Five ways the order disqualifying Sharad Yadav from Rajya Sabha is a watershed

Vice President and Rajya Sabha Chairman Venkaiah Naidu's order disqualifying Sharad Yadav from the Rajya Sabha is a landmark judgment in many ways. Perhaps that is largely because the case's background itself was complex, marked by Bihar Chief Minister Nitish Kumar's second U-turn in four years.

As presiding officer of the upper house, the question Naidu faced was essentially whether to cancel membership on the grounds that the concerned member had challenged the decision of his party chief. The larger question looming over the controversy is does a parliamentary democracy like India allow space for dissent within a party?

It must be noted that Yadav's dissent was no ordinary protest. What he had essentially challenged was the prerogative assumed upon himself by Kumar of forging and breaking alliances at will. If Yadav did not agree with Kumar's switch from the Grand Alliance to the NDA, what recourse did he have is also the question germane to this case.

Here are five reasons this order represents a watershed moment in parliamentary practice in India -

1. Not sending the petition to Privileges Committee –

The chain of events began with a petition filed before Naidu by Leader of the Janata Dal (United) in Rajya Sabha, RCP Singh. The petition sought Yadav's disqualification from the House under the Tenth Schedule to the Constitution and also that his seat be declared vacant.

Ordinarily, such petitions are first sent to the Rajya Sabha Committee of Privileges but Naidu said he decided against that convention because 'procedural requirements' of the committee would have delayed the decision in the matter. He appears to have ignored the significance of collective decision-making in the parliamentary system represented by the Committee system. It is quite possible that if the Committee would have heard the matter, many different arguments with reference to the case might have come up. If this logic of 'committees delaying decisions' is extended, the entire committee system can be abolished.

2. Not granting enough time to respondent –

The order reveals that Yadav was asked to respond to the petition on 11 September 2017 and that he responded on 15 September seeking an extension of one month time for providing his comments. However, Naidu granted him extension only till 25 September, “in the interest of justice”.

Purportedly, Naidu says he did this to save time because wanted to deal with the case expeditiously. However, when the matter to be decided is as serious as that of disqualification from a House of the Parliament, was one month too long a time for careful consideration of facts and arguments?

3. Not allowing respondent to bring advocates –

Naidu has also said that Yadav requested to allow him to appear for the oral hearing accompanied by a team of advocates. Yadav's arguments appear compelling. He had argued that “the hearing in any matter under the Tenth Schedule is in the nature of quasi-judicial proceedings and for this purpose, the Speaker/Chairperson has been held to be a Tribunal by the Supreme Court”.

Also, “the proceedings before this Tribunal has all the trappings of a Court since the issue is taken up only on a complaint made to the Chairman and the necessity to be represented through Advocates arises as the matter involves complicated issues of constitutional law requiring interpretation of the provisions of the Tenth Schedule.”

Yadav also pointed out that there was no bar in the Rules against a member appearing before the Chairman through an Advocate. However, Naidu said he denied that request because there was neither any precedent nor any provision to allow it.

4. Interpreting “voluntarily giving up membership of the party” –

This was the crux of the entire exercise. The disqualification was dependent upon it being proved that Yadav had voluntarily given up the membership of JD(U). Naidu himself has mentioned in the beginning of his order that Yadav had asserted in his response that he was a founding member of the JD(U), remained committed to its principles, continued to be its member and never intended to give up, least of all voluntarily give up, the membership of the party.

Naidu noted that 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 of the membership of the party'.

However, he took the help of several previous cases to come to the conclusion that Yadav had indeed given up his membership voluntarily. He said several SC judgments, as well as some previous orders by the Privileges Committee, have held that “the words 'voluntarily given up his membership' are not synonymous with 'resignation' and have a wider connotation”.

He said, “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.”

This is a matter of Constitutional law and its interpretation along with understanding the actual conduct of politics.

5. Rule of the majority –

This is probably the most disturbing part of the order. Naidu has categorically held that “the voice of the majority will have to be accepted”. He has also opined that “if a member of any political party starts criticising the decisions of his own party publicly, after the decision has been taken, and goes to the extent of attending and addressing the rallies of the rival political parties, it will fall under anti-party activity and in case, the person concerned is a Member of the State Legislature or Parliament, this amounts to voluntarily giving up the membership of the party, thus incurring disqualification under the Tenth Schedule”.

This part of the order will have wide-reaching implications for the place of dissent within parties and the impact of its absence on inner-party democracy.