters concerning the Legislative functioning. It noted:

“Article 212 prohibits the Courts from inquiring into the proceedings of the State Legislature on the ground of any irregularity of procedure. These Articles are part of a Constitutional scheme of mutual deference by the High Court and the State Legislature regarding their internal functioning. For the High Court to exercise its power of judicial review in these matters, the case should be of such gravity that it transcends this scheme of mutual deference.”

The petitioner herein is a member of the MLC from the BJP and has challenged the motion carried for choosing the Deputy Chairperson during the two-day monsoon session of MLC.

He contended that he couldn’t attend the proceedings of the house as he was Covid positive as per the General Notice issued on September 4, 2020, only those members who were certified negative for COVID-19 were allowed to attend the session of the MLC and thus he got deprived of making his contribution in the selection process.

Relying upon Rule 6 of the MLC Rules as per which the date of Election should be declared and a Notice to be sent to every member any time before noon on the preceding day of the date so fixed.

Thus he submitted that the Notice has to be sent to all the members, and the election has to be two days after the announcement but such didn’t happen in the present matter.

Based on the above, Learned Senior Counsel of the petitioner thus contended that the election of the Deputy Chairman held during the session was in abrogation of the petitioner’s right under Article 182 to take part in the election and that being the position. The result of the election in favor of Gorhe is illegal and unconstitutional, he added.

Opposing the plea, Advocate General argued that since Article 182 provided for ‘choosing’ of the Chairman and Deputy Chairman and not ‘electing’, choosing a Candidate wasn’t a “Fundamental Right” under the Constitution.

The Court after taking the submissions referred to the slew of judgments and thereafter concluded that they can exercise judicial review over the actions of the State legislature only if such action is ‘ex facie illegal, unlawful or unconstitutional’ and that non-compliance of the procedural requirements don’t amount to that.

Carving one more surface to the contentions, the petitioner further argued that his right to be chosen on the position of the Deputy Chairman was violated with non-conclusion of him to the process of selection. Hew added 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 refused this argument and noted that he couldn’t remain present for the session on the ground that he was tested positive for COVID-19. Be that as it may, he couldn’t show any communication by him asking the other members to consider him for the vacant post to the Court.

The petitioner to this presented another argument that the agenda of Deputy Chairman elections was introduced at the last minute.

The Court terming it as mere ‘procedural irregularity’, clarified that they couldn’t sit in appeal over the internal autonomy of the legislature. It further noted that the 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’ and thus ultimately the motion was put to vote and carried by the majority.

The judgment was passed by a bench comprising of Justice Nitin Jamdar and Justice MN Jadhav on 07-01-2021.