Legislative Council: Bombay HC dismisses BJP MLC’s plea against election of Neelam Gorhe as deputy chairman

The Bombay High Court on Thursday dismissed a plea by BJP MLC Gopichand Padalkar, who had challenged the election of Shiv Sena leader Neelam Gorhe as the deputy chairman of the Maharashtra Legislative Council.

Padalkar, who was barred from entering the Council to attend the election, as he was suffering from Covid-19, had moved HC seeking to set aside the September 8, 2020 results notification – which had declared Gorhe as the deputy chairman – claiming that it was illegal and arbitrary and also sought re-election.

A division bench of Justice Nitin M Jamdar and Justice Milind N Jadhav noted that the deputy chairman’s position was vacant since April 2020, and as per the Constitution, one had to be chosen for the post “as soon as may be”.

As the session of the Council was held amid the pandemic on September 7 and 8, “in the interest of health and safety of the members”, a general notice was issued on September 4 allowing only members with Covid-19 negative reports to attend the House. Following this, Padalkar had tested positive and could not participate in electing the deputy chairman, prompting him to challenge the election before HC.

Advocate General Ashutosh Kumbhakoni, representing the state, opposed the plea stating that the validity of any proceedings in the Council could not be called in question on grounds irregularity of procedure. He added that the alleged right of the petitioner to participate in the election could not be exercised because of peculiar circumstances, and not by the action of the respondents.

Justice Jamdar, who authored ruling for the bench, noted, “There is no merit in this challenge. Even to consider the challenge on this count, prejudice flowing from the same should be ex facie apparent. The petitioner is calling upon the court to undertake an inquiry into the propriety of the procedure adopted by the Legislative Council, which is impermissible in view of the Constitution.”

“Therefore, the petitioner’s right, as claimed, was not exercised due to the general direction issued in the interest of health and safety of the members. The decision to hold the session on these dates and for a two-day duration and not postpone an item are matters of the state legislature’s internal autonomy. Taking up a subject not on the agenda can, at the most, be considered as an irregularity of procedure.”

It further said: “Even assuming judicial scrutiny in these procedural aspects is permissible, there is no ex facie gross illegality or unconstitutionality in the action of choosing respondent Gorhe as deputy chairman. Gorhe enjoys the support of the majority of the members.”

On HC’s role in reviewing state legislature proceedings, the bench said: “While HC, 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 HC is not an appellate body over the state legislature, nor the state legislature is an inferior organ to the HC. The Constitution envisages that both recognise the institutional autonomy of each other.”

Dismissing Padalkar’s petition, moved by senior counsel Milind Sathe and advocate Pralhad Paranjpe, the court said, “For the HC to exercise its power of judicial review in these matters, the case should be of such gravity that it transcends this scheme of mutual (between HC and state legislature) deference. No such case is established by the petitioner.”