IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5914 of 2008 Jai Narayan Prasad Nishad, son of Late Kokil Prasad Nishad, resident of Ward No.1, Hathsarganj, Post Hajipur, District-Vaishali (Bihar), at present Member of Rajya Sabha, residing at 19, Feroz Shah Road, New Delhi-1. ……………. Petitioner Versus 1. The Union of India through the Secretary, Parliamentary Affairs, New Delhi 2. The Hon‟ble Chairman, Rajya Sabha, 29, Parliament House, New Delhi 3. The Secretary General, Rajya Sabha, 29, Parliament House, New Delhi 4. The Election Commission of India through the Chief Election Commissioner, Nirwachan Bhawan, New Delhi 5. Smt. Sushma Swaraj, wife of Sri Swaraj Kaushal, M.P. (Rajya Sabha) and Deputy Leader, BJP Parliamentary Group (Raj Sabha), 29, Parliament House, New Delhi 6. Rajiv Pratap Rudy, son of Sri V.N.Singh, Resident of Sheonandan Bhawan, Boring Road, Patna at present Member of Rajya Sabha, New Delhi ………………………. Respondents ----------- For the petitioner: M/S Y.V.Giri, Sr. Advocate, Raju Giri, V.R.Bharti and Pranav Kumar, Advocates For Respondent No.5:- M/S Jitendra Singh, Sr. Advocate and Rajeev, Advocate For Respondent No.6: M/S J.S.Doabia, Sr. Advocate, Alok Kumar, Advocate, Sudhir Singh (ASG) and Shailendra Sharma, Advocate. ------------ O R D E R 11. 15.04.2009 The petitioner seeks the intervention of this Court by issuing a writ/order/direction in the nature of certiorari for quashing the order dated 26.3.2008 passed by the Chairman, Rajya Sabha in exercise of powers conferred by para-6 of the Tenth Schedule to the Constitution by which he has disqualified the petitioner in terms of para-2(1)(a) of the Tenth Schedule to the Constitution of India and for further consequential reliefs and directions. The petitioner was elected to the Rajya Sabha by the Legislative Assembly of the State of Bihar in 2004 as a candidate of - 2 - the Bhartiya Janata Party (BJP) which is a recognized political party and also the main opposition party in the Rajya Sabha. On 22.12.2005, the respondent no. 5, Smt. Sushma Swaraj, the Deputy Leader, BJP Parliamentary Group in the Rajya Sabha filed a petition under Rule 6 of the Members of Rajya Sabha (Disqualification on the Ground of Defection) Rules, 1985 for disqualifying the petitioner under the Tenth Schedule to the Constitution of India. It was stated in the said petition that in the last Assembly election to the Bihar Vidhan Sabha held in October-November, 2005, the petitioner for extraneous and motivated reasons decided to disassociate himself from the BJP and on 18th October, 2005 he sent a letter to the President of BJP, Bihar State resigning from the Membership of BJP and thus had voluntarily relinquished the membership of the party on whose ticket he was elected to the Rajya Sabha. It was asserted that the said letter was sent on the official letter head as a member of Parliament which not only bears his signature but the copy of the same was directed to be forwarded to all the print and electronic media. It was further alleged that thereafter the petitioner openly started campaigning against the BJP and other candidates of the National Democratic Alliance of which the BJP was a part and his tour programmes along with several other leaders of the Rashtriya Janata Dal (RJD) were regularly arranged by the RJD (the principal opposing party contesting against the BJP/NDA in the Vidhan Sabha elections) and the details of the said programmes were duly published in various newspapers in Bihar by and under the authority of RJD, Bihar and the said campaign - 3 - programmes showed that he had jointly campaigned by helicopter in various constituencies along with senior leaders of the RJD; photo copies of various newspapers clippings of 5.11.2005, 10.11.2005 and 11.11.2005 were annexed with the petition. It was alleged that the petitioner openly, actively and effectively campaigned against many BJP and its NDA ally JD (U) candidates in many other different constituencies. It was also alleged that during a public meeting in the Kudhni assembly constituency on 18.10.2005 the petitioner publicly declared that after resigning from BJP he would also relinquish the membership of Parliament and submit his resignation to the Chairman which remark was published in the newspaper dated 19.10.2005, photo copy of which was enclosed. It was thus alleged that apart from resignation, his conduct also conclusively established that the petitioner had voluntarily given up the membership of BJP which had elected him as member of Rajya Sabha. Upon receipt of the petition, the Chairman directed the copy of the same with its annexures to be forwarded to the petitioner and to the leader of the BJP and leader of the opposition in Rajya Sabha requesting them to forward their comments in writing on the said petition within seven days of the receipt of the same in terms of sub-rule (3) of Rule 7 of the Disqualification Rules. In his reply to the above petition the petitioner disagreed with the charges made against him and stated that he had tendered his resignation from the primary membership of the party on 18.10.2005 in an agitated mental condition which was withdrawn by - 4 - the letter dated 17.11.2005. The same was duly accepted by condoning the resignation because no action either under sub-Article (4) of Article 25 of the Constitution and Rules of the BJP party has been taken by issuing notice by the President concerned or by giving information to the Chairman of the Rajya Sabha by the leader of the Legislature Party for unseating him from the seat arrangement or by giving request of information for action for the said acts. On the other hand, it was stated that the party office bearers or the competent authority of the party had written him several letters by issuing whip and directions for voting in a particular manner in the House on a particular issue for which the evidentiary letters were annexed. He also referred to the SMS messages on several occasions on 18.11.2005, 21.11.2005, 5.12.2005, 6.12.2005 and 12.12.2005 by the Chief Whip/competent authority to attend the meeting of the party or to act according to the messages. It was further stated that the monthly subscription fee for the party at the rate of Rs. 1200/- per month was also being taken from him till 10.12.2005. The said acts, according to the petitioner, amounted to condonation of his conduct. It was also contended for the said reasons that by such acts of condonation and the conduct of the party-authorities, no voluntarily giving up membership or resignation from the party has been effected and thus no disqualification has been attracted; hence the petition should be summarily dismissed. After receiving the comments of the petitioner as also the Leader of BJP in the Rajya Sabha, the Chairman, Rajya Sabha - 5 - referred the petition to the Privileges Committee of the Rajya Sabha for making a preliminary enquiry and submitting a report to him under sub-Rule (4) of Rule 7 of the aforesaid Rules. The Committee at its meeting held on 13.3.2006 decided to give an opportunity to the petitioner to represent his case and be heard personally in terms of Rule 7(7) of the Rules fixing 30.5.2006, 2.8.2006 and 27.10.2006 for his appearance but citing various reasons like Panchayat Elections, elections to Rajya Sabha, stomach disorder and Chhath Puja, the petitioner did not appear on the said three dates. He appeared for the first time on 3.11.2006 and requested that he wanted to place some additional papers for consideration of the Committee and prayed for time which was granted fixing the date on 21.11.2006. However, the petitioner filed a supplementary affidavit raising a few points on 13.11.2006 but did not appear on 21.11.2006 on account of being hospitalized in Coronary Care Unit of Ram Manohar Lohia Hospital, New Delhi. Apart from repeating what he had raised earlier, a few additional points were made in the supplementary affidavit regarding the continued receipt of SMS messages from the party-authorities even after the filing of his response to the petition till 13th March, 2006; receipt of a letter from the party regarding meeting of different cells of the parties fixed on 27.5.2006 by convenor and co-conveners, the petitioner being Incharge of Fishery Cell of BJP; non-furnishing of information to the Chairman, Rajya Sabha in Form-1 as required by Rule 3(1)(a) of the Rules regarding the names of members of the concerned Legislature Party, his suspension from the BJP - 6 - Parliamentary Party by letter dated, 27.3.2006 , letter dated 28.9.2006 of the Chief Whip of the BJP (Rajya Sabha) stating that he had ceased to be member of the Parliamentary BJP Party and non-submission of information regarding suspension or cession of membership to the Chairman, Rajya Sabha as a result of which no action was warranted under the Disqualification Rules. Thereafter the petitioner appeared before the Committee on 17.1.2007 and reiterated the submissions that he had made in his reply to the petition and the supplementary affidavit. The petitioner denied that he had gone anywhere for campaigning in favour of the candidates of RJD including for his son who was contesting as a candidate of RJD in the Assembly elections or having addressed public meeting in the forum of RJD. Regarding the advertisement/newspaper reports he stated that he had told about this to the leader of RJD and that he had written to concerned newspapers that his name and statements appearing therein were wrongly quoted but he could not produce any letter before the Committee stating that he would have to search for the same but admitting that none of his statements in contradiction was published in the newspapers. In its report dated 20.11.2007 submitted to the Chairman, Rajya Sabha, the Committee came to the conclusion that the petitioner had incurred disqualification for being a member of the Rajya Sabha in pursuance of paragraph 2(1)(a) of the Tenth Schedule to the Constitution. The Committee was of the view that the SMS messages and letters sent to the petitioner by the BJP office bearers as - 7 - also the deduction of subscription fee from his Bank Account were routine exercises and had been done in a mechanical manner by the party office bearers. The non-furnishing of information under Rule 3(1)(a) was also held to be a mere procedural infirmity having no bearing on the question and any issue. Similar was the position with respect to non-submission of information regarding his suspension. The Committee held that the question of acceptance of his resignation or his subsequent withdrawal of resignation does not bear any significance since from his conduct and also from his resignation dated 18.10.2005, he had voluntarily given up the membership of the political party as he had not indicated any coercion in sending his resignation except that it was given under agitated mental condition and in the absence of any categorical rebuttal by him he could not disprove the media reports suggesting that he had willingly allowed his name to be used for campaigning for another political party. The Committee also could not be convinced by the petitioner that his name was used by the RJD candidate for campaigning without his consent. Two of the eleven members of the Privileges Committee, however, gave their separate notes of dissent. After receipt of the report of the Committee , a copy of the same along with its annexures was directed by the Chairman to be sent to the petitioner and he was requested to be present in his Chamber on January, 8, 2008 at 11.30 A.M. to enable him to have an opportunity to represent his case and to be heard in person. The petitioner, however, by his letter dated 7.1.2008 requested for supply - 8 - of copies of the notes of the two dissenting members of the Committee and sought time to enable him to study them and frame his views. The notes were supplied and the next date was fixed on 11th March, 2008 at 3.30 P.M. for his appearance. The petitioner did not appear on the ground of health. On 14.3.2008 he wrote to the Secretary General, Rajya Sabha enclosing his discharge report dated 13.3.2008 of Dr. Ram Manohar Lohia Hospital, New Delhi stating that he had been advised complete bed rest for a period of fifteen days and also required to report to Endocrinology Department and also report to cardiology OPD after two weeks for further check-ups and requested that next date of hearing in his case be fixed after consultation with him. By letter dated 18th March, 2008 the petitioner was afforded another opportunity to represent his case on 26.3.2008 at 11.00 A.M. The petitioner again sent letter dated 24th March, 2008 stating that his health had deteriorated in the past few weeks and again requested that the next date of hearing may be fixed after consultation with him keeping in view his health problems and did not appear on March 26, 2008. Thereafter, being satisfied that the provisions of Rule 7(7) of the Rules have been complied with, the Chairman, Rajya Sabha proceeded in the matter and passed the impugned order dated 26.3.2008. In the said order the Chairman considered the entire facts from the filing of the petition by respondent no. 5 and statements made therein as also the comments of the petitioner thereon. It is further stated that the report of the Committee was perused and thereafter the relevant part of the report containing the findings and - 9 - conclusions of the Committee were also noted. On a consideration of the same he came to the conclusion that the petitioner had voluntarily relinquished the membership of the BJP by which he was set up as a candidate for election to the Rajya Sabha in the State of Bihar in 2004 and elected as Member and therefore, held that the petitioner had incurred disqualification from being a member of the House in terms of paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India and thus he had ceased to be a member of Rajya Sabha with immediate effect. Mr. Y.V.Giri, learned Senior counsel appearing for the petitioner submits that the impugned order is not a judgment on full consideration of the issues involved and the evidence available on the record. It is argued that the Chairman, Rajya Sabha was required to apply his independent mind like a judicial authority and then pass an order by assigning his own reasons which he has not done. It is also contended that he has not considered the minority reports available on the record which consideration was a must. For the said reasons, according to him, the impugned order is not a judgment or order as expected to be passed by a Tribunal in exercise of functions which have been held to be of a judicial nature and therefore, it is perverse and violative of the principles of natural justice and fair play. It is urged by learned counsel that the Chairman has surrendered his judgment to the view of the Privilege Committee and he has not considered the defence of the petitioner although a detailed defence was filed and thus the order suffers from complete non-application of - 10 - mind. Neither the resignation letter nor the letter of withdrawal of resignation was considered. It is the contention of learned counsel that the resignation letter dated 18.10.2005 has to be seen in its proper context under which it is not so much a voluntary giving up of the membership of the Party but an attempt to provide a larger focus so as to improve the functioning of the party and also in the context that the same was withdrawn on 17.11.2005 much before filing of the complaint by respondent no. 5 on 22.12.2005. He also refers to various letters and documents showing the action of the party functionaries that they continued to treat him as a member of the Party by sending letters and notices to him and deducting his subscription. All these, according to learned counsel for the petitioner, amounts to a condonation of the action of the petitioner by the Party functionaries which is further reinforced by the fact that at no point of time the resignation of the petitioner had been accepted by the authorities of the Party. It is urged that the action of the BJP leaders in not informing the Chairman, Rajya Sabha in terms of Rule 3, etc. of the Rules amounts to acceptance of the withdrawal of resignation by the petitioner and condoning his activities if any and they forfeit their right to proceed for his disqualification. It is argued that if the leaders of the BJP have themselves violated the Disqualification Rules they cannot be allowed to use that forum against the petitioner and at least this aspect should have been considered by the Chairman in his order. The non-consideration of the same makes the order perverse and liable - 11 - to be set aside. Learned counsel also submits that it was wrongly held by the Committee of Privileges that the onus of disproving the allegations lies on the petitioner when nothing has been proved by the other side. It is submitted by learned counsel that the Tribunal has failed to consider the relevant laws cited and the issues involved in terms of the said decisions. Placing reliance on the case of Ravi S.Nayak Vs. Union of India & ors: 1994(Supp) 2 SCC 641, it is submitted that the whole conduct of the petitioner post facto his resignation was relevant for the purpose of coming to the conclusion whether he had voluntarily given up his membership of a political party but the same was not considered. The relevant part of para-11 of the said judgment is quoted below:- “…… 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.” On the question of conduct, it is also the submission of learned counsel that the petitioner not having taken up membership of any other political party coupled with withdrawal of resignation, goes a long way to show that he neither gave up nor had any intention to give up the membership of his political party. In support of the same learned counsel relies upon a decision of the Supreme Court in the - 12 - case of G.Vishwanathan Vs. Hon‟ble Speaker, Tamil Nadu Legislative Assembly, Madras and another: (1996) 2 SCC 353, the relevant part of paras 11 and 14 of which are quoted below:- “11…….The further question is when does a person “voluntarily give up” his membership of such political party, as provided in para 2(1)(a) ? The act of voluntarily giving up the membership of the political party may be either express or implied. When a person who has been thrown out or expelled from the party which set him up as a candidate and got elected, joins another (new) party, it will certainly amount to his voluntarily giving up the membership of the political party which had set him up as a candidate for election as such member. 14………If he of his own volition joins another political party, as the appellants did in the present case, he must be taken to have acquired the membership of another political party by abandoning the political party to which he belonged or must be deemed to have belonged under the explanation to para 2(1) of the Tenth Schedule. Of course, courts would insist on evidence which is positive, reliable and unequivocal.” On the question of violation of natural justice learned counsel relies upon the decision of the Supreme Court in the case of S.L.Kapoor Vs. Jagmohan and others: (1980) 4 SCC 379, in para-24 of which, after quoting from Jackson‟s Natural Justice (1980 Edn.), it was held as follows:- “In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its - 13 - writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal.” Learned counsel relies on the case of Jagjit Singh Vs. State of Haryana and others: (2006) 11 SCC 1 wherein it has been held that undoubtedly the proceedings before the Speaker who is also a Tribunal have to be conducted in a fair manner and by complying with the principles of natural justice. He also seeks support on this issue on the judgment in the case of K.L.Tripathi Vs. State Bank of India & Ors: AIR 1984 SC 273. With respect to the order being bad for non-assigning of reasons, learned counsel relies upon a Supreme Court decision in the case of The Simens Engineering & Manufacturing Co. of India Ltd. Vs. The Union of India and another: (1976) 2 SCC 981 in the relevant part of para-6 of which judgment it has been held as follows:- “Before we part with this appeal, we must express our regret at the manner in which the Assistant Collector, the Collector and the Government of India disposed of the proceedings before them. It is incontrovertible that the proceedings before the Assistant Collector arising from the notices demanding differential duty were quasi-judicial proceedings and so also were the proceedings in revision before the Collector and the Government of India. Indeed, this was not disputed by the learned Counsel appearing on behalf of the respondents. It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N.M.Desai Vs. Testeels Ltd.” - 14 - It is further argued by learned counsel that the reasons not having been assigned in the impugned order it is not open to the respondents to defend the same on the basis of their own reasonings in the course of hearing of the writ petition and the order must stand or fall only on the basis of reasons assigned therein. In support of the same he relies upon the decision of the Constitution Bench in the case of Mohinder Singh Gill & anr. Vs. The Chief Election Commissioner, New Delhi & ors. : (1978) 1 SCC 405, para-8 of which is quoted below:- “The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji: AIR 1952 SC 16: “Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer