SANTOSH PRASAD VERMA @ SANTOSH Vs. STATE OF BIHAR

JUDGEMENT

(1.) 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.

(2.) THE petitioner was elected to the Rajya Sabha by the Legislative Assembly of the State of Bihar in 2004 as a candidate of 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 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.

(3.) AFTER receiving the comments of the petitioner as also the Leader of BJP in the Rajya Sabha, the Chairman, Rajya Sabha 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 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.