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Supreme Court of India
Ram Chandra Prasad Singh vs Sharad Yadav on 19 March, 2020Author: Ashok Bhushan
Bench: R. Banumathi, Ashok Bhushan, A.S. Bopanna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2004 of 2020
(arising out of SLP (C) No. 25425 of 2018)
RAM CHANDRA PRASAD SINGH …APPELLANT(S)
VERSUS
SHARAD YADAV …RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
This appeal has been filed against the
Interlocutory Order dated 11.09.2018 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. By the said application, the appellant sought
permission to submit additional documents and place
material on record which has been rejected by the High
Court.
Signature Not Verified
Digitally signed by
MAHABIR SINGH
Date: 2020.03.20
15:04:57 IST
Reason:
2. Brief facts of the case giving rise to this appeal
are: –
1
2.1 The respondent No.1 was elected as Member of
Parliament (Rajya Sabha) from Bihar on a Janata
Dal (United) [JD(U)] ticket for a term beginning
from 08.07.2016 for a period of six years. The
appellant, a Member of Parliament (Rajya Sabha)
and leader of JD(U) in Rajya Sabha filed a
petition before the Chairman, Rajya Sabha on
02.09.2017 under Article 102(2) read with
paragraph 6 of the Tenth Schedule of the
Constitution of India praying that the
respondent No.1, Member of Rajya Sabha be
disqualified under the Tenth Schedule of the
Constitution of India and his seat be declared
vacant in Rajya Sabha. The appellant in his
petition has averred that respondent No.1, who
was elected to the Rajya Sabha on the ticket of
Janata Dal (United) from the State of Bihar had
by his repeated conduct, public/press statements
against the JD(U) and its leadership and openly
aligning with the rival political party,
Rashtriya Janata Dal (RJD), has voluntarily
given up his membership, thus, acquiring
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disqualification under the Tenth Schedule to the
Constitution.
2.2 The Chairman, Rajya Sabha got a copy of the
petition filed by the appellant forwarded to the
respondent, who was requested to furnish his
comments thereon. The respondent after seeking
extension of time filed his comments. The
Chairman, Rajya Sabha after following the due
procedure and after giving opportunity of oral
hearing to the respondent No.1 passed an order
on 04.12.2017 disqualifying the respondent 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
Chairman of the Rajya Sabha, respondent filed a
Writ Petition No. 11102 of 2017 in Delhi High
Court.
2.4 In paragraphs 27 and 28, the Chairman, Rajya
Sabha has observed: –
“27. After taking into account the
facts of the case, the comments of
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the respondent and the petitioner,
the respondent’s oral submission
during the personal hearing on the
8th of November, 2017 and the
observations of the Committee of
Privileges of the Eighth Lok Sabha
and Hon’ble Supreme court’s Judgment
in the 1994 Ravi Naik Vs. Union of
India case and observations in
similar anti-defection cases, it is
crystal clear that by his conduct,
actions and speeches, the
respondent, Shri Sharad Yadav, has
voluntarily given up his membership
of the political party, Janata Dal
(United) by which he was set up as a
candidate for election to the Rajya
Sabha from the State of Bihar in 2016
and elected as such member.
28. I, therefore, hold that the
Respondent Shri Sharad Yadav has
incurred disqualification 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 the Rajya Sabha with
immediate effect. I decide and
declare accordingly.”
2.5 The appellant, who was respondent in the writ
petition filed C.M. Application No. 27159 of 2018
dated 07.07.2018 praying for seeking permission
to place additional documents Annexure 1 and
Annexure 2 filed alongwith the application to be
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taken on record.
2.6 An affidavit in reply to the above application
was filed by the petitioner. In his affidavit,
the writ petitioner denied averments made in the
application. In paragraph 2 of the affidavit,
following was stated: –
“2. That I have gone through the
contents of the application filed by
the respondent No.1 seeking
permission to place additional
material on record to demonstrate
some purported post disqualification
conduct of the petitioner. I wish
to deny each and every averment made
therein and the contents of the said
application may be deemed to be
specifically traversed and denied by
me unless expressly admitted by me
hereinafter.”
2.7 In the affidavit, the petitioner has denied that
he has formed any new political party. He had
further averred that he has been wrongly
disqualified. It was pleaded that High Court is
not concerned with the subsequent event which do
not form subject matter of the writ petition.
The application filed by the appellant was
opposed by the writ petitioner. The High Court
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vide its impugned judgment dated 11.09.2018
dismissed the application. After noticing the
averments made in the application of the
appellant and the reply given by the writ
petitioner, High 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 the
legality and the validity of the
order dated 04.12.2017 passed by the
Chairperson, Rajya Sabha,
disqualifying the petitioner from
being a member of the Rajya Sabha.
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.”
2.8 The appellant aggrieved by the above order
rejecting the application has come up in this
appeal.
3. We have heard Shri Ranjit Kumar, learned senior
counsel and Shri Gopal Singh, learned counsel for the
appellant. Shri Kapil Sibal, learned senior counsel has
appeared for the respondent.
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4. Shri Ranjit Kumar, learned senior counsel submits
that the subsequent conduct and actions of the
respondent reaffirms the findings of the Chairman that
the respondent has voluntarily given up his membership
of JD(U) from which political party he was elected to
Rajya Sabha. It is submitted that on the basis of
subsequent conducts and actions of the respondent, the
appellant cannot go to Chairman, Rajya Sabha seeking
disqualification of the respondent, hence, subsequent
conducts and actions can be looked into in the writ
petition and the High Court erred in rejecting
application of the appellant bringing subsequent/
additional evidence on record. It is submitted that
respondent himself has relied on subsequent events in
his pleadings. It is submitted that the respondent has
subsequently contested the Lok Sabha Election from the
political party Rashtriya Janata Dal (RJD), which
clearly proves that he had voluntarily given up
membership of JD(U) and had joined RJD. Seeking
disqualification of respondent is a continuous cause
of action. Shri Ranjit Kumar has also relied on Section
8 of the Evidence Act and submits that both previous
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and subsequent conducts are relevant.
5. Shri Kapil Sibal, learned senior counsel appearing
for the respondent refuting the submissions of the
learned counsel for the appellant contends that High
Court has rightly rejected the application praying for
taking on record additional evidence regarding
subsequent events. He submits that under Tenth
Schedule, disqualification is incurred on the day when
member has voluntarily given up his membership of
political party from which he was elected. The
respondent having been disqualified; he is not a member
of JD(U) as on date. The disqualification incurred by
member under paragraph 2(1)(a) of Tenth Schedule even
though determined by the Speaker or Chairman
subsequently, the said adjudication relates to previous
date when member voluntarily gives up his membership.
Shri Sibal submits that subsequent conducts and events,
which has taken place after the order of the Chairman
are neither germane nor relevant for disqualification,
which has been pronounced by Hon’ble Chairman. He
submits that it is the appellant, who has obtained
adjournment of the hearing of the writ petition.
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6. We have considered the submissions of the learned
counsel for the parties and have perused the record.
The points which arise for consideration in this appeal
lie in a very narrow compass.
7. Whether C.M.P. No. 27159 of 2018 filed by the
appellant has been erroneously rejected by the High
Court is the question to be answered. The writ petition
filed by the respondent, which is pending in the High
Court is the writ petition challenging the order of
Hon’ble Chairman (Rajya Sabha) dated 04.12.2019 holding
that respondent has incurred disqualification for being
member of House in terms of paragraph 2(1)(a) of the
Tenth Schedule of the Constitution. The grounds on
which petition was filed by the appellant on 02.09.2017
for disqualifying the respondent have been noticed in
the order of the Hon’ble Chairman (Rajya Sabha) to the
following effect: –
“In his petition, the petitioner averred
that the respondent, Shri Sharad Yadav, who
was elected to the Rajya Sabha on the ticket
of Janata Dal (United) from the State of
Bihar on the 8th of July, 2016, had by his
repeated conduct, public/press statements
against the JD(U) and its leadership and
openly aligning with a rival political
9
party, namely, the Rashtriya Janata
Dal(RJD), proved that he has voluntarily
given up the membership of the party, thus
becoming subject to disqualification under
the Tenth Schedule to the Constitution.
The main contention of the petitioner is
that the respondent instead of adhering to
the unanimous decision taken on the 26th of
July, 2017 by the JD(U) and its President,
Shri 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. He
campaigned with RJD leaders and workers
between the 10th and the 12th of August, 2017
in different districts of Bihar and
attended the public rally called by the
rival political party, i.e., RJD, in Patna
on the 27th of August, 2017 despite written
directive from Shri K.C. Tyagi, Secretary-
General of the party advising him not to
attend the rally and also conveying to him
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.”
8. Paragraph 2(1) of the Tenth Schedule is to the
following effect: –
“2. Disqualification on ground of
defection. — (1) Subject to the provisions
of paragraphs 4 and 5, a member of a House
belonging to any political party shall be
disqualified for being a member of the
House—
(a) if he has voluntarily given up his
10
membership of such political party;
or
Explanation. —For the purposes of this sub-
paragraph, —
(a) an elected member of a House shall
be deemed to belong to the political
party, if any, by which he was set
up as a candidate for election as
such member;”
9. The disqualification is incurred by member of the
House as soon as he has voluntarily given up his
membership of such political party. 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 paragraph
provides for disqualification of a member
of a House belonging to a political party
“if he has voluntarily given up his
membership of such political party”. 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 party even though he has not
tendered his resignation from the
membership of that party. Even in the
absence of a formal resignation from
membership an inference can be drawn from
the conduct of a member that he has
voluntarily given up his membership of the
political party to which he belongs.”
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10. A Constitution Bench of this Court in Rajendra
Singh Rana and Others Vs. Swami Prasad Maurya and
Others, (2007) 4 SCC 270 had occasion to consider
paragraph (2) of Tenth Schedule of the Constitution.
In the above case, the Constitution Bench held that
decision by the Speaker taken at a subsequent point of
time cannot and does not postpone his incurring of
disqualification by the act of the legislature. In
paragraph 34, this court held: –
“34. As we see it, the act of
disqualification occurs on a member
voluntarily giving up his membership of a
political party or at the point of defiance
of the whip issued to him. Therefore, the
act that constitutes disqualification in
terms of para 2 of the Tenth Schedule is
the act of giving up or defiance of the
whip. The fact that a decision in that
regard may be taken in the case of voluntary
giving up, by the Speaker at a subsequent
point of time cannot and does not postpone
the incurring of disqualification by the
act of the legislator………………………………………………………
…………………………………………………………………………………………………………..
The fact that in terms of para 6 a decision
on the question has to be taken by the
Speaker or the Chairman, cannot lead to a
conclusion that the question has to be
determined only with reference to the date
of the decision of the Speaker. An
interpretation of that nature would leave
the disqualification to an indeterminate
point of time and to the whims of the
decision-making authority. The same would
defeat the very object of enacting the law.
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Such an interpretation should be avoided to
the extent possible. We are, therefore, of
the view that the contention that (sic it
is) only on a decision of the Speaker that
the disqualification is incurred, cannot be
accepted. This would mean that what the
learned Chief Justice has called the
snowballing effect, will also have to be
ignored and the question will have to be
decided with reference to the date on which
the membership of the legislature party is
alleged to have been voluntarily given up.”
11. A recent Three Judge Bench judgment of this Court
in Shrimanth Balasaheb Patil Vs. Hon’ble Speaker
Karnataka Legislative Assembly and Others, (2019) 15
Scale 533 had occasion to consider paragraph 2 of the
Tenth Schedule of the Constitution of India. In the
above case, this Court noticed the objects and reasons
of the Constitution (Fifty-second Amendment) Act, 1985.
This Court categorically held that decision of the
Speaker that a member is disqualified relates back to
the date of the disqualifying action complained of. In
paragraphs 54 and 55, this court laid down following:-
“54. In addition to the above, the decision
of the Speaker that a member is
disqualified, relates back to the date of
the disqualifying action complained of. The
power of the Speaker to decide upon a
disqualification petition was dealt by a
Constitution Bench of this Court in
Rajendra Singh Rana v. Swami Prasad Maurya,
(2007) 4 SCC 270. This Court, reading the
13
provisions of paragraphs 2 and 6 of the
Tenth Schedule, has clearly held that the
Speaker has to decide the question of
disqualification with reference to the date
it was incurred. The Court held that:
34. As we see it, the act of
disqualification occurs on a
member voluntarily giving up his
membership of a political party or
at the point of defiance of the
whip issued to him. Therefore, the
act that constitutes
disqualification in terms of para
2 of the Tenth Schedule is the act
of giving up or defiance of the
whip. The fact that a decision in
that regard may be taken in the
case of voluntary giving up, by the
Speaker at a subsequent point of
time cannot and does not postpone
the incurring of disqualification
by the act of the legislator.
Similarly, the fact that the party
could condone the defiance of a
whip within 15 days or that the
Speaker takes the decision only
thereafter in those cases, cannot
also pitch the time of
disqualification as anything other
than the point at which the whip
is defied. Therefore in the
background of the object sought to
be achieved by the Fifty-second
Amendment of the Constitution and
on a true understanding of para 2
of the Tenth Schedule, with
reference to the other paragraphs
of the Tenth Schedule, the
position that emerges is that the
Speaker has to decide the question
of disqualification with reference
to the date on which the member
voluntarily gives up his
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membership or defies the whip. It
is really a decision ex post
facto…”
(emphasis supplied)
55. As such, there is no doubt that the
disqualification relates to the date when
such act of defection takes
place…………………………………………….”
12. The decision taken by the Speaker, thus, has to be
on the basis of conduct or actions taken by member,
which may amount to voluntarily giving up his
membership. The facts and sequence of the events on
the basis of which Hon’ble Chairman came to the
conclusion that a person has incurred disqualification
under paragraph 2(1)(a) of the Tenth Schedule are all
facts, which had occurred prior to adjudication by the
Hon’ble Chairman. In the facts of the present case,
the Chairman of Rajya Sabha has passed the order on
04.12.2019 on the claim of the appellant praying for
disqualification as noticed above. The foundation of
order of the Chairman are the facts and events, which
took place after 26.07.2017. The petition having been
filed by the appellant on 02.09.2017, petition has to
be treated to be founded on facts and events, which
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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 was sought to be brought on record of
the writ petition. Paragraph 4 and 5 of 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 of the above matter,
the petitioner has formed/launched a new
political party called the “Loktantrik
Janata Dal” on 18.05.2018 at the Talkatora
Stadium. Photographs, video clippings,
posters and banners are proof of this
formation and his active role therein.
Photocopies of the pictures of the
petitioner are annexed hereto as Annexure
1 collectively. Video recording of the
speeches by the petitioner in the said
event as also some more photographs have
been extracted in a CD which is annexed
hereto as Annexure-2.
5. That the annexures are the true copies
of their respective originals.”
14. Paragraph 4 and the Annexures 1 and 2 referred
therein clearly indicate that what was sought to be
taken on record was an event which took place on
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18.05.2018 in which event a new political party called
the Loktantrik Janata Dal was formed/launched. The
application which was filed by the appellant seeking
disqualification of the respondent was filed on
02.09.2017 in which application, the foundation of
disqualification of respondent was already laid down.
The order passed by the Chairman is based on a petition
dated 02.09.2017 as well as the material and evidence,
which was brought on record before the Chairman.
Additional evidence, which is sought to be brought on
record of the writ petition was not the basis for
seeking disqualification of the respondent, hence, we
do not find any error in the order of the High Court
rejecting the C.M. Application No. 27159 of 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
subsequent to passing of an order of Speaker or
Chairman ordinarily may not be relevant for determining
the validity of the order of the Speaker or Chairman
but in a case where subsequent event or conduct of
17
member is relevant with respect to state of affairs as
pertaining to the time when member has incurred
disqualification, that subsequent events can be taken
into consideration by the High Court in exercise of its
jurisdiction under Article 226. Justice Hidayatullah,
(as he then was) speaking for this Court in Mohd. Ikram
Hussain Vs. State of Uttar Pradesh and Others, AIR 1964
SC 1625 has made a very pertinent observation with
regard to acceptance of evidence. It observed that if
the Court requires an evidence that can always be
received. In paragraph 19, following was laid down: –
“(19) ………………………All procedure is always
open to a Court which is not expressly
prohibited and no rule of this Court has
laid down that evidence shall not be
received, if the Court requires
it…………………………….”
16. The observations made by the High Court in
paragraph 4, i.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” may be
generally correct but there can be exception if the
above statement is treated as statement of law.
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17. In a writ petition under Article 226 subsequent
events can be taken note of for varied purposes. We
are reminded of the weighty observation of Justice V.R.
Krishna Iyer in Pasupuleti Venkateswarlu Vs. The Motor
& General Traders, (1975) 1 SCC 770, where following
was observed: –
“4. ………………………………………………. It is basic to our
processual jurisprudence that the right to
relief must be judged to exist as on the
date a suitor institutes the legal
proceeding. Equally clear is the principle
that procedure is the handmaid and not the
mistress of the judicial process. If a
fact, arising after the lis has come to
court and has a fundamental impact on the
right to relief or the manner of moulding
it, is brought diligently to the notice of
the tribunal, it cannot blink at it or be
blind to events which stultify or render
inept the decretal remedy. Equity justifies
bending the rules of procedure, where no
specific provision or fairplay is violated,
with a view to promote substantial justice
— subject, of course, to the absence of
other disentitling factors or just
circumstances. Nor can we contemplate any
limitation on this power to take note of
updated facts to confine it to the trial
court. If the litigation pends, the power
exists, absent other special circumstances
repelling resort to that course in law or
justice. Rulings on this point are legion,
even as situations for applications of this
equitable rule are myriad. We affirm the
proposition that for making the right or
remedy claimed by the party just and
meaningful as also legally and factually in
accord with the current realities, the
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Court can, and in many cases must, take
cautious cognisance of events and
developments subsequent to the institution
of the proceeding provided the rules of
fairness to both sides are scrupulously
obeyed…………………………………….”
18. The observations made in paragraph 4 as quoted
above need not to be read as laying down a law that in
any case subsequent event cannot be considered for
testing the legality of the order impugned or for
moulding the relief in a writ petition under
Article 226.
19. In view of the foregoing conclusions, we uphold
the order of the High Court subject to observations as
made above. The writ petition before the High Court
being held up due to pendency of this appeal, we request
the High Court to dispose of the writ petition at an
early date.
20. The appeal is dismissed subject to the observation
as made above.
………………….J.
( ASHOK BHUSHAN )
………………….J.
( M.R. SHAH )
New Delhi,
March 19, 2020.
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