Bombay High Court Refuses To Intervene In the Election Of Deputy Chairman of Maharashtra Legislative Council

A Division Bench of the Bombay High Court comprising of Justice Nitin Jamdar and Justice Milind N. Jadhav refused to intervene in the election (impugned election) of Dr. Neelam Divakar Gorhe as Deputy Chairman of the Maharashtra Legislative Council (MLC). The matter arose by a writ petition filed on behalf of Member of Legislative Council, Mr. Gopichand Kundalik Padalkar challenging the motion passed by a majority in the MLC towards the election of Dr. Gorhe as Deputy Chairman on September 8th, 2020 On April 23rd, 2020 the position of the Deputy Chairman of the MLC became vacant. On August 25th, 2020, the Business Advisory Committee of the MLC decided that a Session would be held on September 7th and 8th, 2020, and only members who tested negative for Covid would be able to attend. The Secretary of the MLC issued a circular on September 4th, 2020 to this effect. On September 6th, 2020, the petitioner tested positive for Covid. The claims of the petitioner are as follows: The impugned election was illegal and abrogated the petitioner's right under Article 182 of the Constitution of India which are threefold; (i) right to nominate a member as Chairman and Deputy Chairman; (ii) right to get oneself nominated as Chairman and Deputy Chairman, and; (iii) right to participate in the choosing of the Chairman or a Deputy Chairman. The Counsel for the petitioner argued that these were the fundamental rights of the petitioner.The impugned election was contrary to the Maharashtra Legislative Council Rules, 2009 (MLC Rules). The petitioner claimed that the MLC Rules mandate that a notice must be sent to any member before noon preceding the date fixed for the election of the Deputy Chairman. The petitioner contends that on September 7th, 2020, the Chairman suddenly announced that the said election would be held on the following day despite it previously not being on the agenda. Thereafter, a motion to suspend the requirement of the notice was moved and approved. This, according to the petitioner, was unconstitutional. At the outset, the court did not regard the rights mentioned under Article 182 to be fundamental rights. Citing Alagapuram R. Mohanraj v. Tamilnadu Legislative Assembly, (2016) 6 SCC 82, the court mentioned that the office of a legislator is not an 'occupation' under Article 19 (1) (g) and thus there is no violation of the fundamental right. On raising the argument that the rights under Article 182 can be constitutional rights, the court decided not to go into the legal issue and discussed the petitioner's case on merits as below: As far as the petitioner's right to nominate the Deputy Chairman is concerned, the court held that any other member of the petitioner's party could have nominated the member of the petitioner's choice. With regards to getting himself nominated, the court held that nothing stopped other members from nominating the petitioner. Moreover, as per the MLC Rules, the petitioner could not nominate himself. On the argument that the petitioner could not participate in the choosing of the Deputy Chairman, the court held that the September 4th, 2020 circular was general and not specific to the petitioner and had he not tested positive for Covid, he could have attended the election proceedings. Accordingly, the court held that no right of the petitioner was violated. Concerning the violation of the MLC Rules, the court held that Rule 289 itself permitted the suspension of a Rule therein. Thus, the motion passed to suspend the requirement of sending a notice regarding the election of the Deputy Chairman was not illegal. On the other allegations of the petitioner on rule violations, the court held that this was regarding the internal autonomy of the Legislature. The court held that the last-minute election of the Deputy Chairman being on the agenda was "at most a procedural irregularity". On citing a catena of judgments, the court held that only if the action of the Legislature is "ex facie illegal, unlawful or unconstitutional", the court can interfere, not otherwise. "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. No such case is established by the Petitioner".Accordingly, the court noted that it could not go into the MLC proceedings due to the embargo prescribed under Article 212 of the Constitution. The court upheld the election of Dr. Gorhe and accordingly dismissed the petition. CASE: MR. GOPINATH KUNDALIK PADALKAR VS. THE STATE OF MAHARASHTRA [WRIT PETITION (L) NO: 4486 OF 2020] CORAM: Justice...

Bombay High Court Refuses To Intervene In the Election Of Deputy Chairman of Maharashtra Legislative Council

Akshay Gudinho

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