Parliamentary Bulletin Part II
No. 57066 Monday, December 04, 2017 42
Decision of the Chairman, Rajya Sabha on the Petition filed by Shri Ram Chandra Prasad Singh, Member against Shri Sharad Yadav, another Member under the Tenth Schedule to the Constitution of India
 

                                                                                                                                                    

 

 

 

        Thedecision, dated the 4th of December, 2017, of the Chairman,  Rajya Sabha given under paragraph 6(1) of theTenth Schedule to the Constitution of India is as under:––

ORDER

Shri Ram Chandra Prasad Singh,Member and Leader of the Janata Dal (United) [JD(U)] in Rajya Sabha (hereinaftercalled 'the Petitioner'), filed a petition before me on the 2ndof September, 2017, under Article 102 (2) read with paragraph 6 of the TenthSchedule to the Constitution of India and Rule 6 of the Members of the RajyaSabha (Disqualification on Ground of Defection) Rules, 1985 (hereinaftercalled 'the Rules') praying that Shri Sharad Yadav, Member, Rajya Sabha (hereinaftercalled 'the Respondent'), be disqualified under the Tenth Schedule to theConstitution and his seat be declared vacant in the Rajya Sabha.  In his petition, the Petitioner averred thatthe Respondent, Shri Sharad Yadav, who was elected to the Rajya Sabha on theticket of Janata Dal (United) from the State of Bihar on the 8th ofJuly, 2016, had by his repeated conduct, public/press statements against theJD(U) and its leadership and openly aligning with a rival political party, namely,the Rashtriya Janata Dal (RJD), proved that he has voluntarily given up themembership of the party, thus becoming subject to disqualification under theTenth Schedule to the Constitution.  Themain contention of the Petitioner is that the Respondent instead of adhering tothe unanimous decision taken on the 26th of July, 2017 by the JD(U)and its President, Shri Nitish Kumar to withdraw from the Mahagathbandhanand the coalition Government formed in Bihar in 2015, started anti-partyactivities by publicly denouncing the party's decision.  He campaigned with RJD leaders and workersbetween the 10th and the 12th of August, 2017 indifferent districts of Bihar and attended the public rally called by the rivalpolitical party, i.e., RJD, in Patna on the 27th of August,2017 despite written directive from Shri K.C. Tyagi, Secretary-General of theparty advising him not to attend the rally and also conveying to him that hisparticipation in the rally would be construed not only against the principlesof high morality but also as voluntarily giving up the membership of the JD(U).  The Petitioner had annexed newspaper clippings,media reports and videos as proof of the allegations.

2.     Having satisfied myself that the Petition complies with therequirements of Rule 6 of the Rules and in terms of sub-rule (3) of Rule 7, I,on the 11th of September, 2017, caused a copy of the Petition alongwith all Annexures thereto to be forwarded to the Respondent, in relation towhom the Petition had been made, with the request to furnish his commentsthereon, in writing within seven (7) days of the receipt of the same.  In response thereto, the Respondent, videletters dated the 15th and 18th of September, 2017,sought extension of one month time for furnishing his comments on thePetition.  In the interest of justice,however, I decided to grant him extension of time till the 25th ofSeptember, 2017 for furnishing his comments, and this was communicated to him, videRajya Sabha Secretariat's letter dated the 18th ofSeptember, 2017.

3.     The Respondent furnished his comments on the 22nd ofSeptember, 2017, wherein he contested all the averments made, argumentsadvanced and contentions raised in the Petition and sought dismissal of thePetition, under sub-rule (2) of Rule 7 of the Rules, on ground ofnon-compliance with the requirements of Rule 6. The Respondent stated that he being a founding member of the JD(U) hasremained committed to its principles and continues to be a member of the partyand has never intended to give up, least of all voluntarily give up themembership of the party or form a new political party.  He contended that the question of'voluntarily giving up membership of the party' can be determined only afterdecision of the question as to which the 'real party' is and since hisfaction's application, under paragraph 15 of the Election Symbols (Reservationand Allotment) Order, 1968, requesting for recognition of their faction as thereal JD(U) on the basis of majority support commanded by them within the JD(U),is pending before the Election Commission of India (ECI), a decision on thePetition may be taken only after final decision by the ECI.  He counter-alleged that it is Shri NitishKumar and his faction, who have voluntarily given up the membership of theJD(U) by withdrawing from the Mahagathbandhan, which was formed as acommon front against the Bharatiya Janata Party (BJP), and subsequentlyaligning with the BJP, thus blatantly betraying the trust reposed by the peopleof Bihar and their mandate.  He alsoalleged that Shri Nitish Kumar has split from the real JD(U) due to pure politicaland opportunistic reasons, in violation of the constitution of the party.  His main contention was that 'criticism ofthe decision of party leaders, taken in violation of the constitution of theparty, does not entail voluntarily giving up of the membership of theparty'.  The Respondent questioned theuse of newspaper articles/media clippings by the Petitioner as evidence andstated that they cannot be relied upon in the absence of any corroborativematerial.  He had also annexed newspaperclippings and media reports in the form of videos in support of his allegationsagainst Shri Nitish Kumar, President of the JD(U).

4.     Onperusal of the records of the previous cases of disqualification under theTenth Schedule in the Rajya Sabha, I observed that the procedural requirementsof the Committee of Privileges often entail a longer time frame for conduct ofpreliminary inquiry and preparation and submission of final Report, ultimatelycausing a delay in the proceedings and determination of the final question,which is against the very grain and object of the Tenth Schedule.  This also tantamounts to subverting theessence of the Anti-Defection Law, namely, to curb the menace ofdefection, by allowing a member to continue his membership without facing theconsequences of defection.  The Supreme Courtin its Order, dated the 11th of December, 2006, in Jagjit SinghVs. State of Haryana & Ors [(2006) 11 SCC 1], had observed asfollows:––

" Despite defection a member cannot be permitted to get away with itwithout facing the consequences of such defection only because of meretechnicalities."

        Further,sub-rule (4) of Rule 7 of the Rules reads as follows:––

" After considering thecomments, if any, in relation to the petition, received under sub-rule (3)within the period allowed (whether originally or on extension under thatsub-rule), the Chairman may either proceed to determine the question or, if heis satisfied, having regard to the nature and circumstances of the case that itis  necessary or expedient so to do,refer the petition to the Committee for making a preliminary inquiry andsubmitting a report to him."

From a perusal of this, it is veryclear that it is not mandatory to refer each and every case to the Committee ofPrivileges, as a matter of routine. Depending upon the nature and circumstances of the case, the Chairmanmay or may not refer the petition to the Committee for making a preliminaryinquiry.  When the facts of the case areclear, the Chairman in his wisdom may decide to proceed in the matter on hisown.  Attention is also drawn to the useof the word 'preliminary inquiry' in sub-rule (4) of Rule 7, which means thateven after preliminary inquiry by the Committee, it is for the Chairman tofinally analyze the facts and come to a final conclusion.  Keeping in view these facts, I decided toproceed with the determination of the question of disqualification of theRespondent myself.  Therefore, in theinterest of justice, I directed, on the 7th of October, 2017, toforward the comments of the Respondent to the Petitioner, for his commentsthereon, within seven (7) days of receipt of the same. 

5.     ThePetitioner, in his comments, dated the 13th of October, 2017,reiterated the facts already stated in his petition and submitted that thecomments of the Respondent were more in the form of an ideological speech andhave failed to answer the specific averments made and refute the allegationsmade in a substantial manner.  Heoutrightly rejected the claim of the Respondent that a dispute with respect tothe internal functioning of the party is pending before the ECI and termed itas factually incorrect stating that the ECI had, in fact, refused to take cognizanceof the petition filed in this regard. The Petitioner stated that existence of a dispute within the party isneither relevant nor germane to the determination of a disqualificationpetition; but, it is the conduct of the individual that needs to beexamined.  He contended that the onus ofestablishing the veracity of the contents of the newspaper articles/mediaclippings as false lay with the Respondent and that failure to deny or refuteamounts to acceptance.  As regards the Respondent's allegation of betrayingthe trust and mandate of the people of Bihar by withdrawing from the Mahagathbandhan,the Petitioner has contended that Shri Nitish Kumar had to withdraw from thecoalition Government and resign as Chief Minister of Bihar on the 26thof July, 2017, in accordance with the decision taken by the Extended StateExecutive of JD(U) Bihar including MLAs, MLCs, MPs (Rajya Sabha and Lok Sabha),all District Presidents and all Presidents of various units/wings/cells of theparty in its meeting held on the 11th of July, 2017, asking him notto compromise on the serious issues of corruption, money laundering and benamiproperties against some leaders of the coalition party, i.e., RJD,appearing in public domain and the raids conducted against them by theinvestigating agencies; and further asking him to take necessary action, as hedeemed fit.  This decision of Shri NitishKumar to withdraw from the Mahagathbandhan and resign as Chief Ministerof Bihar was unanimously approved by the Legislature Party in its meeting heldon the 26th of July, 2017 and by the National Executive and NationalCouncil of JD(U) in its meeting held on the 19th of August,2017.  Shri Nitish Kumar accepted theunconditional support offered by BJP in appreciation of his principled standagainst corruption, formed the Government and was sworn in as Chief Minister onthe 27th of July, 2017.  Healso proved his majority on the floor of the Legislative Assembly of Bihar onthe                         28thof July, 2017.  The Petitioner hadalleged that the Respondent did not attend the meeting of the NationalExecutive and National Council held on the 19th of August, 2017, towhich he was invited and where he could have voiced his concerns, but choseinstead to hold a parallel meeting, which was attended mainly by RJDworkers.  The Petitioner had held that Mahagathbandhanwas merely a political alliance formed on a common minimum programme to fightelections for the Legislative Assembly in Bihar and there can never be anycompulsion on the constituents of a coalition to remain welded despitefundamental differences.  Healso dismissed the claim of the Respondent as founding member of the party andobserved that even if his claim is admitted for the sake of argument, that doesnot confer any special rights on him to take his own decisions, which arecontrary to the unanimous views and decisions of the party.  Nopolitical party especially the JD(U) with strong and deep rooted commitmentagainst corruption in public life shall permit any of its member to align witha political party, whose leaders are embroiled in corruption with seriouscharges of benami property dealings and money laundering. 

6.  The Respondent, on the 11th ofOctober, 2017, filed an application requesting for a personal hearing and totake on record the Resolution adopted by the National Council of JD(U), in itsmeeting held on the 8th of October, 2017, wherein they had interalia accused Shri Nitish Kumar of conspiratorial action toeliminate any chance of opposition against him by not holding organizationalelections within JD(U) from April, 2016 onwards and declaring the decisionstaken by him from 10th April, 2016 onwards as illegal and void abinitio.

7.     Witha view to afford a reasonable opportunity to the Respondent to represent hiscase and be heard in person, in terms of sub-rule (7) of Rule 7, I directedthat a notice, along with a copy of the comments, dated the 13th ofOctober, 2017 of the Petitioner, on the reply dated the 22nd ofSeptember, 2017 of the Respondent to the Petition, be issued to the Respondentinforming him that an opportunity for oral hearing before me has been grantedto him at 9.30 A.M. on the 30th of October, 2017 in my room, i.e.,Room No. 216, Second Floor, Block A, Parliament House Annexe Extension (PHAExtn.) Building, New Delhi.  This wasconveyed to him, vide Rajya Sabha Secretariat's letter, dated the 18thof October, 2017. 

8.     Meanwhile,the Respondent filed another application, dated the 18th of October,2017, and forwarded it, vide letter dated the 20th ofOctober, 2017, wherein he drew my attention to the application, dated the 17thof October, 2017, filed before the ECI, under paragraph 15 of the ElectionSymbols (Reservation and Allotment) Order, 1968, for recognition of the JD(U)led by Shri Chhotubhai Amarsang Vasava, Acting President and for allotment ofthe party symbol, i.e., Arrow, with respect to Section 29A of theRepresentation of the People Act, 1951 and paragraph 13 and 13A of the ElectionSymbols (Reservation and Allotment) Order, 1968.  This fresh application was filed afterrejection of their earlier applications in this regard for want of documentaryevidence and in response to the ECI's letter, dated the 27th ofSeptember, 2017, stating that they may file a fresh application along withdocumentary evidence in support of their claim. The Respondent had requested to take on record the additional facts anddocuments filed along with the application, but had not enclosed Annexure-4thereto, namely, the Application, dated the 17th of October,2017, filed before the ECI, citing that it was voluminous running into 3000pages along with 429 affidavits by the members of the National Council of JD(U)and might be made available, whenever required by the Rajya Sabha Secretariat.         

9.     TheRespondent, vide letter dated the 23rd of October, 2017,sought extension of 8 weeks time for appearing for the oral hearing citingmeetings/engagements relating to the forthcoming elections to the LegislativeAssemblies of the States of Gujarat and Himachal Pradesh.  However, after considering his request, Igranted him extension of one week and directed him to appear in person beforeme to represent his case at 10.00 A.M. on the 8th of November, 2017in my room, i.e., Room No. 216, Second Floor, Block A, Parliament HouseAnnexe Extension (PHA Extn.) Building, New Delhi and also informed him that nofurther extension would be granted in this case. This was communicated to him, videRajya Sabha Secretariat's letter, dated the 24th of October, 2017. 

10.  The Respondent, vide letter dated the 4thof November, 2017, requested to allow him to appear for the oral hearingaccompanied by two Advocates, namely, Shri Kapil Sibal and Shri DevadattKamat.  Subsequently, another letter,dated the 7th of November, 2017, was received from him requesting toallow four more Advocates, namely, Shri Mohammad Nizamuddin Pasha,     Shri Javedur Rahman, Shri Rajesh Inamdarand Shri Aditya Bhatt.  I considered hisrequests and decided not to accede to them, as there was neither any provisionin the Rules for the purpose nor any precedents in the Rajya Sabha and the samewas communicated to him, vide Rajya Sabha Secretariat's letter, datedthe 7th of November, 2017.    

11.  Meanwhile, the Respondent filed a thirdapplication, dated the                       7th of November, 2017, wherein he reiterated the pointsalready submitted by him in his comments on the Petition and his twoapplications.  All the points raised inthe application pertain to internal party matters, which are not subjectmatters of the Tenth Schedule and, therefore, do not fall within myjurisdiction. 

12.  The Respondent appeared in person before me at10.10 A.M. on the              8thof November, 2017.  At the outset, he handed over a letter,dated the                     7thof November, 2017, and again requested that his Advocates should be allowed torepresent and argue his case before me on his behalf and alleged that by notacceding to his requests, the principles of natural justice have beenviolated.  The Respondent reiterated thatit is not him, but Shri Nitish Kumar and his supporters, who had abandoned theparty by acting in violation of the party constitution and rules.  He also informed that the dispute as to whichfaction is the real JD(U) is pending before the ECI and will be decided by themafter the hearing scheduled on the 13th of November, 2017.  In the letter handed over to me by theRespondent, which was taken on record, he had stated that since the hearing inany matter under the Tenth Schedule is in the nature of quasi-judicialproceedings, for this purpose, the Speaker/Chairperson has been held to be aTribunal by the Hon'ble Supreme Court in a catena of judgements and that theorder of the Chairman is subject to judicial review by the constitutionalcourts of the country, as in the case of any other Tribunal.  Moreover, the proceedings before thisTribunal has all the trappings of a Court, since the issue is taken up only ona complaint made to the Chairman and the necessity to be represented throughAdvocates arises as the matter involves complicated issues of constitutionallaw requiring interpretation of the provisions of the Tenth Schedule.  He contended that there is no bar in  Rule 7(7) of the Rules against a memberappearing before the Hon'ble Chairman through an Advocate, as it is evidentthat the provision for being heard in person is in addition to being allowedlegal representation.  In view of thenumber of instances of proceedings under the Tenth Schedule in Parliament aswell as in State Legislative Assemblies wherein arguments have been addressedby the Advocates and full-fledged trials have been conducted, he had requestedfor an opportunity on any date of my convenience to appear before me andpresent his case through Advocates as well as in person.  He had also stated that if his request is notacceded to, I may proceed with the hearing in his absence under protest. 

13.  I informed the Respondent that his writtenrequests to allow Advocates to accompany him for the oral hearing had not beenacceded to after careful scrutiny of the case, the Rule position, thewell-established practice and the precedents in the Rajya Sabha including thedecision of my predecessor in the disqualification case of Shri Isam Singh(2008), wherein he had categorically disallowed Shri Isam Singh's repeatedrequests for bringing his Advocate to the oral hearings.  Further, after careful consideration of hissubmission, I find no reason to change my earlier decision taken on the 7thof November 2017, disallowing Advocates to accompany him for the oralhearing.  Moreover, defence throughAdvocates is not allowed to either of the parties in such proceedingstraditionally and therefore there is a balance of judgement.  I also told him that it is evident from hisdetailed replies that the same were prepared by or in consultation with theAdvocates and that he should have come prepared for the oral hearing afterconsulting them.  When asked whether hehas anything else to adduce besides the facts already submitted in writing, theRespondent stated that he had nothing to add, but reiterated his request toallow his Advocates to represent his case.

14.  As regards the contention of the Respondent,that the Chairman functions as a Tribunal in matters under the Tenth Scheduleand, therefore, the proceedings before this Tribunal have all the trappings ofa Court, the following observations made by the Supreme Court in its judgement,dated the 18th of February, 1992, in Kihoto Hollohan Vs. Zachillhuand Others [1992 SCR (1) 686, 1992 SCC Supl. (2) 651, JT 1992 (1) 600,1992 SCALE (1) 338], clarifying the role of the Speaker or the Chairman asa Tribunal under the Tenth Schedule, are apposite:–

" Alltribunals are not courts, though all courts are tribunals.  By 'courts' is meant courts of civiljudicature and by 'tribunals', those bodies of men who are supposed to decidecontroversies arising under certain special laws.  Where there is a lis - an affirmation by oneparty and denial by another - and the dispute necessarily involves a decisionon the rights and obligations of the parties to it and the authority is calledupon to decide it, there is an exercise of judicial power.  That authority is called a Tribunal, if itdoes not have all the trappings of a Court. Thus, the Speaker or the Chairman, acting under Paragraph 6(1) of theTenth Schedule is a Tribunal."

 The following observations made by the SupremeCourt in its judgement, dated the 11th of December, 2006, in JagjitSingh Vs. State of Haryana & Ors. [(2006) 11 SCC 1], are also relevantin the context:––

" Thequestion whether reasonable opportunity has been provided or not cannot be putin a strait-jacket and would depend on the fact situation of the case.  At the outset, we may mention that whileconsidering the plea of violation of principles of natural justice, it isnecessary to bear in mind that the proceedings, under the Tenth Schedule, arenot comparable to either a trial in a court of law or departmental proceedingsfor disciplinary action against an employee. The scope of judicial review in respect of proceedings before suchTribunal is limited.  We may hasten toadd that howsoever limited may be the field of judicial review, the principlesof natural justice have to be complied with and in their absence, the orderswould stand vitiated.  The yardstick tojudge the grievance that reasonable opportunity has not been afforded would,however, be different.  Further, if theview taken by the Tribunal is a reasonable one, the Court would decline tostrike down an order on the ground that another view is more reasonable.  The Tribunal can draw an inference from theconduct of a member, of course, depending upon the facts of the case andtotality of the circumstances. 

While applyingthe principles of natural justice, it must be borne in mind that 'they are notimmutable but flexible' and they are not cast in a rigid mould and cannot beput in a legal strait-jacket.  Whetherthe requirements of natural justice have been complied with or not has to beconsidered in the context of the facts and circumstances of a particularcase." 

In view of the above saidobservations of the Supreme Court vis-a-vis the facts and circumstancesof the instant case, there has been, in my considered view, no violation of theprinciples of natural justice by not acceding to the Respondent’s request thatadvocates be permitted to accompany him during the oral hearing. As a matter offact, quite in line with the principles of natural justice and also in keepingwith the requirements of Rule 7 (7) of the Rules, the Respondent was offered areasonable opportunity of being heard in person to represent his case.

15.          According to paragraph 2 (1) of theTenth Schedule of the Constitution, a Member can be disqualified in thefollowing circumstances:––

(a)   if  he/she voluntarily gives up the membership ofthe political party to which he/she belongs; or

(b)   when he/she votes orabstains from voting in the House, contrary to any direction issued by thepolitical party to which he/she belongs, without obtaining prior permission andsuch voting or abstention has not been condoned by such party, within 15 daysfrom the date of such voting or abstention.  

Obviously, the case falls underparagraph 2 (1) (a) of the Tenth Schedule. I would now proceed to examine the merits of this case under thisprovision. 

16.          Ihave observed from perusal of the records, i.e,the Petition and the comments of the Respondent on the Petition along with allAnnexures thereto, the comments of the Petitioner on the said comments of theRespondent, the facts submitted by the Respondent through his additionalapplications along with all Annexures thereto and the facts presented by himduring the oral hearing, that the Respondent, instead of specifically denyingor refuting the allegations of indulging in anti-party activities levelledagainst him by the Petitioner, was only trying to establish that the decisionof Shri Nitish Kumar to withdraw from the Mahagathbandhan and to alignwith the BJP has resulted in a split in the JD(U) into two factions - oneheaded by Shri Nitish Kumar and another comprising him and his supporters andthat the latter group commanded majority support within the JD(U) and that adispute in this regard was pending before the ECI.  The main line of argument adopted by him wasthat it was not him, but Shri Nitish Kumar and his faction, who had voluntarilygiven up the membership of the JD(U), by violating the aims and objects laiddown in the party constitution and acting against the principles on which theparty was founded, thereby becoming subject to disqualification under the TenthSchedule.  However, he has failed toproduce any clinching documentary or other evidence to substantiate hisclaim.  Further, paragraph 1 of the TenthSchedule to the Constitution, defines the 'Legislature Party' and the 'OriginalPolitical Party' as follows:––

"Interpretation   1.     XXXXXXX

(b)       "legislature party", inrelation to a member of a House belonging to any political party in accordancewith the provisions of paragraph 2 or [xxx] paragraph 4, means the groupconsisting of all the members of that House for the time being belonging tothat political party in accordance with the provisions;

(c) "originalpolitical party", in relation to a member of a House, means the politicalparty to which he belongs for the purposes of sub-paragraph (1) of paragraph2."

It does not take cognizance of anypolitical alliance made by political parties. The Mahagathbandhan was a political alliance of some politicalparties formed for the purpose of contesting the 2015 Legislative Assemblyelections in Bihar and JD(U) was one of its constituents. As such, leaving orjoining of any political alliance by political parties does not fall within thepurview of the anti-defection Law.    

17.          TheRespondent's harping on a pending dispute regarding the JD(U) before the ECI isnot germane to the determination of the disqualification petition, since it ispurely an internal matter of the party falling outside the purview of the TenthSchedule and, therefore, outside my jurisdiction.  In any case, as per facts furnished by thePetitioner and the Respondent himself, ECI had rejected the claim of the groupsupported by the Respondent twice, citing lack of documentary evidence insupport thereof.  The Respondent hasquestioned the validity of the decision pertaining to his removal from the postof the Leader of the JD(U) Legislature Party in Rajya Sabha and the legal andmoral authority of Shri K.C. Tyagi, Secretary-General of the JD(U) to issue hima directive not to attend the rally called by RJD.  In this context, I have to go by the dictumthat in a democracy, it is the rule of the majority and the voice of themajority that will have to be accepted. If a dispute is, therefore, raised regarding the leadership of alegislature party/group, I have to examine and decide on the material and evidenceplaced before me by each side, on which they have based their claim.  In the instant case, the Respondent hasfailed to prove with documentary or other evidence that his group commandsmajority support within the JD(U) Legislature Party in Rajya Sabha.  On the contrary, Shri Ram Chandra PrasadSingh was unanimously elected to the post of the Leader of the JD(U)Legislature party in Rajya Sabha, in the meeting of their parliamentary partyheld in New Delhi, on the 11th of August, 2017, and this was intimatedto the Rajya Sabha Secretariat by Shri Kaushalendra Kumar, Member, Lok Sabhaand Leader of the JD(U) in Parliament. This was taken cognizance of by the Rajya Sabha Secretariat and therecords of the Rajya Sabha were updated accordingly.  Moreover, as per the documents submitted byJD(U) to the ECI after the organizational elections of 2016, Shri K.C. Tyagi iscurrently the Secretary-General of JD(U). The claim of the Respondent that the Petitioner does not have the locusto file the Petition, is also not tenable, since the Petitioner, Shri RamChandra Prasad Singh is a Member of the Rajya Sabha and as per the Rules, anyMember of the Rajya Sabha can file a petition seeking the disqualification ofany other Member. 

18.          Thevery fact that the Respondent had attended and addressed the public rallycalled by the rival political party, i.e., RJD in Patna on the 27thof August, 2017, despite written directive from Shri K.C. Tyagi,Secretary-General of JD(U), advising him not to attend the same and cautioninghim that his participation therein would be construed as voluntarily giving upmembership of the JD(U), is enough to establish beyond doubt that he has noregard for the party directive and has blatantly violated it.  Further, the fact that he had supported theapplication filed before the ECI against Shri Nitish Kumar, President of theJD(U) and had with the support of some members of the JD(U), moved and adoptedResolutions declaring the decisions of Shri Nitish Kumar as illegal, invalidand void, regarding which he had himself submitted documentary evidence, alsoestablish beyond doubt that he has indulged in anti-party activities.  His public denouncement of Shri NitishKumar's decision to withdraw from the Mahagathbandhan and align with theBJP and publicly aligning with the rival party of JD(U), namely,Rashtriya Janata Dal (RJD), by supporting their leaders and policies, sharingof dias and addressing their meetings/rally, all of which he has neither deniednor refuted, also testify to the fact that he no longer supports the policiesand decisions of the party, on whose ticket he was elected.  It also appears from the facts presentedbefore me that the Respondent, instead of raising his objections within theparty forum, for which ample opportunities were available to him, namely,meeting of the Extended State Executive of JD(U)Bihar on the 11th of July, 2017, and of the National Executive and the National Council of JD(U) on the19th of August, 2017, went ahead with his criticism ofthe party policies and decisions of his party President in media as well as onpublic platforms, including meetings/rally of the rival political party.  Though the Respondent had stated in hiscomments on the Petition that he had expressed his disapproval of the decisionto withdraw from the Mahagathbandhan to Shri Nitish Kumar on the 12thof August, 2017, he did not submit any documentary proof or othermaterial/evidence in support thereof.  Healso did not clarify the response of Shri Nitish Kumar thereto.  The Respondent has held that criticism of thedecision of party leaders, taken in violation of the constitution of the party,does not entail voluntarily giving up of the membership of the party.  Here, I would like to mention that apolitical party, which is an essential part of the democratic set up, worksthrough collective decisions.  Though onemight have differences with the decision of the party, he is ultimately tofollow the collective decision of the party. He has every right to air his views in the meetings and forums of theparty before a decision is taken and may be even after that also.  But if a member of any political party startscriticizing the decisions of his own party publicly, after the decision hasbeen taken, and goes to the extent of attending and addressing the rallies ofthe rival political parties, it will fall under anti-party activity and incase, the person concerned is a Member of the State Legislature or Parliament,this amounts to voluntarily giving up the membership of the party, thusincurring disqualification under the Tenth Schedule.  In my considered opinion, a Member getselected as a candidate of a political party because of the policies andmanifestos of the party and if the Member criticizes his party publicly, hewill be deemed to have given up his membership of the political partyvoluntarily.                   

19.          Paragraph2 (1) (a) of the Tenth Schedule states that 'a member of a House belonging to apolitical party shall be disqualified for being a member of the House, if hehas voluntarily given up his membership of such political party'.  Theterm 'voluntarily given up membership' has been amply clarified by the SupremeCourt in its judgement, dated the 9th of February, 1994, in RaviNaik Vs. Union of India [1994 AIR 1558, 1994 SCR (1) 754, 1994 SCC Supl. (2)641, JT 1994 (1) 551, 1994 SCALE (1) 487], wherein the Court had interalia observed as follows:––

" The words 'voluntarily given up his membership' arenot synonymous with 'resignation' and have a wider connotation.  A person may voluntarily give up hismembership of a political party even though he has not tendered his resignationfrom the membership of that party.  Evenin the absence of a formal resignation from the membership an inference can bedrawn from the conduct of a member that he has voluntarily given up hismembership of the political party to which he belongs."

In the same case, the SupremeCourt had upheld the decision of the Speaker of the Goa Legislative Assemblydisqualifying two MLAs, who were elected on the ticket of the MaharashtrawadiGomantak Party (MGP), on the conduct alone of their accompanying the Leader ofthe Congress (I) Legislature Party in Goa, when he met the Governor to showthat he had the support of twenty MLAs.  

20.          The SupremeCourt in its orders, dated the 24th of January, 1996, in G.Viswanathan Vs. The Hon'ble Speaker, Tamil Nadu Legislative Assembly, Madras& Another [1996 AIR 1060, 1996 SCC (2) 353, JT 1996 (1) 607, 1996 SCALE (1)531], had also inter alia observed as follows:––

"The act of voluntarily giving up the membership of thepolitical party may be either express or implied."

21.          Prior to the above-said observations of the Supreme Courtin the Ravi Naik case, the Committee of Privileges (Eighth Lok Sabha)had also pondered over the meaning of the term 'voluntarily giving upmembership' and made the following observations:––

" The Committee have also considered as to what amountsto voluntarily giving up of membership of a political party by a member.  The Committee notes that the words used inparagraph 2(1)(a) of the Tenth Schedule are: 'If he has voluntarily given uphis membership of such political party' and not 'if he has voluntarily resignedfrom such political party'.  TheCommittee feel that the use of words 'voluntarily given up' is very significant......To insist that a letter of resignation to the competent authority,voluntarily tendered would alone disqualify would be placing too narrow aninterpretation on the constitutional provision and would in fact negate thevery objective which Parliament had in mind while enacting the Constitution(Fifty-second Amendment) Act and that such an interpretation would lead togross circumvention of the provisions of the Tenth Schedule. 

The Committee are convinced that it was with a view toobviating such situations that the words 'voluntarily given up' were used inparagraph 2(1)(a).  As the law does notdefine the precise manner in which the membership is to be given up, the wordshave to be interpreted according to the spirit in which they have been used inthe Act.  The intention of the law-makersis quite clear: that it is not only by the overt act of tendering hisresignation but also by his conduct that a member may give up the membership ofhis political party.  The Committee areof the view that if a member by his conduct makes it manifestly clear that heis not bound by the party discipline and is prepared even to wreck it by hisconduct, he should be prepared to pay the price of losing his seat and seekingre-election."    

22.          In another decision, dated the 27th of October,2004, in                                     Dr.Mahachandra Prasad Singh Vs. Chairman, Bihar Legislative Council & Ors.[(2004) 8 SCC 747], the Supreme Court had observed as follows:––

“ Therefore, the final authority to take a decision on thequestion of disqualification of a member of the House vests with the Chairmanor the Speaker of the House. It is to be noted that the Tenth Schedule does notconfer any discretion on the Chairman or Speaker of the House. Their role isonly in the domain of ascertaining the relevant facts. Once the facts gatheredor placed show that a member of the House has done any such act which comeswithin the purview of sub-paragraph (1), (2) or (3) of paragraph 2 of the TenthSchedule, the disqualification will apply and the Chairman or the Speaker ofthe House will have to make a decision to that effect.”

23.          In view ofsuch authoritative pronouncements by the Hon’ble Supreme Court, while decidingthe petition in which the allegation is of the violation of paragraph 2(1)(a)of the Tenth Schedule, the role of the Chairman, as the designated authority,is only in the domain of ascertaining the facts and once the facts are gatheredor placed to show some action, express or implied, within the meaning ofparagraph 2 (1) (a) of the Tenth Schedule, to take a decision in thematter.  The limited role which aPresiding Officer has to perform under the above-cited paragraph of the TenthSchedule has been amply clarified by the Supreme Court in Dr. MahachandraPrasad Singh                    Vs.Chairman, Bihar Legislative Council & Ors. [(2004) 8 SCC 747], where ithad observed as under:––

" It may be noticed that the nature and degree ofinquiry required to be conducted for various contingencies contemplated byparagraph 2 of the Tenth Schedule may be different.  So far as clause (a) of paragraph 2 (1) isconcerned, the inquiry would be a limited one, namely, as to whether a memberof the House belonging to any political party has voluntarily given up hismembership of such political party."

As such, it now remains for me to decide, whether expresslyor by implication, the Respondent has voluntarily given up the membership ofhis political party, namely, the JD (U). From the actions and statements of the Respondent based on thematerial/evidence presented before me, it can be inferred that he hasvoluntarily given up his membership of JD(U), on whose ticket he was elected tothe Rajya Sabha.       

24.          The Petitionerhad relied mainly on newspaper clippings and video recordings which appeared onvarious TV channels as proof of the anti-party activities of the Respondent andhis having voluntarily given up membership of the JD(U).  The Respondent has objected to the use ofnewspaper clippings and video recordings as evidence by the Petitionercontending that newspaper articles cannot be relied upon as evidence in theabsence of any corroborative material. However, it is ironical that despite this objection of the Respondent,he himself has resorted to newspaper clippings as evidence in support of hiscounter-allegations against Shri Nitish Kumar. In my view, the newspaper reports alone cannot be taken as substantiveevidence, and at best can be taken as providing reliable circumstantialevidence, unless proved otherwise. It has inter alia been observed bythe Hon’ble Supreme Court in Samant N. Balakrishna etc. Vs. GeorgeFernandez and Ors. etc. [1969 AIR 1201, 1969 SCR (3) 603, 1969 SCC (3) 238], asfollows:––

" A news item withoutany further proof of what had actually happened through witnesses is of novalue.  It is at best a secondhandsecondary evidence.  xxxxxxx  Such news items cannot be said to provethemselves although they may be taken, into account with other evidence, if theother evidence is forcible."

However, in the instant case, I see no reason as to why somany newspapers and media channels would publish/report something wrongly andif that was so, then the least that was expected of the Respondent was toforthwith deny the same and issue clarification/explanation in thatregard.  In this case, many leadingnational and regional/state newspapers and media channels did in fact reportabout the Respondent campaigning with RJD leaders and workers and hisaddressing the public rally called by RJD on the 27th of August,2017, as well as his criticism of Shri Nitish Kumar's decision.  From the video recordings and newspaperclippings/articles provided by the Petitioner, I have found that the Respondenthad on numerous occasions, particularly in media bytes/interviews to variousmedia channels, disapproved the decision of Shri Nitish Kumar to withdraw fromthe Mahagathbandhan and form the Government in alliance with BJP, thusbetraying the trust and mandate of the people of Bihar and affirmed that hewould be attending the rally called by RJD in Patna on 27th ofAugust, 2017.  I have also found himspeaking in support of the Mahagathbandhan in public meetings in somedistricts of Bihar as well as addressing the public rally of the RJD held atGandhi Maidan in Patna on the 27th of August, 2017.   The video recordings thus provide ample andirrefutable proof that the Respondent had indeed attended and addressed thesaid rally and made statements openly criticizing the decision of his party andits President.  Further, the Respondentinstead of categorically denying or refuting the allegations appearing in thenewspaper clippings/media reports, has himself admitted that he had attendedand addressed the rally organized by the rival political party, i.e,RJD.  Therefore, there is no reason topresume that the video recordings are doctored, more so, since the Respondenthimself has not questioned their veracity. Therefore, apart from the newspaper reports, there are more thansufficient material, in the form of video recordings corroborating the factthat the Respondent had, in fact, taken part in the rally of RJD; criticizedhis own party's decision to leave the Mahagathbandhan and form theGovernment with the support of the BJP; and the Respondent's own admission ofhaving attended the rally, for me to come to a finding that the Respondent hasindulged in anti-party activities, thus attracting the provisions of paragraph2 (1) (a) of the Tenth Schedule to the Constitution of India.

25.          Incidentally,it has also come to my notice that the primary argument of theRespondent that the group led by Shri Chhotubhai Amarsang Vasava, ActingPresident, to which he and his supporters belong, is the real JD(U) has been outrightlyrejected by the Election Commission of India vide Orders, dated the 17thof November, 2017, which inter alia reads, as follows:–––

" (i)         Having considered the submissions, bothwritten and oral, and the   documentssubmitted in support of their respective claims by the two groups, theCommission holds that the principle of test of majority support in theorganisational and legislative wings as upheld by the Hon'ble Supreme Court inSadiq Ali Vs. Election Commission of lndia & Others (AlR 1972 SC 187), andconsistently applied by the Commission in all such cases in the past, wouldapply in the instant case in the facts and circumstances of the case.

(ii)           The respondent group led by Sh.Nitish Kumar has demonstrated overwhelming majority support in the legislaturewing as well as the majority in the National Council of the Party which is theApex level organisational Body of the Party.

(iii)  Accordingly, the group led by Sh. NitishKumar is hereby recognised as the Janata Dal (United) in terms of Paragraph-15of the Symbols Order. Consequently, the group led by Sh. Nitish Kumar isentitled to use the reserved symbol 'Arrow' of the Party as a recognised StateParty in Bihar."

The above-said orders of the ECI havelaid to rest the pending dispute over the leadership of the JD(U) and the groupwhich constitutes the real party. Subsequently, the ECI has also passed a detailed Order in this regard onthe  25th of November, 2017.

26.          Before pronouncing my Order, I would like to mention thatthere has been widespread criticism of some Presiding Officers, who did nottake a decision on the disqualification petitions, under the Tenth Schedule ofthe Constitution of India, within reasonable time.  It has been noticed that the Hon'ble SupremeCourt also expressed its concern about the unnecessary delay in deciding thesepetitions by the Presiding Officers of the Legislatures.  In the case of Speaker, Haryana VidhanSabha Vs Kuldeep Bishnoi & Ors. (AIR 2013 SC 120), the Speaker of theAssembly practically took about four years in deciding the petition ofdisqualification and single bench and a division bench of the Punjab &Haryana High Court and ultimately the Supreme Court vide its Order datedthe 28th of September, 2012, had to give a direction to the Speakerto decide the petition within three months. In another case in the Uttar Pradesh Legislative Assembly, similar typeof delay was caused by the Speaker in deciding the disqualification petitionand ultimately the matter went to the Supreme Court [Mayawati Vs MarkandeyaChand & Ors (1998 7 SCC 517)]. The Supreme Court instead of remanding the case to the Speaker,disqualified the MLAs itself.  There havebeen many other cases also, where the Courts have expressed concern about theunnecessary delay in deciding such petitions. I am of the considered opinion that, such petitions which go to the rootof the democratic functioning and which raise the question, whether aparticular legislator (lawmaker) is entitled to sit in the Legislature or not,should not be kept pending and dragged on by the Presiding Officers, with aview to save the membership of the persons, who have otherwise incurreddisqualification or even to save the Government, which enjoys majority onlybecause of such type of persons.  I am ofthe view that, all such petitions should be decided by the Presiding Officerswithin a period of around three months, of course, by giving an opportunity, asper law, to the concerned Members against whom there are allegations, whichlead to their disqualification under the Tenth Schedule to the Constitution ofIndia, so as to effectively thwart the evil of political defections, which ifleft uncurbed are likely to undermine the very foundations of our democracy andthe principles which sustain it.  Theintention of the lawmakers to vest the adjudicatory power with respect todisqualification petitions with the Presiding Officers to ensure their fair andexpeditious disposal is also clearly evident from the following statement ofthe then Law Minister, while piloting the Constitution (52ndAmendment) Bill, 1985 in the Lok Sabha, on the 30th of January,1985:–

" If this Bill is to be effective, and if defection isto be outlawed effectively, then we must choose a forum which will decide thematter fearlesslyand expeditiously.  This is the onlyforum that is possible."

The then Prime Minister had also made a similar observation,while participating in the debate on the Bill in the Rajya Sabha on the 31stof January, 1985:––

" What we have tried to do in this Bill is to make itas black and white as possible so that there are no grey areas where somebodyhas to take a decision.  The decisionshould be automatic, backed by a sequence of events, which are on record, sothat there is no debate about it.  Wealso thought that the operation of the Bill should be quick so that there is notime for horse-trading to take place or any other problem to arise.  That is why we left this to the Chairman orthe Speaker."  

At this juncture, it would be worthwhile to mention thatsub-rule (3) of Rule 7 of the Rules, inter alia lays down that a Member,in relation to whom the Petition has been made, shall, within seven days ofthe receipt of copy of the petition, or within such further period as theChairman may for sufficient cause allow, forward his comments in writingthereon to the Chairman.  The very factthat only seven days time has been allowed in the Rules to the Respondent tofurnish his comments on a disqualification petition filed against him, isclearly indicative of the intent of the Rule for expeditious disposal ofdisqualification petition.    In thepresent case, the petition was filed on the 2nd of September, 2017and is being disposed of expeditiously vide my order of today, i.e.,the 4th of December, 2017.    

27.          Aftertaking into account the facts of the case, the comments of the Respondent andthe Petitioner, the Respondent's oral submission during the personal hearing onthe 8th of November, 2017 and the observations of the Committee ofPrivileges of the Eighth Lok Sabha and Hon'ble Supreme Court's Judgement in the1994 Ravi Naik Vs. Union of India case and observations insimilar anti-defection cases, it is crystal clear that by his conduct, actionsand speeches, the Respondent, Shri Sharad Yadav, has voluntarily given up hismembership of the political party, Janata Dal (United) by which  he was set up as a candidate for election tothe Rajya Sabha from the State of Bihar in 2016 and elected as such Member.

28.          I,therefore, hold that the Respondent, Shri Sharad Yadav has incurreddisqualification for being a Member of the House in terms of paragraph 2 (1)(a) of the Tenth Schedule to the Constitution of India.  He has thus ceased to be a Member of theRajya Sabha with immediate effect.  Idecide and declare accordingly.”

                                                                                                 

 

                                                                                                 Sd/-

NewDelhi,                                                                     (M. VENKAIAH NAIDU)

December4, 2017                                                       Chairman,Rajya Sabha”

 

Desh Deepak Verma
Secretary-General