Explained: Disqualification Of Sharad Yadav As Rajya Sabha Member [Read Notification]

On December 4, the Vice President, M.Venkaiah Naidu, in his capacity as the  Chairman, Rajya Sabha, disqualified the Janata Dal (U) Leader, Sharad Yadav, as a member of the Rajya Sabha, under the Anti-Defection Act.

Here are some questions and answers on the issue:

Q: So, is it the fastest decision by any Presiding Officer, under the Anti-Defection Act?

A: It appears so.  The Leader of the Janata Dal (U) in Rajya Sabha, Ram Chandra Prasad Singh, filed a petition before the Chairman of the Rajya Sabha on September 2, under Article 102(2) read with Paragraph 6 of the Tenth  Schedule to the Constitution and Rule 6 of the Members of the Rajya Sabha (Disqualification on Ground of Defection) Rules, 1985, praying for Yadav’s disqualification.  So, the Chairman has taken just around three months to decide the case, although Yadav sought more time to respond to the petition.

What was the ground which Ram Chandra Prasad Singh invoked in his petition?

Well, he said that Yadav was elected to the Rajya Sabha on the JD(U) ticket from Bihar on July 8, 2016.  He alleged that by his repeated conduct, public/press statements against the JD(U) and its leadership and openly aligning with a rival political party, namely, the Rashtriya Janata Dal, he has voluntarily given up the membership of the party.

He alleged that Yadav, instead of adhering to the unanimous decision taken on July 26, 2017 by the JD(U) and its President, Nitish Kumar, to withdraw from the Mahagathbandhan and the coalition Government formed in Bihar in 2015, started anti-party activities by publicly denouncing the party’s decision.

Another allegation is that Yadav campaigned with RJD leaders and workers between the 10^th and the 12^th of August, 2017 in different districts of Bihar and attended the public rally called by the rival political party, RJD, in Patna on August 27, despite written directive from K.C.Tyagi, Secretary-General of the party advising him not to attend the rally.  Tyagi had warned Yadav that  his participation in the rally would be construed not only against the principles of 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.

Did the Rajya Sabha Chairman follow the principle of natural justice by giving Yadav an opportunity to effectively defend himself?

Well, it is debatable.  Yadav, vide letters dated 15^th and 18^th September, sought extension of one month time for furnishing his comments on the petition.  However, the Chairman granted him extension of time only till September 25, for furnishing his comments.   Yadav furnished his comments on September 22.

He also sought permission to argue his case through his lawyers.  He suggested the names of Kapil Sibal, and Devdutt Kamat to be his advocates, besides four more advocates.

The Chairman, relying on precedents, declined the request.

What was Yadav’s defence to the allegations that he defected?

Yadav stated that he, being a founding member of the JD(U) has remained committed to its principles and continues to be a member of the party and has never intended to give up, least of all, voluntarily give up the membership of the party or form a new political party.

Yadav also contended that the question of ‘voluntarily giving up membership of the party’ could be determined only after decision on the question as to which is the ‘real party’.  Since his faction’s application, under Paragraph 15 of the Election Symbols (Reservaton and Allotment) Order, 1968, requesting for recognition as the real 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 the petition might be taken only after final decision by the ECI.

Interestingly, Yadav also alleged that it was Nitish Kumar and his faction, who have voluntarily given up the membership of the JD(U) by withdrawing from the Mahagathbandhan, which was formed as a common front against the Bharatiya Janata Party (BJP), and subsequently aligning with the BJP, thus blatantly betraying the trust reposed by the people of Bihar and their mandate.

Yadav’s main contention was that criticism of the decision of party leaders, taken in violation of the constitution of the party, does not entail voluntarily giving up the membership of the party, under the Tenth Schedule.

Yadav also questioned the use of newspaper articles and media clippings in the absence of any corroborative material.  He also annexed similar clippings and videos in support of his allegations against Nitish Kumar.

Why did the Chairman not consider reference of the petition to the Committee of Privileges?

Well, the Chairman observed that this would entail a longer time frame for conduct of preliminary inquiry and preparation and submission of final report, ultimately causing delay, which he claimed, is against the very grain and object of the Tenth Schedule. He also justified it saying allowing a member to continue his membership without facing the consequences of defection   tantamounts to subverting the essence of anti-defection law.

For this, he relied on the Supreme Court’s judgment in Jagjit Singh v State of Haryana, in which the Court held as follows:

“Despite defection a member cannot be permitted to get away with it without facing the consequences of such defection only because of mere technicalities.”

He, therefore, concluded that it is not mandatory to refer each and every case to the Committee of Privileges, as a matter of routine. He suggested that when the facts of the case are clear, the Chairman, in his wisdom may decide to proceed in the matter on his own.

So, as required under the rules, Yadav’s comments were forwarded to the petitioner, right?  What were the petitioner’s replies to Yadav’s comments?

Well, the petitioner claimed that the existence of a dispute within the party is neither relevant nor germane to the determination of a disqualification petition, but it is the conduct of the individual that needs to be examined.

He also contended that the onus of disproving the news clippings and videos was on Yadav, and his failure to deny or refute amounted to his acceptance of the same.

He explained that Nitish Kumar withdrew from the Mahagathbandhan, and resigned as the Chief Minister, on July 26, in accordance with the decision of the Extended State Executive of JD(U) Bihar, including MLAs, MLCs, MPs, all District Presidents, and all Presidents of various units/wings/cells of the party in its meeting held on July 11.  The decisions were approved unanimously by the Legislature party on July 26 and by the JD(U)’s National Council and National Executive on August 19, the petitioner claimed.  He said that Yadav was absent in the party’s National Council and National Executive meetings.  Instead, he held a parallel meeting, which was attended mainly by RJD workers, he claimed.

The petitioner also made an interesting point that even if Yadav was correct that leaving Mahagathbandhan was against the interests of the party, because he was a founding member of the party, “that did not confer any special rights on him to take his own decisions, which were contrary to the unanimous views and decisions of the party”.

Did the Chairman offer the opportunity of oral hearing to Yadav?

Yes, he did, and fixed 9.30 A.M. on October 30 for the purpose in his room in Parliament House Annexe Extension Building.  On October 23, Yadav sought extension of eight weeks time for appearing for the oral hearing, citing his election campaign in Gujarat and Himachal Pradesh.  But the Chairman granted him extension of only one week, and rescheduled the date for oral hearing as November 8, at 10 A.M. and informed him that no further extension would be granted.

Thereupon Yadav requested the Chairman to allow him to appear for the oral hearing accompanied by two advocates, Kapil Sibal and Devadatt Kamat.  On November 7, he requested inclusion of four more advocates in his team.

But the Chairman said there was neither any provision in the Rules for the purpose, nor any precedents in the Rajya Sabha.   Responding to another application from Yadav, the Chairman said internal party matters, raised by him, are not subject matters of the Tenth Schedule.

So, did the oral hearing take place?

Yadav did appear before the Chairman on November 8, and again insisted on allowing his advocates, to argue his case, so that the principles of natural justice are not violated.  He also cited a number of instances wherein arguments have been addressed by advocates under the Tenth Schedule.  He also informed the Chairman to proceed with the hearing in his absence, if he disagreed.

The Chairman relied on the decision of his predecessor in the case of Isam Singh (2008), to decline the request to allow advocates to argue Yadav’s case.

So, what was the Chairman’s decision?

The Chairman held in his order that the Tenth Schedule does not take cognizance of any political alliance made by political parties.  Therefore, leaving or joining of any political alliance by political parties does not fall within the Schedule.

He also held that Yadav failed to prove with documentary or other evidence that his group commands majority support within the JD(U) Legislature Party in Rajya Sabha.  He also held that Yadav blatantly violated the party directive not to attend the RJD’s rally on August 27.  He also stated that Yadav’s anti-party activities stood proved by his support to the application filed before the ECI against Nitish Kumar, and to the resolutions adopted by his supporters declaring Nitish Kumar’s decisions as illegal.  The Chairman also referred to Yadav’s criticism of Nitish Kumar’s decision to withdraw from the Mahagathbandhan, and his alliance with the BJP, and publicly aligning with the rival RJD as evidence to show that he no longer supported the policies and decisions of the party, on whose ticket he was elected.

According to the Chairman, public criticism of the party amounts to giving up the membership of the party voluntarily. As per his decision, a Member gets elected as a candidate of a political party because of the policies and manifestos of the party and if the Member criticizes his party publicly, he will be deemed to have given up his membership of the political party voluntarily.

This is a debatable view, because a member may believe that the party leadership is going against the policies and manifestos of the party on the basis of which he got elected  as a candidate, and if he is unable to express his dissent within the party forums, he may feel that public criticism could help to persuade other Members in the party to see reason.

What does the law say in this regard?

Paragraph 2(1)(a) of the Tenth Schedule states that a member of a House belonging to a political party shall be disqualified for being a Member of the House, if he has voluntarily given up his membership of such political party.   Interpreting the case law on the subject, the Chairman held that his role is to ascertain the facts, and once the facts are gathered or placed to show some action, express or implied, within the meaning of paragraph 2(1)(a) of the Tenth Schedule, to take a decision in the matter.  Thus he held that Yadav did not deny the truth of the newspaper reports, video recordings etc, which showed that he had hobnobbed with the RJD functionaries, and publicly criticized the party’s decision to break with Mahagathbandhan.

The Supreme Court’s judgment in Ravi Naik and subsequent cases in which it held that the term ‘voluntarily giving up the membership of the party’ could be inferred from a member’s conduct, in the absence of formal resignation from the party, has been relied upon by the Chairman.   But the facts of Ravi Naik case were different.   Two members of the ruling party had informed the Governor that they did not support the ruling party any further, and they also made it known to the public that they had voluntarily resigned from the membership of that party.  Therefore, a presumption was drawn from their conduct that they had voluntarily resigned from the membership.

Ravi Naik or subsequent cases do not distinguish between criticism of the leadership within the party forum and public criticism of the leadership, making the latter conduct vulnerable to the drawing of inference of voluntarily giving up the party membership.

In Balchandra L.Jarkiholi v B.S.Yeddiyurappa, decided by the Supreme Court on May 13, 2011, it was held that demand by a party legislator for a change in the leadership, does not amount to voluntarily giving up the membership of the party.

Therefore, there is enough ground to challenge the Chairman’s decision to disqualify Yadav in the court.  And Yadav has already announced that he would legally challenge it.

What are the other factors considered by the Chairman?

The Election Commission’s order dated November 17, in which it rejected Yadav’s contention that his group led by Chhotubhai Amarsang Vasava is the real JD(U) was a relevant factor considered by the Chairman.   Curiously, however, the Chairman found Yadav’s plea for postponing the consideration of the petition against him because his petition for recognition of his group as the real party was pending with the E.C. was rejected by him, because it was irrelevant.    This only vindicates Yadav’s plea for postponing a decision because of the pending matter with the E.C. in retrospect.