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As soon as the results of Legislative Council elections have come in the politics of Bihar, a big new constitutional and political storm has arisen. In the recently concluded by-elections, the heavy sword of disqualification has hung over Independent MLC Banshidhar Brajwasi, who won from Tirhut Graduate Constituency, and Independent MLC Dr. Rahul Raj, who won from Saran Teacher Constituency. After the claims and pictures of Bharatiya Janata Party (BJP) reaching the state office and joining the party, Rashtriya Janata Dal (RJD) and Prashant Kishor’s Jan Suraj Party have termed this entire incident as a blatant violation of the 10th Schedule of the Constitution (anti-defection law). The opposition and Jan Suraj have made it clear that they are fully prepared to file an application before the Chairman of the Legislative Council as well as take the matter to the Supreme Court and Patna High Court. In such a situation, the question is arising that if this matter reaches the court, will the membership of both the MLAs be saved or will they be disqualified?
#1 Both independent MLCs reached BJP office after winning the elections, created ruckus as soon as pictures came out
The entire controversy started when both the newly elected MLCs Banshidhar Brajwasi and Rahul Raj reached the BJP state office in Patna even before taking the official oath of membership of the Legislative Council. Pictures and videos of his welcome there in the presence of State President Sanjay Saraogi and Deputy Chief Minister and other senior leaders went viral on social media. In the initial statements, both the leaders talked about taking membership of the party. However, as soon as the opposition parties started the move to cancel his MLC membership under the anti-defection law, Banshidhar Brajwasi immediately changed his stance and clarified through Facebook Live that he has not joined BJP, but has only given his support to the government. Whereas Rahul Raj is largely silent on this entire controversy.
#1 What does the anti-defection law of the Constitution say? Why are Banshidhar and Rahul Raj in trouble?
According to constitutional experts and Para 2(2) of the Tenth Schedule of the Constitution of India (Anti-Defection Law), if a person wins an election as an independent candidate and takes formal membership of any political party after the declaration of the election results, he becomes disqualified to remain a member of the House with immediate effect. Only nominated members get 6 months to join a party, whereas this relaxation does not apply to independent MPs, MLAs or MLCs elected by the public. Lawyers for RJD leaders Tejashwi Yadav and Jan Suraj argue that both the MLCs had publicly admitted to taking membership of BJP and there is evidence (video and photographs) of the same, which provides sufficient legal basis to disqualify them.
#1 Jan Suraj and RJD reached the Chairman, warning to knock on the door of Supreme Court if decision is not taken in 3 months
Prashant Kishor’s Jan Suraj Party has adopted a very aggressive stance in this entire matter. Jan Suraj’s delegation met the Chairman of Bihar Legislative Council, Prof. Met Dr. Ramvachan Rai and filed a written complaint demanding disqualification of Banshidhar Brajwasi and Dr. Rahul Raj. Jan Suraj’s legal advisors have made it clear that under Para 6(1) of the 10th Schedule of the Constitution, the Speaker has the right to take the final decision on disqualification. However, according to the precedent of the Supreme Court, if the Chairman does not take a final and impartial decision on this application within 3 months, then the party will immediately file a writ petition in the Supreme Court and Patna High Court in this matter.
#1 What legal equations can arise if you go to court? What are the options available to both the MLCs?
If this case goes to court, the legal battle will mainly revolve around the technical evidence of ‘Formal Joining’ versus ‘External Support’. If BJP and both the MLCs are successful in proving that they never filled the official party form, did not sign in the party register and had only expressed support for the government, then they may get relief. On the contrary, if the video evidence given by the opposition before the court and the initial press note of the BJP in which they claimed to have taken membership of the BJP are accepted as authentic, then it is considered certain that both the MLAs will lose their membership. At present, the political pundits and general public of entire Bihar are keeping a close eye on this unprecedented legal and political conflict.