Sharad Yadav’s Legal Legacy

Of these, Yadav had raised interesting legal questions with regard to his disqualification, which remained unanswered by the Delhi High Court which disposed his writ petition as infructuous on December 14, as his term as Rajya Sabha Member would, in any case, have come to an end on July 7 last year, had there been no disqualification.

Yadav was disqualified from the Rajya Sabha on December 4, 2017 under Paragraph 2(1)(a) of the Tenth Schedule to the Constitution of India.

In his writ petition before the Delhi High Court, he impugned the order dated 04.12.2017 (hereafter ‘the impugned order’) passed by the then Chairman, Rajya Sabha, M.Venkaiah Naidu, disqualifying him.

Yadav, through his senior counsel, Kapil Sibal, assailed the impugned order on several fronts. First, he contended that the procedure adopted by the Chairman was in violation of the principles of natural justice. He submitted that he was denied a full representation through counsel and thus was effectively denied a fair opportunity of being heard. He submitted that there were well established precedents that in matters of disqualification under the Tenth Schedule to the Constitution of India, advocates had been permitted to represent the members sought to be disqualified from Lok Sabha and various State Legislative Assemblies.

Second, he submitted that the impugned order had been passed mainly on the basis of newspaper reports and video clippings; none of which were supported by affidavits or corroborated by any other evidence. Yadav also pointed out that the Chairman had proceeded on the basis that none of the reports had been denied. Apart from being factually incorrect, the approach was also contrary to law, he contended.

Third, Yadav submitted that the impugned order was premised on the basis that he had criticised the leadership of the party in question. He submitted that criticism of leadership cannot be equated to voluntarily giving up membership of the political party. He submitted that he had a right to criticise the leadership and such right could not be fettered.

Lastly, Yadav submitted that the decision of the Election Commission of India passed under paragraph 15 of the Symbols (Reservation and Allotment) Order, 1968 could not be relied upon as the same was only limited to the context of allotment of the election symbol and was also the subject matter of challenge in a writ petition pending before the Delhi High Court.

The High Court while finding some of the submissions made by Yadav prima facie merited, also noted that he had taken an unequivocal stand by supporting a petition that the party then under the leadership of Nitish Kumar was not the ‘original party’ and this contention was rejected by the Election Commission of India.

The High Court’s Single Judge, Justice Vibhu Bakhru thus inferred that this did appear to indicate that Yadav was not claiming membership of that party. In this view, the Court said it was not inclined to interfere with the impugned order at that stage even while permitting Yadav to draw all allowances and prerequisites including retaining the residential accommodation as a Member of the Rajya Sabha, till further orders.

Merits of Yadav’s petition

Yadav contended that the criticism of the decision of party leaders, taken in violation of the constitution of the party, did not entail voluntarily giving up the party membership. In his petition seeking Yadav’s disqualification before the Rajya Sabha Chairman, the then Janata Dal (U) leader in the Rajya Sabha, Ram Chandra Prasad Singh questioned Yadav’s right to question the unanimous views and decisions of the party.

Yadav had alleged that Nitish Kumar and his faction had voluntarily given up the membership of the JD(U) by withdrawing from the Mahagathbandhan, which was formed as a common front against the BJP, and subsequently aligned themselves with the BJP. Betraying the trust reposed by Bihar’s electorate, and their so-called mandate were cited grounds for inferring that the official group had violated the Tenth Schedule to the Constitution.

In response to the notice served on him by the Rajya Sabha Chairman on the disqualification petition, Yadav requested permission to be represented by two advocates of his choice at the oral hearing, as the issues under the Tenth Schedule were too complex for him to argue himself. His request, however, was declined citing the absence of rules and precedents. Yadav, who appeared in person before the then Chairman, Venkaiah Naidu on November 8, 2017, contended that there was no bar in Rule 7 (7) of the Members of the Rajya Sabha (Disqualification on Ground of Defection) Rules, 1985, against a member appearing before the Chairman through an advocate.

Naidu, however, responded to Yadav that he could have come prepared for the oral hearing after consulting his advocates. Naidu had ignored the Supreme Court’s ruling in Balchandra L.Jarkiholi vs B.S.Yeddiyurappa (2011) to the effect that the demand by a party legislator for a change in the leadership did not amount to voluntarily giving up the membership of the party. Instead, Naidu had cited the Supreme Court’s judgment in Ravi Naik vs Union of India (1994), in which the legislator who joined another political party or launched a new one incurred disqualification under Paragraph 2(1)(a) of the Tenth schedule.

Yadav had a fair chance of succeeding in his petition before the Delhi High Court, had it been heard and decided expeditiously.

Accommodation case

While his writ petition challenging his disqualification was pending before the Delhi High Court, the Union Ministry of Housing and Urban Affairs filed an application in March last year before the High Court to vacate the stay order issued by the court on December 15, 2017 permitting Yadav to continue to draw all allowances and prerequisites including retaining his official accommodation till further orders. The Ministry claimed that as the accommodation had been allotted to a Union Minister, the stay order came in the way of it actually being handed over to the new allottee.

The High Court took note of the fact that Yadav had assured the Supreme Court in the meantime that he would not withdraw the perks and perquisites as Member of Parliament till the High Court decided the disqualification matter, but on the question of retaining his official accommodation, there was no similar promise by Yadav. On March 15, the Delhi High Court held that these are the perks that are attached to the office and are not personally conferred upon any person that dehors the office.

Since Yadav stood disqualified and was not required to discharge any responsibility or function as a Member of Rajya Sabha, there could be no justification for him to retain the official accommodation, the High Court’s Division Bench held and vacated the stay order issued by the Single Judge on December 15, 2017. His appeal to the Supreme Court was also dismissed on March 31 last year, giving him time till May 31 to vacate the official bungalow allotted to him as a Member of Parliament, on humanitarian grounds.

Yadav’s term as a Member of Parliament, if the High Court had found his disqualification as unconstitutional, would have come to an end on July 7 last year. Meanwhile, with the Bihar Chief Minister, Nitish Kumar of the Janata Dal (U) breaking his alliance with the BJP, the Respondent No.1 in this case, Ram Chandra Prasad Singh, the leader of the JD(U) in the Rajya Sabha, whose petition to the then Rajya Sabha Chairman, Venkaiah Naidu, had set in motion the disqualification proceedings against Yadav, and Yadav told the High Court that they no longer wished to take antagonistic positions or press their claims against each other “on account of changes in the political alignment”.

The High Court, taking note of the prayer that as Yadav’s term in the Rajya Sabha was already over, no specific order in this regard was called for, and disposed of his petition on December 14.