RAM CHANDRA PRASAD SINGH versus SHARAD YADAV on 19 March 2020

Conclusion

1. This appeal has been filed against the Interlocutory Order dated11.09.2018 passed by the Delhi High Court in C.M. Application No.27159 of 2018 filed by the appellant in Writ Petition No. 11102 of 2017.BBy the said application, the appellant sought permission to submitadditional documents and place material on record which has beenrejected by the High Court.

2. Brief facts of the case giving rise to this appeal are: -

C2.1 The respondent No.1 was elected as Member of Parliament(Rajya Sabha) from Bihar on a Janata Dal (United)[JD(U)] ticket fora term beginning from 08.07.2016 for a period of six years. Theappellant, a Member of Parliament (Rajya Sabha) and leader of JD(U)in Rajya Sabha filed a petition before the Chairman, Rajya Sabha onD02.09.2017 under Article 102(2) read with paragraph 6 of the TenthSchedule of the Constitution of India praying that the respondent No.1,Member of Rajya Sabha be disqualified under the Tenth Schedule ofthe Constitution of India and his seat be declared vacant in Rajya Sabha.The appellant in his petition has averred that respondent No.1, who waselected to the Rajya Sabha on the ticket of Janata Dal (United) fromEthe State of Bihar had by his repeated conduct, public/press statementsagainst the JD(U) and its leadership and openly aligning with the rivalpolitical party, Rashtriya Janata Dal (RJD), has voluntarily given up hismembership, thus, acquiring disqualification under the Tenth Scheduleto the Constitution.F

2.2 The Chairman, Rajya Sabha got a copy of the petition filedby the appellant forwarded to the respondent, who was requested tofurnish his comments thereon. The respondent after seeking extensionof time filed his comments. The Chairman, Rajya Sabha after followingthe due procedure and after giving opportunity of oral hearing to theGrespondent No.1 passed an order on 04.12.2017 disqualifying therespondent as a member of the House in terms of paragraph 2(1)(a)of the Tenth Schedule of the Constitution.

2.3 Against the order dated 04.12.2017 passed by the Chairmanof the Rajya Sabha, respondent filed a Writ Petition No. 11102 of 2017Hin Delhi High Court.

2.4 In paragraphs 27 and 28, the Chairman, Rajya Sabha hasobserved: - “27. After taking into account the facts of the case, the commentsof the respondent and the petitioner, the respondent’s oralsubmission during the personal hearing on the 8[th] of November,2017 and the observations of the Committee of Privileges of theEighth Lok Sabha and Hon’ble Supreme court’s Judgment in the1994 Ravi Naik Vs. Union of India case and observations insimilar anti-defection cases, it is crystal clear that by his conduct,actions and speeches, the respondent, Shri Sharad Yadav, hasvoluntarily given up his membership of the political party, JanataDal (United) by which he was set up as a candidate for electionto the Rajya Sabha from the State of Bihar in 2016 and electedas such member.

28. I, therefore, hold that the Respondent Shri Sharad Yadav hasincurred disqualification for being a Member of the House interms of paragraph 2(1)(a) of the Tenth Schedule to theConstitution of India. He has thus ceased to be a Member ofthe Rajya Sabha with immediate effect. I decide and declareaccordingly.”

2.5 The appellant, who was respondent in the writ petition filedC.M. Application No. 27159 of 2018 dated 07.07.2018 praying forseeking permission to place additional documents Annexure 1 andAnnexure 2 filed along with the application to be taken on record.

2.6 An affidavit in reply to the above application was filed bythe petitioner. In his affidavit, the writ petitioner denied avermentsmade in the application. In paragraph 2 of the affidavit, following wasstated: -

“2. That I have gone through the contents of the application filedby the respondent No.1 seeking permission to place additionalmaterial on record to demonstrate some purported postdisqualification conduct of the petitioner. I wish to deny each andevery averment made therein and the contents of the saidapplication may be deemed to be specifically traversed and deniedby me unless expressly admitted by me hereinafter.”

2.7 In the affidavit, the petitioner has denied that he has formedany new political party. He had further averred that he has been A

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Awrongly disqualified. It was pleaded that High Court is not concernedwith the subsequent event which do not form subject matter of the writpetition. The application filed by the appellant was opposed by the writpetitioner. The High Court vide its impugned judgment dated11.09.2018dismissed the application. After noticing the averments made in theapplication of the appellant and the reply given by the writ petitioner,BHigh Court gave its reason for rejecting the application in paragraph 4,which is to the following effect:- “4. The scope of the present petition is limited to examining thelegality and the validity of the order dated 04.12.2017 passed bythe Chairperson, Rajya Sabha, disqualifying the petitioner fromCbeing a member of the Rajya Sabha. Any event subsequent tothe passing of the said order, cannot be a consideration for thisCourt to test the legality of the said order.”

2.8 The appellant aggrieved by the above order rejecting theDapplication has come up in this appeal.

3. We have heard Shri Ranjit Kumar, learned senior counsel andShri Gopal Singh, learned counsel for the appellant. Shri Kapil Sibal,learned senior counsel has appeared for the respondent.

4. Shri Ranjit Kumar, learned senior counsel submits that theEsubsequent conduct and actions of the respondent re-affirms the findingsof the Chairman that the respondent has voluntarily given up hismembership of JD(U) from which political party he was elected to RajyaSabha. It is submitted that on the basis of subsequent conducts andactions of the respondent, the appellant cannot go to Chairman, Rajya FSabha seeking disqualification of the respondent, hence, subsequentconducts and actions can be looked into in the writ petition and the HighCourt erred in rejecting application of the appellant bringing subsequent/additional evidence on record. It is submitted that respondent himselfhas relied on subsequent events in his pleadings. It is submitted thatthe respondent has subsequently contested the Lok Sabha Election fromGthe political party Rashtriya Janata Dal (RJD), which clearly provesthat he had voluntarily given up membership of JD(U) and had joinedRJD. Seeking disqualification of respondent is a continuous cause ofaction. Shri Ranjit Kumar has also relied on Section 8 of the EvidenceAct and submits that both previous and subsequent conducts areHrelevant.

5. Shri Kapil Sibal, learned senior counsel appearing for therespondent refuting the submissions of the learned counsel for theappellant contends that High Court has rightly rejected the applicationpraying for taking on record additional evidence regarding subsequentevents. He submits that under Tenth Schedule, disqualification isincurred on the day when member has voluntarily given up hismembership of political party from which he was elected. Therespondent having been disqualified; he is not a member of JD(U) ason date. The disqualification incurred by member under paragraph2(1)(a) of Tenth Schedule even though determined by the Speaker orChairman subsequently, the said adjudication relates to previous datewhen member voluntarily gives up his membership. Shri Sibal submitsthat subsequent conducts and events, which has taken place after theorder of the Chairman are neither germane nor relevant fordisqualification, which has been pronounced by Hon’ble Chairman. Hesubmits that it is the appellant, who has obtained adjournment of thehearing of the writ petition.

6. We have considered the submissions of the learned counselfor the parties and have perused the record. The points which arisefor consideration in this appeal lie in a very narrow compass.

7. Whether C.M.P. No. 27159 of 2018 filed by the appellant hasbeen erroneously rejected by the High Court is the question to beanswered. The writ petition filed by the respondent, which is pendingin the High Court is the writ petition challenging the order of Hon’bleChairman (Rajya Sabha) dated 04.12.2019 holding that respondent hasincurred disqualification for being member of House in terms ofparagraph 2(1)(a) of the Tenth Schedule of the Constitution. Thegrounds on which petition was filed by the appellant on 02.09.2017 fordisqualifying the respondent have been noticed in the order of theHon’ble Chairman (Rajya Sabha) to the following effect: - “In his petition, the petitioner averred that the respondent, ShriSharad Yadav, who was elected to the Rajya Sabha on the ticketof Janata Dal (United) from the State of Bihar on the 8[th] of July,2016, had by his repeated conduct, public/press statementsagainst the JD(U) and its leadership and openly aligning with arival political party, namely, the Rashtriya Janata Dal(RJD),proved that he has voluntarily given up the membership of theparty, thus becoming subject to disqualification under the Tenth AB

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ASchedule to the Constitution. The main contention of thepetitioner is that the respondent instead of adhering to theunanimous decision taken on the 26[th] of July, 2017 by the JD(U)and its President, Shri Nitish Kumar to withdraw from theMahagathbandhan and the coalition Government formed in Biharin 2015, started anti-party activities by publicly denouncing theBparty’s decision. He campaigned with RJD leaders and workersbetween the 10[th] and the 12[th] of August, 2017 in different districtsof Bihar and attended the public rally called by the rival politicalparty, i.e., RJD, in Patna on the 27[th] of August, 2017 despitewritten directive from Shri K.C. Tyagi, Secretary-General of theCparty advising him not to attend the rally and also conveying tohim that his participation in the rally would be construed not onlyagainst the principles of high morality but also as voluntarily givingup the membership of the JD(U). The petitioner had annexednewspaper clippings, media reports and videos as proof of theallegations.”D8. Paragraph 2(1) of the Tenth Schedule is to the followingeffect: - “2. Disqualification on ground of defection. — (1) Subjectto the provisions of paragraphs 4 and 5, a member of a HouseEbelonging to any political party shall be disqualified for being amember of the House—

(a) if he has voluntarily given up his membership of such politicalparty; or

Explanation. —For the purposes of this sub-paragraph, —F(a) an elected member of a House shall be deemed to belong tothe political party, if any, by which he was set up as a candidatefor election as such member;”

9. The disqualification is incurred by member of the House assoon as he has voluntarily given up his membership of such politicalGparty. This Court in Ravi S. Naik Vs. Union of India and Others,1994 Supp (2) SCC 641 had occasion to consider the expression“voluntarily given up his membership”. Referring to paragraph 2(1)(a),this Court laid down following: - “11…………………………………………. The said paragraphHprovides for disqualification of a member of a House belonging to a political party “if he has voluntarily given up his membershipof such political party”. The words “voluntarily given up hismembership” are not synonymous with “resignation” and havea wider connotation. A person may voluntarily give up hismembership of a political party even though he has not tenderedhis resignation from the membership of that party. Even in theabsence of a formal resignation from membership an inferencecan be drawn from the conduct of a member that he hasvoluntarily given up his membership of the political party to whichhe belongs.”

10. A Constitution Bench of this Court in Rajendra Singh Ranaand Others Vs. Swami Prasad Maurya and Others, (2007) 4 SCC270 had occasion to consider paragraph (2) of Tenth Schedule of theConstitution. In the above case, the Constitution Bench held thatdecision by the Speaker taken at a subsequent point of time cannot anddoes not postpone his incurring of disqualification by the act of thelegislature. In paragraph 34, this court held: - “34. As we see it, the act of disqualification occurs on a membervoluntarily giving up his membership of a political party or at thepoint of defiance of the whip issued to him. Therefore, the actthat constitutes disqualification in terms of para 2 of the TenthSchedule is the act of giving up or defiance of the whip. Thefact that a decision in that regard may be taken in the case ofvoluntary giving up, by the Speaker at a subsequent point of timecannot and does not postpone the incurring of disqualification bythe act of the legislator…………………………………………

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The fact that in terms of para 6 a decision on the question hasto be taken by the Speaker or the Chairman, cannot lead to aconclusion that the question has to be determined only withreference to the date of the decision of the Speaker. Aninterpretation of that nature would leave the disqualification toan indeterminate point of time and to the whims of the decision-making authority. The same would defeat the very object ofenacting the law. Such an interpretation should be avoided to theextent possible. We are, therefore, of the view that the contentionthat (sic it is) only on a decision of the Speaker thatthe disqualification is incurred, cannot be accepted. This wouldmean that what the learned Chief Justice has called the A

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snowballing effect, will also have to be ignored and the questionwill have to be decided with reference to the date on which themembership of the legislature party is alleged to have beenvoluntarily given up.”

11. A recent Three Judge Bench judgment of this Court inBShrimanth Balasaheb Patil Vs. Hon’ble Speaker KarnatakaLegislative Assembly and Others, (2019) 15 Scale 533 hadoccasion to consider paragraph 2 of the Tenth Schedule of theConstitution of India. In the above case, this Court noticed the objectsand reasons of the Constitution (Fifty-second Amendment) Act, 1985.This Court categorically held that decision of the Speaker that a memberCis disqualified relates back to the date of the disqualifying actioncomplained of. In paragraphs 54 and 55, this court laid down following:- “54. In addition to the above, the decision of the Speaker that amember is disqualified, relates back to the date of the disqualifyingaction complained of. The power of the Speaker to decide uponDa disqualification petition was dealt by a Constitution Bench ofthis Court in Rajendra Singh Rana v. Swami Prasad Maurya,(2007) 4 SCC 270. This Court, reading the provisions ofparagraphs 2 and 6 of the Tenth Schedule, has clearly held thatthe Speaker has to decide the question of disqualification withEreference to the date it was incurred. The Court held that:

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34. As we see it, the act of disqualification occurs on a membervoluntarily giving up his membership of a political party or at thepoint of defiance of the whip issued to him. Therefore, the actthat constitutes disqualification in terms of para 2 of the TenthFSchedule is the act of giving up or defiance of the whip. Thefact that a decision in that regard may be taken in the case ofvoluntary giving up, by the Speaker at a subsequent point of timecannot and does not postpone the incurring of disqualification bythe act of the legislator. Similarly, the fact that the party couldcondone the defiance of a whip within 15 days or that theGSpeaker takes the decision only thereafter in those cases, cannotalso pitch the time of disqualification as anything other than thepoint at which the whip is defied. Therefore in the backgroundof the object sought to be achieved by the Fifty-secondAmendment of the Constitution and on a true understanding ofHpara 2 of the Tenth Schedule, with reference to the other paragraphs of the Tenth Schedule, the position that emerges isthat the Speaker has to decide the question of disqualificationwith reference to the date on which the member voluntarily givesup his membership or defies the whip. It is really a decision expost facto...”

(emphasis supplied)

55. As such, there is no doubt that the disqualification relates tothe date when such act of defection takes place……………”

12. The decision taken by the Speaker, thus, has to be on thebasis of conduct or actions taken by member, which may amount tovoluntarily giving up his membership. The facts and sequence of theevents on the basis of which Hon’ble Chairman came to the conclusionthat a person has incurred disqualification under paragraph 2(1)(a) ofthe Tenth Schedule are all facts, which had occurred prior to adjudicationby the Hon’ble Chairman. In the facts of the present case, theChairman of Rajya Sabha has passed the order on 04.12.2019 on theclaim of the appellant praying for disqualification as noticed above. Thefoundation of order of the Chairman are the facts and events, whichtook place after 26.07.2017. The petition having been filed by theappellant on 02.09.2017, petition has to be treated to be founded onfacts and events, which took place on or before 02.09.2017.

13. Now, reverting to the C.M. Application No. 27159 of 2018,we need to note as to what was the additional evidence, which wassought to be brought on record of the writ petition. Paragraph 4 and 5of the application contains the details of Annexure 1 and Annexure 2,which is sought to be brought on record, which is as follows: -

“4. That it is respectfully submitted that during the pendency ofthe above matter, the petitioner has formed/launched a newpolitical party called the “Loktantrik Janata Dal” on 18.05.2018at the Talkatora Stadium. Photographs, video clippings, postersand banners are proof of this formation and his active role therein.

Photocopies of the pictures of the petitioner are annexed heretoas Annexure 1 collectively. Video recording of the speeches bythe petitioner in the said event as also some more photographshave been extracted in a CD which is annexed hereto asAnnexure-2.

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A5. That the annexures are the true copies of their respectiveoriginals.”

14. Paragraph 4 and the Annexures 1 and 2 referred thereinclearly indicate that what was sought to be taken on record was anevent which took place on 18.05.2018 in which event a new politicalBparty called the Loktantrik Janata Dal was formed/launched. Theapplication which was filed by the appellant seeking disqualification ofthe respondent was filed on 02.09.2017 in which application, thefoundation of disqualification of respondent was already laid down. Theorder passed by the Chairman is based on a petition dated 02.09.2017Cas well as the material and evidence, which was brought on recordbefore the Chairman. Additional evidence, which is sought to be broughton record of the writ petition was not the basis for seekingdisqualification of the respondent, hence, we do not find any error inthe order of the High Court rejecting the C.M. Application No. 27159Dof 2018. While upholding the order of the High court rejecting the C.M.Application No. 27159 of 2018, we, however, make few observations.

15. An event or a conduct of a person even though subsequentto passing of an order of Speaker or Chairman ordinarily may not berelevant for determining the validity of the order of the Speaker orEChairman but in a case where subsequent event or conduct of memberis relevant with respect to state of affairs as pertaining to the time whenmember has incurred disqualification, that subsequent events can betaken into consideration by the High Court in exercise of its jurisdictionunder Article 226. Justice Hidayatullah, (as he then was) speaking forthis Court in Mohd. Ikram Hussain Vs. State of Uttar Pradesh andFOthers, AIR 1964 SC 1625 has made a very pertinent observationwith regard to acceptance of evidence. It observed that if the Courtrequires an evidence that can always be received. In paragraph 19,following was laid down: - G“(19)………………………All procedure is always open to aCourt which is not expressly prohibited and no rule of this Courthas laid down that evidence shall not be received, if the Courtrequires it…………………………….”

16. The observations made by the High Court in paragraph 4,Hi.e., “any event subsequent to the passing of the said order cannot be a consideration for this Court to test the legality of the said order” maybe generally correct but there can be exception if the above statementis treated as statement of law.

17. In a writ petition under Article 226 subsequent events canbe taken note of for varied purposes. We are reminded of the weightyobservation of Justice V.R. Krishna Iyer in Pasupuleti VenkateswarluVs. The Motor & General Traders, (1975) 1 SCC 770, wherefollowing was observed: - “4.………………………………………………. It is basic to

our processual jurisprudence that the right to relief must be judgedto exist as on the date a suitor institutes the legal proceeding.Equally clear is the principle that procedure is the handmaid andnot the mistress of the judicial process. If a fact, arising afterthe lis has come to court and has a fundamental impact on theright to relief or the manner of moulding it, is brought diligentlyto the notice of the tribunal, it cannot blink at it or be blind toevents which stultify or render inept the decretal remedy. Equityjustifies bending the rules of procedure, where no specificprovision or fairplay is violated, with a view to promote substantialjustice — subject, of course, to the absence of other disentitlingfactors or just circumstances. Nor can we contemplate anylimitation on this power to take note of updated facts to confineit to the trial court. If the litigation pends, the power exists, absentother special circumstances repelling resort to that course in lawor justice. Rulings on this point are legion, even as situations forapplications of this equitable rule are myriad. We affirm theproposition that for making the right or remedy claimed by theparty just and meaningful as also legally and factually in accordwith the current realities, the Court can, and in many cases must,take cautious cognisance of events and developments subsequentto the institution of the proceeding provided the rules of fairnessto both sides are scrupulously obeyed………………………….”

18. The observations made in paragraph 4 as quoted above neednot to be read as laying down a law that in any case subsequent eventcannot be considered for testing the legality of the order impugned orfor moulding the relief in a writ petition under Article 226.

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A19. In view of the foregoing conclusions, we uphold the orderof the High Court subject to observations as made above. The writpetition before the High Court being held up due to pendency of thisappeal, we request the High Court to dispose of the writ petition at anearly date.

B20. The appeal is dismissed subject to the observation as madeabove.

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Devika Gujral

Appeal dismissed.

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