Disqualification from Rajya Sabha

Punishing dissent

Print edition : January 05, 2018

Sharad Yadav and Ali Anwar Ansari. Photo: V. Sudershan

Vice President M. Venkaiah Naidu. Photo: PTI

The disqualification of Sharad Yadav and Ali Anwar Ansari as Rajya Sabha members under the Tenth Schedule to the Constitution ignores the principles of natural justice.

THE Tenth Schedule to the Constitution, dealing with disqualification of a member elected to either House of Parliament or State Legislature, on the grounds of defection, envisages a quasi-judicial procedure to be adopted by the presiding officer of the House, whose office is expected to function like a tribunal, even if it lacks all the trappings of a court. Its implication is that the procedure followed complies with the principles of natural justice.

The disqualification of Janata Dal (United) leaders Sharad Yadav and Ali Anwar Ansari by Vice President M. Venkaiah Naidu, who is also the ex-officio Chairman of the Rajya Sabha, on December 4 smacks of arbitrariness and non-compliance with the principles of natural justice and ignores the Supreme Court’s interpretation of the powers of presiding officers in such proceedings.

On September 2, Venkaiah Naidu’s office received a petition from the leader of the JD (U) in the Rajya Sabha, Ram Chandra Prasad Singh, seeking Sharad Yadav’s and Ansari’s disqualification under the Tenth Schedule on the grounds that by their conduct, they had voluntarily given up the membership of the party, thus becoming subject to disqualification under Paragraph 2(1)(a) of the Tenth Schedule.

Ram Chandra Prasad Singh’s contention was that Sharad Yadav and Ansari opposed the unanimous decision of the JD(U) and its president, Nitish Kumar, to withdraw from the Mahagathbandhan (the grand alliance which included the JD (U) and the Rashtriya Janata Dal (RJD)), and the coalition government it formed in Bihar in 2015. Besides, he alleged that Sharad Yadav and Ansari campaigned with RJD leaders and workers between August 10 and 12 in various districts of Bihar and attended the public rally called by the RJD in Patna on August 27.

Sharad Yadav allegedly violated the directive issued by the party secretary general advising him not to attend the rally and also conveying to him that his participation in the rally would be construed as voluntarily giving up the membership of the JD (U). Ram Chandra Prasad Singh had attached newspaper clippings, media reports and videos as proof of the allegations. Ansari denied having received any such directive from anyone. He claimed that Sharad Yadav had directed him to attend the RJD rally.

Sharad Yadav, in his response to the petition, claimed that being a founding member of the JD(U), he had remained committed to its principles and continued to be a member of the party and had never intended to, least of all voluntarily, give up the membership of the party or form a new political party.

He 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 Bharatiya Janata Party (BJP), and subsequently aligned themselves with the BJP, thus betraying the trust reposed by the people of Bihar and their mandate.

Sharad Yadav’s contention was 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.

The main issue was whether Venkaiah Naidu should have referred Ram Chandra Prasad Singh’s petition to the Committee of Privileges of the Rajya Sabha, to conduct a preliminary inquiry and submit its report in accordance with previous cases. Venkaiah Naidu dispensed with this procedural requirement merely because it would have caused delay in deciding the question.

Venkaiah Naidu reasoned that it was not mandatory to refer each and every case to the Committee of Privileges as a matter of routine. “When the facts of the case are clear, the Chairman in his wisdom, may decide to proceed in the matter on his own,” he said in his order. He suggested that even after the preliminary inquiry by the Committee, as Chairman, he could analyse the facts and come to a final conclusion, which might be contrary to the report of the Committee. Therefore, he decided to proceed with the determination of the question himself, the order stated.

But the manner of Venkaiah Naidu’s determination of the question left a lot to be desired. In his response to Sharad Yadav’s comments, Ram Chandra Prasad Singh argued that the Mahagathbandhan was merely a political alliance formed on a common minimum programme to fight the Bihar Assembly elections and there was no compulsion on the constituents of a coalition to remain wedded to the alliance in spite of fundamental differences. He questioned Sharad Yadav’s right to question the unanimous views and decisions of the party.

“No political party, especially the JD (U), with strong and deep-rooted commitment against corruption in public life shall permit any of its member to align himself with a political party whose leaders are embroiled in corruption with serious charges of benami property dealings and money-laundering,” Ram Chandra Prasad Singh stated in his response. What he left unexplained was why the JD(U) entered into a Mahagathbandhan before the elections, although the charges of benami property dealings and money-laundering against RJD leaders were known at that time.

Accepting Sharad Yadav’s and Ansari’s request for a personal hearing, Venkaiah Naidu fixed October 30 for the purpose. Both of them sought eight weeks’ time to appear for the oral hearing, citing campaign for the Assembly elections in Gujarat and Himachal Pradesh as the reason. The Vice President gave them one week’s time and rescheduled the hearing for November 8. Sharad 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 the case himself. Venkaiah Naidu declined the request, citing the absence of rules and precedents. But proceedings under the Tenth Schedule, which are akin to that of a tribunal, cannot exclude lawyers if a request is made.

Sharad Yadav, who appeared in person before Venkaiah Naidu on November 8, 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, as it is evident that the provision for being heard in person, was in addition to being allowed legal representation. Sharad Yadav cited a number of precedents.

Venkaiah Naidu’s response to this was bizarre. He questioned the very rationale of legal representation saying that as it was evident that Sharad Yadav’s replies were prepared in consultation with his advocates, he should have come prepared for the oral hearing after consulting them. This is tantamount to denial of the legitimate rights of an accused for legal representation before a tribunal.

Venkaiah Naidu held that leaving or joining any political alliance did not fall within the purview of the anti-defection law. He reasoned that in a democracy, it was the rule of the majority and the voice of the majority that had to be accepted. Sharad Yadav, according to Venkaiah Naidu, failed to prove with documentary and other evidence that his group commanded the majority support within the JD(U) Legislature Party in the Rajya Sabha.

He held that if a member got elected as a candidate of a political party on the basis of its policies and manifestos but criticised it publicly, he would be deemed to have given up his membership of the party voluntarily. Venkaiah Naidu, however, did not explain whether such a member would be deemed to have done so if he felt that the party was working against its policies and manifestos, on the basis of which he got elected.

The Vice President has ignored an important ruling of the Supreme Court in Balchandra L.Jarkiholi vs B.S.Yeddiyurappa (2011) that demand by a party legislator for a change in the leadership did not amount to voluntarily giving up the membership of the party and instead relied on the Supreme Court’s judgment in Ravi Naik vs Union of India (1994), the facts of which were different. A legislator in that case was deemed to have voluntarily given up his party membership if he joined another political party or launched a new one. Neither of these ingredients was applicable in the case of Sharad Yadav and Ansari. Sharad Yadav has decided to challenge his disqualification legally.