Defection | Tenth Schedule Disqualification Is For Being A Member, Not For Contesting Fresh Election: Allahabad High Court

The Allahabad High Court has held that a legislator who voluntarily gives up membership of his political party incurs disqualification under the Tenth Schedule of the Constitution is only in respect of the House of which he is then a member, and is not thereby barred from contesting an election to Parliament.

It held that Article 102(2) of the Constitution disqualifies such a person only from being a member, and not from being chosen as one.

Article 102(1) of the Constitution lists five grounds on which a person is disqualified both for being chosen as, and for being, a member of either House of Parliament. Article 102(2) provides that a person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.

Paragraph 2(1)(a) of the Tenth Schedule disqualifies a member of a House belonging to a political party if he voluntarily gives up membership of that party.

Dismissing an election petition against the election of Dr. Vinod Kumar Bind from the 78-Bhadohi Parliamentary Constituency, Justice Raj Beer Singh held,

“if a member of Legislative Assembly has voluntarily given up membership of his political party, the disqualification suffered by such person is that he stands disqualified from continuing or for being as Member of such Legislative Assembly, but that disqualification does not disqualify such person 'for being chosen' as a Member of either House of Parliament”.

Bind was a sitting member of the U.P. Legislative Assembly from the NISHAD Party when he filed his nomination for the 2024 Lok Sabha election as a candidate set up by the BJP. He polled 4,59,982 votes against 4,15,910 polled by petitioner Lalitesh Pati Tripathi and was declared elected. He resigned from the Assembly on 14.06.2024, after the result.

Tripathi challenged the election on five grounds. His principal contention was that Bind had never resigned from the NISHAD Party, that his conduct showed he had voluntarily given up its membership, and that he was therefore disqualified from contesting under Article 102(2) read with paragraph 2(1)(a) of the Tenth Schedule.

He further alleged that Bind's nomination was improperly accepted as he had falsely declared himself a BJP candidate in breach of para 13 of the Election Symbols (Reservation and Allotment) Order, 1968. It was urged that the nomination papers of two other candidates, Zia-Ul-Haq and Lalti Devi, were improperly rejected and Bind's candidature was the product of an understanding between the NISHAD Party President and the State unit of the BJP amounting to the corrupt practice of bribery under Section 123(1)(B)(a) of the Representation of the People Act, 1951.

Bind sought dismissal of the petition under Order VII Rule 11 CPC for want of cause of action. It was argued that paragraph 2 of the Tenth Schedule disqualifies a person only from continuing as a member and not from being chosen, so a member of one House may contest a fresh election to another House from the same party or a different one.

Relying on the Supreme Court's decision in Ravi S. Naik v. Union of India, which held that voluntarily giving up membership is wider than resignation and may be inferred from conduct, the Court observed that since Bind had neither resigned from the NISHAD Party nor was shown to be on the BJP's rolls, he appeared to have voluntarily given up his NISHAD Party membership before filing his nomination.

Relying on Rajendra Singh Rana v. Swami Prasad Maurya and Ram Chandra Prasad Singh v. Sharad Yadav, it held that the disqualification is incurred from the date of the act and not from a later decision of the Speaker. It held that Bind therefore stood disqualified from his Assembly membership from that point.

On whether this barred him from contesting the Lok Sabha election, the Court noted that the words 'being chosen' used in clause (1) of Article 102 are absent from clause (2). It relied on K.M. Mune Gowda v. State of Karnataka wherein it was held that disqualification under Article 191(2), the corresponding provision for State Legislatures, operates only on existing membership and does not prevent the person from contesting a subsequent election.

Holding that Article 102 mirrors Article 191, the Court held,

“on the ground of voluntarily giving up his membership of NISHAD party, the returned candidate has not suffered any such disqualification which may affect his right to contest election for Member of Parliament from aforesaid constituency”.

Accordingly, it held that the averments, even if accepted, did not bring the petition within Section 100(1)(a) of the Representation of the People Act, 1951.

The Court also remarked that,

“No doubt the conduct of the respondent / returned candidate to contest election as candidate of BJP, without resigning from NISHAD party or without becoming a member of the BJP, can not be said a healthy practice for Democracy”.

It noted, however, that it was the petitioner's own case that Bind had given up his NISHAD Party membership, and the only consequence of that was the disqualification attaching to his Assembly seat.

On the challenge to acceptance of Bind's nomination and the alleged breach of para 13 of the Symbols Order and Sections 33 and 33A of the Act, the Court held that grounds under Section 100(1)(d)(i) and (iv) require the petitioner to plead how the result of the election was materially affected. Finding only a passing assertion to that effect in the petition, it observed,

“Such bald averment can hardly be termed as material fact to sustain the above referred ground”.

On the rejected nominations, the Court found that the petition did not state the grounds on which the two nominations were rejected, did not claim the petitioner was present at scrutiny, and did not allege that the two candidates objected, sought time, or complained. Noting that neither candidate had filed an election petition, it observed that “It appears that even the petitioner is not aware that on what ground or defect their nomination paper were rejected.”

On bribery, the Court held that a charge of corrupt practice is in the nature of a criminal charge and must be pleaded with precision. It found no averment disclosing the source of the alleged understanding, when or where it was made, that Bind was party to it, or that he received or agreed to receive any gratification, and held the allegations to be speculative.

Holding that the petition disclosed no cause of action on any ground, the Court allowed the application under Order VII Rule 11 CPC and dismissed the election petition.

Case Title: Lalitesh Pati Tripathi v. Dr Vinod Kumar Bind

Counsel for Petitioner :- Narendra Kumar Pandey, In Person, Peeyush Kumar Shukla

Counsel for Respondent :- Jagannath Prasad, Shivendra Kumar Singh, Indra Jit Singh, K.R. Singh

Click Here To Read/Download Order