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India: Yogi Adityanath being at the same time Chief Minister of U.P. and a Member of a Lok Sabha is illegal

by Rajindar Sachar, 2 May

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The Sunday Guardian Live

The mysterious rise of Yogi Adityanath as a centre of power contenders amongst B.J.P./RSS leaders seems to baffle the public. It is a wrong assessment that he has been installed at the instance of Modi / Amit Shah. They are too politically astute not to create another power centre against themselves.

Though Yogi was no doubt a Thakur (bollywood perpetual tormentor of the weak, and ruthless in accomplishing his aim) – he was a Mahant for long time thus establishing easily his credential to Brahamanical family leadership of RSS. Yogi has proved this by openly announcing immediately his aim of Hindu Rashtra (against all sense of realism and which is a constitutional monstrosity) but is pleasing to Mohan Bhagwat and his coterie.

A win in 2019 could throw Modi beyond challenge and simultaneously weakening of hold of RSS. Modi has succeeded in creating an illusion of development man who by his oratory conceals his total communal stance and anti Minorityism. But Yogi on the other hand flaunts Hindu fanaticism and that is why RSS is keen to keep him as an alternative. It is a clear signal by Bhagwat and his coterie to Modi that an alternative is being created to him, if he is too neglectful to RSS bosses.

However there is a serious legal challenge to the continuance of existing position of Yogi as a Chief Minister and Member of Parliament at the same time. This is a constitutional conundrum which ill befits a Chief Minister of biggest State in the country.

Article 164(4) permits a non member of state legislature to remain a Minister for 6 months without getting elected. This anomaly is explained by historical necessity when in early periods institution of the Parliamentary system in U.K. was brought in and especially for colonies which were being given legislatures for the first time. As a matter of fact that Ivor Jennings in his “Cabinet Government” has pointed out “that the House of commons is however critical of such exceptions”.

Article 75(5) makes a similar provision for automatic vacation of a Central minister at the expiry of 6 months unless he is elected to parliament. This shows that these are two distinct bodies and separate provisions are applicable to each. This has no applicability for a situation like that of Yogi - how then is it possible for Yogi to continue as a Chief Minister of U.P. and Member of Parliament at the same time. And if someone argues for it, then it automatically means that he can simultaneously be a Chief Minister of U.P. and Prime Minister of India (by getting elected a MLA of U.P. Assembly as he is already a Member of Parliament.) How ridiculous and a constitutional monstrosity.

The suggestion if any that Yogi can retain parliamentary seat for 6 months (seeking the analogy of 6 months from Article 75(5)) of being elected as a Chief Minister cannot stand scrutiny, because there is no such provision in law on the subject. Either the position in law can be that he cannot both be a Prime Minister and Chief Minster at the same time and thus ipso facto cannot be at the same time a Chief Minister of U.P. (may be by factually treating him as MLA under 164(5) of the constitution;) but how does he save his position as member of the parliament at the same time, because there is no such provision to this effect under the constitution. In my view Constitution does not permit a person to be a member of two legislatures of state and Central at the same time. The defence to Yogi is not available that he can continue Chief Minister after getting elected within six months and therefore can continue as a member of parliament for 5 years or at the minimum for 6 months. This is perverse logic and destroys the very spirit and purpose of responsible democratic government. If this argument of Yogi is to be accepted we can have a laughable queer mixture of a same person being a Chief Minister of a State and Prime Minister of India. Can any more quixotic illustration be imagined.

Under our Constitutional scheme one can take advantage under either 164(5) or 75(5). You can not invoke both, and therefore ipso facts once elected as a Chief Minister he ceases to be a Member of Parliament. Yogi is being asked to do this ill befitting role of keeping his Parliamentary seat so that he could vote for B.J.P. in the forthcoming presidential poll following Mr. Mukerjees term being over soon. It hardly befits the office of a Chief Minister of the largest state apart from the legality of holding both offices at the same time.

This argument is put forward by saying there is no specific prohibition against Yogi holding both State Assembly seat and parliamentary seat. To me this argument is totally destructive of what Dicey has pointed out in law and convention of the Constitution, namely (pg. 430) “That the conduct of the different parts of the legislature should be determined by rules meant to secure harmony between the action of the legislative sovereign and the wishes of the political sovereign” – This would mean that all laws must be to effectuate the will of the people who are sovereign under our constitutional set up. The conduct of the legislature should be regulated by understanding of which object is to secure the conformity of parliament to the will of the nation. That is why Dicey termed conventions as a strong law.

I am of the view that the moment Yogi became the Chief Minister his, seat in parliament automatically stood vacated and his continuance as M.P. is therefore illegal. I feel that if Yogi does not resign his seat in parliament forthwith his right to Chief Minister of U.P. would come to an end.

If however a lenient view is to be taken because of the somewhat uncertainty of law, the least that Yogi should do is to appear before Lok Sabha and Rajya Sabha and offer apology for having attended the sittings (after taking over as Chief Minister U.P.) wherein the Speaker, Chairperson, Lok Sabha, Rajya Sabha may take a lenient view and only admonish him and impose a token fine of Rs. One, and thus close the matter. Will yogi take this graceful initiative and at the same time maintain prestige and dignity of the office of a Chief Minister and Member of Parliament.

Rajindar Sachar

Dated: 26/04/2017

New Delhi

P.S.

The above article from The Sunday Guardian Live is reproduced here for educational and non commercial use