Parliamentary Bulletin Part II
No. 57067 Monday, December 04, 2017 42
Decision of the Chairman, Rajya Sabha on the Petition filed by Shri Ram Chandra Prasad Singh, Member against Shri Ali Anwar Ansari, 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 RamChandra Prasad Singh, Member and Leader of the Janata Dal (United) [JD(U)] inRajya Sabha (hereinafter called 'the Petitioner'), filed a petitionbefore me on the 2nd of September, 2017, under Article 102 (2) readwith paragraph 6 of the Tenth Schedule to the Constitution of India and Rule 6of the Members of the Rajya Sabha (Disqualification on Ground of Defection)Rules, 1985 (hereinafter called 'the Rules') praying that Shri Ali AnwarAnsari, Member, Rajya Sabha (hereinafter called 'the Respondent'), bedisqualified under the Tenth Schedule to the Constitution and his seat bedeclared vacant in the Rajya Sabha.  Inhis petition, the Petitioner averred that the Respondent, Shri Ali AnwarAnsari, who was elected to the Rajya Sabha on the ticket of Janata Dal (United)from the State of Bihar, for the term 2006 to 2012, and again on the 3rdof April, 2012, for the term 2012 to 2018, with the support of the BharatiyaJanata Party (BJP), had by his repeated conduct, public/press statementsagainst the JD(U) and its leadership and openly aligning with a rival politicalparty, namely, the Rashtriya Janata Dal (RJD), proved that he hasvoluntarily given up the membership of the party, thus becoming subject todisqualification under the Tenth Schedule to the Constitution.  The main contention of the Petitioner is thatthe Respondent instead of adhering to the unanimous decision taken on the 26thof July, 2017 by the JD(U) and its President, Shri Nitish Kumar to withdrawfrom the Mahagathbandhan and the coalition Government formed in Bihar in2015, started anti-party activities along with Shri Sharad Yadav, anotherdisgruntled Member, by publicly denouncing the party's decision.  He campaigned with RJD leaders and workersand attended the public rally called by the rival political party, i.e.,RJD, in Patna on the 27th of August, 2017, despite being aware thathis participation in the rally would be construed as not only against theprinciples of high morality but also as voluntarily giving up the membership ofthe JD(U).  The Petitioner had annexednewspaper clippings, media reports and videos as proof of the allegations.

2.             Having satisfied myself that the Petition complies withthe requirements 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 Petitionalong with all Annexures thereto to be forwarded to the Respondent, in relationto whom 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 the22nd of September, 2017, wherein he contested all the avermentsmade, arguments advanced and contentions raised in the Petition and soughtdismissal of the Petition, under sub-rule (2) of Rule 7 of the Rules, on groundof non-compliance with the requirements of Rule 6.  The Respondent stated that he remainscommitted to the party principles and continues to be a member of the JD(U) andhas no intention of leaving the party or joining another political party orforming a new political party, least of all any intention of voluntarily givingup the membership of the party.  Hecontended that the question of 'voluntarily giving up membership of the party'can be determined only after decision of the question as to which the 'realparty' is and since the question is pending before the Election Commission ofIndia (ECI), a decision on the Petition may be taken only after final decisionby the ECI.  He counter-alleged that itis Shri Nitish Kumar and his faction, who have voluntarily given up themembership of the JD(U) by withdrawing from the Mahagathbandhan, whichwas formed as a common front against the BJP, and subsequently aligning withthe BJP, thus blatantly betraying the trust reposed by the people of Bihar andtheir mandate.  He alleged that ShriNitish Kumar has split from the real JD(U) due to pure political and opportunisticreasons, 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 the party'.  The Respondent demanded that the avermentthat the Petitioner is competent and duly authorized to file the presentPetition requires to be strictly proved, since the Petitioner had beenappointed to the post of Leader of the Legislature Party of the JD(U) in RajyaSabha, without following party norms and after illegally removing Shri SharadYadav from the said post in an illegal, arbitrary and capricious manner.  He also questioned the use of newspaperarticles/media clippings by the Petitioner as evidence and stated that theycannot be relied upon in the absence of any corroborative material.  He had also annexed newspaper clippings andmedia reports in the form of videos in support of his allegations against ShriNitish 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 SupremeCourt in its Order, dated the 11th of December, 2006, in JagjitSingh Vs. State of Haryana & Ors [(2006) 11 SCC 1], had observedas follows:––

" Despite defection a membercannot be permitted to get away with it without facing the consequences of suchdefection only because of mere technicalities."

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 formaking a preliminary inquiry and submitting a report to him."

From aperusal of this, it is very clear that it is not mandatory to refer each andevery case to the Committee of Privileges, as a matter of routine.  Depending upon the nature and circumstancesof the case, the Chairman may or may not refer the petition to the Committeefor making a preliminary inquiry.  Whenthe facts of the case are clear, the Chairman in his wisdom may decide toproceed in the matter on his own. Attention is also drawn to the use of the word 'preliminary inquiry' insub-rule (4) of Rule 7, which means that even after preliminary inquiry by theCommittee, it is for the Chairman to finally analyze the facts and come to afinal conclusion.  Keeping in view thesefacts, I decided to proceed with the determination of the question ofdisqualification of the Respondent myself. Therefore, in the interest of justice, I directed, on the 7thof October, 2017, to forward the comments of the Respondent to the Petitioner,for his comments thereon, within seven (7) days of receipt of the same. 

 

5.             The Petitioner, in his commentsdated the 13th of October, 2017, reiterated the facts already statedin his petition and submitted that the comments of the Respondent were more inthe form of an ideological speech and have failed to answer the specificaverments made and refute the allegations made in a substantial manner.  He outrightly rejected the claim of theRespondent that a dispute with respect to the internal functioning of the partyis pending before the ECI and termed it as factually incorrect stating that theECI had refused to take cognizance of the petition filed in this regard.  The Petitioner stated that existence of adispute within the party is neither relevant nor germane to the determinationof a disqualification petition; but, it is the conduct of the individual thatneeds to be examined.  He contended thatthe onus of establishing the veracity of the contents of the newspaperarticles/media clippings as false lay with the Respondent and that failure todeny or refute amounts 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 the investigatingagencies; and further asking him to take necessary action, as he deemedfit.  This decision of Shri Nitish Kumarto withdraw from the Mahagathbandhan and resign as Chief Minister ofBihar was unanimously approved by the Legislature Party in its meeting held onthe 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 stand againstcorruption, formed the Government and was sworn in as Chief Minister on the 27thof July, 2017.  He also proved hismajority on the floor of the Legislative Assembly of Bihar on the 28thof July, 2017.  The Petitioner had heldthat Mahagathbandhan was merely a political alliance formed on a commonminimum programme to fight elections for the Legislative Assembly in Bihar andthere can never be any compulsion on the constituents of a coalition to remainwelded despite fundamental differences.  Healso dismissed the allegation of the Respondent regarding illegal removal ofShri Sharad Yadav from the post of Leader of the Legislature Party of JD(U) inRajya Sabha citing that the conduct of Shri Yadav led to his removal and thedecision was taken with the overwhelming majority of the Members of JD(U) inRajya Sabha.  The Petitioner reiteratedthat the defiance of the Respondent against the unanimous decision of theparty, his public criticism of the decision of the party and its President, andopen alignment with the rival political party, i.e., RJD, amounts tovoluntarily giving up the membership of the party.  He had further added that no political party especially the JD(U) with strongand deep rooted commitment against corruption in public life shall permit anyof its member to align with a political party, whose leaders are embroiled incorruption with serious charges of benami property dealings and moneylaundering. 

6.             With a view to afford a reasonable opportunity to theRespondent to represent his case and be heard in person, in terms of sub-rule(7) of Rule 7, I directed that a notice, along with a copy of the comments,dated the 13th of October, 2017, of the Petitioner on the reply ofthe Respondent, dated the 22nd of September, 2017, to the Petition,be issued to the Respondent informing him that an opportunity for oral hearingbefore me has been granted to him at 10.00 A.M. on the 30th ofOctober, 2017 in my room, i.e., Room No. 216, Second Floor, Block A,Parliament House Annexe Extension (PHA Extn.) Building, New Delhi.  This was conveyed to him, vide RajyaSabha Secretariat's letter dated the 18th of October, 2017. 

7.             The Respondent, vide letter dated the 23rdof October, 2017, sought extension of 8 weeks time for appearing for the oralhearing citing meetings/engagements relating to the forthcoming elections tothe Legislative Assemblies of the States of Gujarat and Himachal Pradesh.  Referring to paragraphs 24 and 27 of theResolution of the National Council of JD(U) dated the 8th ofOctober, 2017, he further questioned the authority of the Petitioner toinstitute the instant proceedings on behalf of the JD (U), pursuant to the saidResolution.  However, after consideringhis request, I granted him extension of one week and directed him to appear inperson before me to represent his case at 10.30 A.M. on the 8th ofNovember, 2017 in my room, i.e., Room No. 216, Second Floor, Block A,Parliament House Annexe Extension (PHA Extn.) Building, New Delhi and alsoinformed him that no further extension would be granted in this case. This wascommunicated to him, vide Rajya Sabha Secretariat's letter dated the 24thof October, 2017. 

8.             The Respondent appeared in person before me at 10.30A.M. on the 8th of November, 2017 for the oral hearing.  While reiterating the facts already submittedby him in his comments on the Petition, he stated that he had neither beenissued any directive in writing or through SMS or orally by the President ofthe JD(U) or any other office bearer or member of the party, directing him notto attend the meetings/rally of the opposition parties, nor had he been issuedany show cause notice by the party before initiating disciplinary actionagainst him.  He further stated that ShriSharad Yadav, who was the Leader of the JD(U) Legislature Party in Rajya Sabhaat that time and who was on tour in his constituency, had directed him toattend the meeting of the opposition parties, with which he had complied, afterwhich he was suspended from the party. Subsequently, he also attended the rally called by the RJD leader, ShriLalu Prasad Yadav, which was attended by leaders of all oppositionparties.  He contended that Shri NitishKumar himself had stated that he would attend the rally, if invited.  He alleged that the decision of Shri NitishKumar to resign as Chief Minister and withdraw from the Mahagathbandhanwas not taken in any party forum and, therefore, it is he and his supporters,who had left the party.  The Respondentfurther contended that he had not indulged in any anti-party activity withinthe House, under my jurisdiction.  Iinformed him that all these facts had already been stated by him in detail inhis reply and that I will examine them carefully before taking a finaldecision.  I also informed him that asChairman of the Rajya Sabha, my responsibility is to ascertain whether he hadacted against the decisions of his party by attending the rally of anotherparty and repeatedly criticized his party and whether by such actions he hasproved that he is not interested in remaining in the JD(U), as alleged in thepetition and asked him whether he had any further evidence to adduce inaddition to what he had already submitted. However, the Respondent submitted no further substantial facts in hisdefence.    

9.             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 themembership of the political party to which he/she belongs; or

(b)           when he/she votes or abstains fromvoting in the House, contrary to any direction issued by the political party towhich he/she belongs, without obtaining prior permission and such voting orabstention has not been condoned by such party, within 15 days from the date ofsuch 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. 

10.          I haveobserved from perusal of the records, i.e, the Petition and the commentsof the Respondent on the Petition along with all Annexures thereto, thecomments of the Petitioner on the said comments of the Respondent and the factspresented by the Respondent during the oral hearing, that the Respondent,instead of specifically denying or refuting the allegations of indulging inanti-party activities levelled against him by the Petitioner, was only tryingto establish that the decision of Shri Nitish Kumar to withdraw from the Mahagathbandhanand to align with the BJP has resulted in a split in the Janata Dal (United)into two factions - one headed by Shri Nitish Kumar and another comprising him,Shri Sharad Yadav and their supporters and that their faction commandedmajority support within the JD(U) and that a dispute in this regard was pendingbefore the ECI.  The main line ofargument adopted by him was that it was not him, but Shri Nitish Kumar and hisfaction, who had voluntarily given up the membership of the JD(U), by violatingthe aims and objects laid down in the party constitution and acting against theprinciples on which the party was founded, thereby becoming subject todisqualification under the Tenth Schedule. However, he has failed to produce any clinching documentary or otherevidence to substantiate his claim. Further, paragraph 1 of the Tenth Schedule to the Constitution, definesthe 'Legislature Party' and the 'Original Political Party' as follows:––

"Interpretation.  1.     XXXXXXX

(b)              "legislatureparty", in relation to a member of a House belonging to any politicalparty in accordance with the provisions of paragraph 2 or [xxx] paragraph 4,means the group consisting of all the members of that House for the time beingbelonging to that political party in accordance with the provisions;

(c)  "original political party", in relation to a member of aHouse, means the political party to which he belongs for the purposes ofsub-paragraph (1) of paragraph 2."

It does not take cognizance of any political alliancemade by political parties.  The Mahagathbandhanwas a political alliance of some political parties formed for the purpose ofcontesting the 2015 Legislative Assembly elections in Bihar and JD(U) was oneof its constituents. As such, leaving or joining of any political alliance bypolitical parties does not fall within the purview of the anti-defectionLaw.  

11.          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, ECI had rejected the claim of the group supported by the Respondenttwice, citing lack of documentary evidence in support thereof.  The Respondent has questioned the competenceand authority of the Petitioner to file the present Petition and the allegedillegal removal of Shri Sharad Yadav from the post of Leader of the LegislatureParty of the JD(U) in Rajya Sabha, without following party norms.  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 andevidence placed before me by each side, on which they have based theirclaim.  In the instant case, theRespondent has failed to prove with documentary or other evidence that hisgroup commands majority support within the JD(U) Legislature Party in RajyaSabha.  On the contrary, the Petitioner,Shri Ram Chandra Prasad Singh was unanimously elected to the post of the Leaderof the JD(U) Legislature party in Rajya Sabha, in the meeting of theirparliamentary party held in New Delhi, on the 11th of August, 2017,and this was intimated to the Rajya Sabha Secretariat by Shri KaushalendraKumar, Member, Lok Sabha and Leader of the JD(U) in Parliament.  This was taken cognizance of by the RajyaSabha Secretariat and the records of the Rajya Sabha were updatedaccordingly.  The claim of the Respondentthat the Petitioner does not have the locus to file the Petition, isalso not tenable, since the Petitioner, Shri Ram Chandra Prasad Singh is aMember of the Rajya Sabha and as per the Rules, any Member of the Rajya Sabhacan file a petition seeking disqualification of any other Member.

12.          TheRespondent's public denouncement of Shri Nitish Kumar's decision to withdrawfrom the Mahagathbandhan and align with the BJP and publicly aligningwith the rival party of JD(U), namely, RJD, and supporting their leadersand policies, sharing of dias and attending their meetings/rally, all of whichare enough to establish beyond doubt that he has indulged in anti-partyactivities.  His unstinting support ofthe speeches of Shri Sharad Yadav on public platforms and his anti-partyactivities, such as, supporting the application filed before the ECI againstShri Nitish Kumar, President of the JD(U) and the Resolutions moved and adoptedin a meeting of members of the JD(U), declaring the decisions of Shri NitishKumar as illegal, invalid and void, none of which he has either denied orrefuted, also testify to the fact that he no longer supports the policies anddecisions 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 an opportunity was available to him, namely,meeting of the Extended State Executive of JD(U)Bihar on the 11th of July, 2017, went ahead with hiscriticism of the party policies and decisions of his party President in mediaas well as on public platforms, including meetings/rally of the rival politicalparty.  The Respondent has held thatcriticism of the decision of party leaders, taken in violation of theconstitution of the party, does not entail voluntarily giving up of themembership of the party. Here, I would like to mention that a political party, which is anessential part of the democratic set up, works through collectivedecisions.  Though one might havedifferences with the decision of the party, he is ultimately to follow thecollective decision of the party.  He hasevery right to air his views in the meetings and forums of the party before adecision 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 that political partyvoluntarily.  

13.          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' are not synonymous with'resignation' and have a wider connotation. A person may voluntarily give up his membership of a political partyeven though he has not tendered his resignation from the membership of thatparty.  Even in the absence of a formalresignation from the membership an inference can be drawn from the conduct of amember that he has voluntarily given up his membership of the political partyto which he belongs."

In the same case, the Supreme Court had upheld the decisionof the Speaker of the Goa Legislative Assembly disqualifying two MLAs, who wereelected on the ticket of the Maharashtrawadi Gomantak Party (MGP), on theconduct alone of their accompanying the Leader of the Congress (I) LegislatureParty in Goa, when he met the Governor to show that he had the support oftwenty MLAs.  

14.          The Supreme Court in its decision,dated the 24th of January, 1996, in G. Viswanathan Vs. The Hon'ble Speaker, Tamil Nadu LegislativeAssembly, 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 the political party may beeither express or implied."

15.          Prior tothe above-said observations of the Supreme Court in the Ravi Naik case,the Committee of Privileges (Eighth Lok Sabha) had also pondered over themeaning of the term 'voluntarily giving up membership' and made the followingobservations:––

 

" 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 convincedthat it was with a view to obviating such situations that the words'voluntarily given up' were used in paragraph 2(1)(a).  As the law does not define the precise mannerin which the membership is to be given up, the words have to be interpretedaccording to the spirit in which they have been used in the Act.  The intention of the law-makers is quiteclear: that it is not only by the overt act of tendering his resignation butalso by his conduct that a member may give up the membership of his politicalparty.  The Committee are of the viewthat if a member by his conduct makes it manifestly clear that he is not boundby the party discipline and is prepared even to wreck it by his conduct, heshould be prepared to pay the price of losing his seat and seekingre-election."    

16.          In anotherdecision, dated the 27th of October, 2004, in                         Dr. MahachandraPrasad Singh Vs. Chairman, Bihar Legislative Council & Ors. [(2004) 8 SCC747], the Supreme Court had observed, as follows:––

" Therefore, the final authority to take a decision onthe question of disqualification of a member of the House vests with theChairman or the Speaker of the House. It is to be noted that the Tenth Scheduledoes not confer any discretion on the Chairman or Speaker of the House. Theirrole is only in the domain of ascertaining the relevant facts. Once the factsgathered or placed show that a member of the House has done any such act whichcomes within the purview of sub-paragraph (1), (2) or (3) of paragraph 2 of theTenth Schedule, the disqualification will apply and the Chairman or the Speakerof the House will have to make a decision to that effect”.

17.          In view ofsuch authoritative pronouncements by the Hon’ble Supreme Court, while decidingthe petition in which the allegation is of the violation of the paragraph 2 (1)(a) of the Tenth Schedule, the role of the Chairman, as the designatedauthority, is only in the domain of ascertaining the facts and once the factsare gathered or placed to show some action, express or implied, within themeaning of paragraph 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 SCC747], where it had 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."

Assuch, it now remains for me to decide, whether expressly or by implication, theRespondent has voluntarily given up the membership of his political party, namely,the JD (U).  From the actions andstatements of the Respondent based on the material/evidence presented beforeme, it can be inferred that he has voluntarily given up his membership ofJD(U), on whose ticket he was elected to the Rajya Sabha.       

18.          ThePetitioner had relied mainly on newspaper clippings and video recordings whichappeared on various TV channels as proof of the anti-party activities of theRespondent and his 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 Petitioner citingthat newspaper articles cannot be relied upon as evidence in the absence of anycorroborative material.  In my view, thenewspaper reports alone cannot be taken as substantive evidence, and at bestcan be taken as providing reliable circumstantial evidence, unless provedotherwise. It has inter alia been observed by the Hon’ble Supreme Courtin Samant N. Balakrishna etc. Vs. George Fernandez and Ors. etc.[1969 AIR 1201, 1969 SCR (3) 603, 1969 SCC (3) 238], as follows:––

" 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 that regard.  In this case, many leading national andregional/state newspapers and media channels did in fact report about theRespondent campaigning with RJD leaders and workers and his attending thepublic rally called by RJD on the 27th of August, 2017, as well ashis criticism of Shri Nitish Kumar's decision. From the video recordings and newspaper clippings/ articles provided bythe Petitioner, I have found that the Respondent had on numerous occasions,particularly in media bytes/interviews to various media channels, criticizedthe decision of Shri Nitish Kumar to withdraw from the Mahagathbandhan andform the Government in alliance with BJP stating that his conscience would notallow him to support the said decision and had affirmed that he would beattending the rally called by RJD in Patna on 27th of August,2017.  I have also found him speaking insupport of the Mahagathbandhan and criticizing the decision of ShriNitish Kumar in some public meetings. The video recordings thus provide ample and irrefutable proof that theRespondent had indeed attended the said rally and made statements openlycriticizing the decision of his party and its President.  Further, the Respondent instead ofcategorically denying or refuting the allegations appearing in the newspaperclippings/media reports, has himself admitted that he had attended the rallyorganized by the rival political party, i.e, RJD.  Therefore, there is no reason to presume thatthe video recordings are doctored, more so, since the Respondent himself hasnot 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.

19.          Incidentally, it has also come to mynotice that the primary argument of the Respondent that the group led byShri Chhotubhai Amarsang Vasava, Acting President, to which he and hissupporters belong, is the real JD(U) has been outrightly rejected by theElection Commission of India, vide Orders dated the 17th ofNovember, 2017, which inter alia reads, as follows:–––

" (i)         Having considered the submissions, bothwritten and oral, and the documents submitted in support of their respectiveclaims by the two groups, the Commission holds that the principle of test ofmajority support in the organisational and legislative wings as upheld by theHon'ble Supreme Court in Sadiq Ali Vs. Election Commission of lndia &Others (AlR 1972 SC 187), and consistently applied by the Commission in allsuch cases in the past, would apply in the instant case in the facts andcircumstances 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.Nitish Kumar is hereby recognised as the Janata Dal (United) in terms ofParagraph-15 of the Symbols Order. Consequently, the group led by Sh. NitishKumar is entitled to use the reserved symbol 'Arrow' of the Party as arecognised State Party in Bihar."

The above-said ordersof the ECI have laid to rest the pending dispute over the leadership of theJD(U) and the group which constitutes the real party.  Subsequently, the ECI has passed a detailedorder in this regard dated the 25th of November, 2017. 

20.          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, which leadto 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 to disqualificationpetitions with the Presiding Officers to ensure their fair and expeditiousdisposal is also clearly evident from the following statement of the then LawMinister, while piloting the Constitution (52nd Amendment) 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                        31st ofJanuary, 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 beworthwhile to mention that sub-rule (3) of Rule 7 of the Rules, inter alialays down that a Member, in relation to whom the Petition has been made, shall,within seven days of the receipt of copy of the petition, or within suchfurther period as the Chairman may for sufficient cause allow, forward hiscomments in writing thereon to the Chairman. The very fact that only seven days time has been allowed in the Rules tothe Respondent to furnish his comments on a disqualification petition filedagainst him, is clearly indicative of the intent of the Rule for expeditiousdisposal of disqualification petition. In the present case, the petition wasfiled on the 2nd of September, 2017 and is being disposed ofexpeditiously vide my order of today, i.e., the 4th ofDecember, 2017.    

21.          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 Ali Anwar Ansari, has voluntarily given uphis membership 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 2012 and elected as such Member.

22.          I,therefore, hold that the Respondent, Shri Ali Anwar Ansari 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