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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO.2004 of 2020  

(arising out of SLP (C) No. 25425 of 2018)  

RAM CHANDRA PRASAD SINGH         ...APPELLANT(S)   

VERSUS  

SHARAD YADAV         ...RESPONDENT(S)   

J U D G M E N T  

ASHOK BHUSHAN, J.  

This appeal has been filed against the  

Interlocutory Order dated 11.09.2018 passed by the  

Delhi High Court in C.M. Application No. 27159 of 2018  

filed by the appellant in Writ Petition No. 11102 of  

2017.  By the said application, the appellant sought  

permission to submit additional documents and place  

material on record which has been rejected by the High  

Court.    

2. Brief facts of the case giving rise to this appeal  

are: -

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2.1 The respondent No.1 was elected as Member of  

Parliament (Rajya Sabha) from Bihar on a Janata  

Dal (United) [JD(U)] ticket for a term beginning  

from 08.07.2016 for a period of six years. The  

appellant, a Member of Parliament (Rajya Sabha)  

and leader of JD(U) in Rajya Sabha filed a  

petition before the Chairman, Rajya Sabha on  

02.09.2017 under Article 102(2) read with  

paragraph 6 of the Tenth Schedule of the  

Constitution of India praying that the  

respondent No.1, Member of Rajya Sabha be  

disqualified under the Tenth Schedule of the  

Constitution of India and his seat be declared  

vacant in Rajya Sabha.  The appellant in his  

petition has averred that respondent No.1, who  

was elected to the Rajya Sabha on the ticket of  

Janata Dal (United) from the State of Bihar had  

by his repeated conduct, public/press statements  

against the JD(U) and its leadership and openly  

aligning with the rival political party,  

Rashtriya Janata Dal (RJD), has voluntarily  

given up his membership, thus, acquiring

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disqualification under the Tenth Schedule to the  

Constitution.   

2.2 The Chairman, Rajya Sabha got a copy of the  

petition filed by the appellant forwarded to the  

respondent, who was requested to furnish his  

comments thereon.  The respondent after seeking  

extension of time filed his comments.  The  

Chairman, Rajya Sabha after following the due  

procedure and after giving opportunity of oral  

hearing to the respondent No.1 passed an order  

on 04.12.2017 disqualifying the respondent as a  

member of the House in terms of paragraph 2(1)(a)  

of the Tenth Schedule of the Constitution.    

2.3 Against the order dated 04.12.2017 passed by the  

Chairman of the Rajya Sabha, respondent filed a  

Writ Petition No. 11102 of 2017 in Delhi High  

Court.    

2.4 In paragraphs 27 and 28, the Chairman, Rajya  

Sabha has observed: -  

“27.  After taking into account the  

facts of the case, the comments of

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the respondent and the petitioner,  

the respondent’s oral submission  

during the personal hearing on the  

8th of November, 2017 and the  

observations of the Committee of  

Privileges of the Eighth Lok Sabha  

and Hon’ble Supreme court’s Judgment  

in the 1994 Ravi Naik Vs. Union of  

India case and observations in  

similar anti-defection cases, it is  

crystal clear that by his conduct,  

actions and speeches, the  

respondent, Shri Sharad Yadav, has  

voluntarily given up his membership  

of the political party, Janata Dal  

(United) by which he was set up as a  

candidate for election to the Rajya  

Sabha from the State of Bihar in 2016  

and elected as such member.   

28.  I, therefore, hold that the  

Respondent Shri Sharad Yadav has  

incurred disqualification for being  

a Member of the House in terms of  

paragraph 2(1)(a) of the Tenth  

Schedule to the Constitution of  

India.  He has thus ceased to be a  

Member of the Rajya Sabha with  

immediate effect.  I decide and  

declare accordingly.”     

2.5 The appellant, who was respondent in the writ  

petition filed C.M. Application No. 27159 of 2018  

dated 07.07.2018 praying for seeking permission  

to place additional documents Annexure 1 and  

Annexure 2 filed alongwith the application to be

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taken on record.    

2.6 An affidavit in reply to the above application  

was filed by the petitioner.  In his affidavit,  

the writ petitioner denied averments made in the  

application.  In paragraph 2 of the affidavit,  

following was stated: -  

“2.  That I have gone through the  

contents of the application filed by  

the respondent No.1 seeking  

permission to place additional  

material on record to demonstrate  

some purported post disqualification  

conduct of the petitioner.  I wish  

to deny each and every averment made  

therein and the contents of the said  

application may be deemed to be  

specifically traversed and denied by  

me unless expressly admitted by me  

hereinafter.”  

2.7 In the affidavit, the petitioner has denied that  

he has formed any new political party.  He had  

further averred that he has been wrongly  

disqualified.  It was pleaded that High Court is  

not concerned with the subsequent event which do  

not form subject matter of the writ petition.   

The application filed by the appellant was  

opposed by the writ petitioner.  The High Court

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vide its impugned judgment dated 11.09.2018  

dismissed the application.  After noticing the  

averments made in the application of the  

appellant and the reply given by the writ  

petitioner, High Court gave its reason for  

rejecting the application in paragraph 4, which  

is to the following effect:-  

“4. The scope of the present  

petition is limited to examining the  

legality and the validity of the  

order dated 04.12.2017 passed by the  

Chairperson, Rajya Sabha,  

disqualifying the petitioner from  

being a member of the Rajya Sabha.   

Any event subsequent to the passing  

of the said order, cannot be a  

consideration for this Court to test  

the legality of the said order.”  

2.8 The appellant aggrieved by the above order  

rejecting the application has come up in this  

appeal.    

3. We have heard Shri Ranjit Kumar, learned senior  

counsel and Shri Gopal Singh, learned counsel for the  

appellant. Shri Kapil Sibal, learned senior counsel has  

appeared for the respondent.    

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4. Shri Ranjit Kumar, learned senior counsel submits  

that the subsequent conduct and actions of the  

respondent reaffirms the findings of the Chairman that  

the respondent has voluntarily given up his membership  

of JD(U) from which political party he was elected to  

Rajya Sabha.  It is submitted that on the basis of  

subsequent conducts and actions of the respondent, the  

appellant cannot go to Chairman, Rajya Sabha seeking  

disqualification of the respondent, hence, subsequent  

conducts and actions can be looked into in the writ  

petition and the High Court erred in rejecting  

application of the appellant bringing subsequent/  

additional evidence on record.  It is submitted that  

respondent himself has relied on subsequent events in  

his pleadings.  It is submitted that the respondent has  

subsequently contested the Lok Sabha Election from the  

political party Rashtriya Janata Dal (RJD), which  

clearly proves that he had voluntarily given up  

membership of JD(U) and had joined RJD.  Seeking  

disqualification of respondent is a continuous cause  

of action.  Shri Ranjit Kumar has also relied on Section  

8 of the Evidence Act and submits that both previous

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and subsequent conducts are relevant.   

5. Shri Kapil Sibal, learned senior counsel appearing  

for the respondent refuting the submissions of the  

learned counsel for the appellant contends that High  

Court has rightly rejected the application praying for  

taking on record additional evidence regarding  

subsequent events.  He submits that under Tenth  

Schedule, disqualification is incurred on the day when  

member has voluntarily given up his membership of  

political party from which he was elected.  The  

respondent having been disqualified; he is not a member  

of JD(U) as on date.  The disqualification incurred by  

member under paragraph 2(1)(a) of Tenth Schedule even  

though determined by the Speaker or Chairman  

subsequently, the said adjudication relates to previous  

date when member voluntarily gives up his membership.   

Shri Sibal submits that subsequent conducts and events,  

which has taken place after the order of the Chairman  

are neither germane nor relevant for disqualification,  

which has been pronounced by Hon’ble Chairman.  He  

submits that it is the appellant, who has obtained  

adjournment of the hearing of the writ petition.    

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6. We have considered the submissions of the learned  

counsel for the parties and have perused the record.   

The points which arise for consideration in this appeal  

lie in a very narrow compass.   

7. Whether C.M.P. No. 27159 of 2018 filed by the  

appellant has been erroneously rejected by the High  

Court is the question to be answered.  The writ petition  

filed by the respondent, which is pending in the High  

Court is the writ petition challenging the order of  

Hon’ble Chairman (Rajya Sabha) dated 04.12.2019 holding  

that respondent has incurred disqualification for being  

member of House in terms of paragraph 2(1)(a) of the  

Tenth Schedule of the Constitution.  The grounds on  

which petition was filed by the appellant on 02.09.2017  

for disqualifying the respondent have been noticed in  

the order of the Hon’ble Chairman (Rajya Sabha) to the  

following effect: -  

“In his petition, the petitioner averred  

that the respondent, Shri Sharad Yadav, who  

was elected to the Rajya Sabha on the ticket  

of Janata Dal (United) from the State of  

Bihar on the 8th of July, 2016, had by his  

repeated conduct, public/press statements  

against the JD(U) and its leadership and  

openly aligning with a rival political

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party, namely, the Rashtriya Janata  

Dal(RJD), proved that he has voluntarily  

given up the membership of the party, thus  

becoming subject to disqualification under  

the Tenth Schedule to the Constitution.   

The main contention of the petitioner is  

that the respondent instead of adhering to  

the unanimous decision taken on the 26th of  

July, 2017 by the JD(U) and its President,  

Shri Nitish Kumar to withdraw from the  

Mahagathbandhan and the coalition  

Government formed in Bihar in 2015, started  

anti-party activities by publicly  

denouncing the party’s decision.  He  

campaigned with RJD leaders and workers  

between the 10th and the 12th of August, 2017  

in different districts of Bihar and  

attended the public rally called by the  

rival political party, i.e., RJD, in Patna  

on the 27th of August, 2017 despite written  

directive from Shri K.C. Tyagi, Secretary-

General of the party advising him not to  

attend the rally and also conveying to him  

that his participation in the rally would  

be construed not only against the  

principles of high morality but also as  

voluntarily giving up the membership of the  

JD(U).  The petitioner had annexed  

newspaper clippings, media reports and  

videos as proof of the allegations.”  

8. Paragraph 2(1) of the Tenth Schedule is to the  

following effect: -  

“2. Disqualification on ground of  

defection. — (1) Subject to the provisions  

of paragraphs 4 and 5, a member of a House  

belonging to any political party shall be  

disqualified for being a member of the  

House—   

(a)  if he has voluntarily given up his

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membership of such political party;  

or   

Explanation. —For the purposes of this sub-

paragraph, —   

(a) an elected member of a House shall  be deemed to belong to the political  

party, if any, by which he was set  

up as a candidate for election as  

such member;”  

9. The disqualification is incurred by member of the  

House as soon as he has voluntarily given up his  

membership of such political party.  This Court in Ravi  

S. Naik Vs. Union of India and Others, 1994 Supp (2)  

SCC 641 had occasion to consider the expression  

“voluntarily given up his membership”.  Referring to  

paragraph 2(1)(a), this Court laid down following: -  

“11…………………………………………. The said paragraph  

provides for disqualification of a member  

of a House belonging to a political party  

“if he has voluntarily given up his  

membership of such political party”. The  

words “voluntarily given up his membership”  

are not synonymous with “resignation” and  

have a wider connotation. A person may  

voluntarily give up his membership of a  

political party even though he has not  

tendered his resignation from the  

membership of that party. Even in the  

absence of a formal resignation from  

membership 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.”

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10.  A Constitution Bench of this Court in Rajendra  

Singh Rana and Others Vs. Swami Prasad Maurya and  

Others, (2007) 4 SCC 270 had occasion to consider  

paragraph (2) of Tenth Schedule of the Constitution.   

In the above case, the Constitution Bench held that  

decision by the Speaker taken at a subsequent point of  

time cannot and does not postpone his incurring of  

disqualification by the act of the legislature.  In  

paragraph 34, this court held: -  

“34. As we see it, the act of  

disqualification occurs on a member  

voluntarily giving up his membership of a  

political party or at the point of defiance  

of the whip issued to him. Therefore, the  

act that constitutes disqualification in  

terms of para 2 of the Tenth Schedule is  

the act of giving up or defiance of the  

whip. The fact that a decision in that  

regard may be taken in the case of voluntary  

giving up, by the Speaker at a subsequent  

point of time cannot and does not postpone  

the incurring of disqualification by the  

act of the legislator………………………………………………………  

…………………………………………………………………………………………………………..

The fact that in terms of para 6 a decision  

on the question has to be taken by the  

Speaker or the Chairman, cannot lead to a  

conclusion that the question has to be  

determined only with reference to the date  

of the decision of the Speaker. An  

interpretation of that nature would leave  

the disqualification to an indeterminate  

point of time and to the whims of the  

decision-making authority. The same would  

defeat the very object of enacting the law.

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Such an interpretation should be avoided to  

the extent possible. We are, therefore, of  

the view that the contention that (sic it  

is) only on a decision of the Speaker that  

the disqualification is incurred, cannot be  

accepted. This would mean that what the  

learned Chief Justice has called the  

snowballing effect, will also have to be  

ignored and the question will have to be  

decided with reference to the date on which  

the membership of the legislature party is  

alleged to have been voluntarily given up.”  

11. A recent Three Judge Bench judgment of this Court  

in Shrimanth Balasaheb Patil Vs. Hon’ble Speaker  

Karnataka Legislative Assembly and Others, (2019) 15  

Scale 533 had occasion to consider paragraph 2 of the  

Tenth Schedule of the Constitution of India.  In the  

above case, this Court noticed the objects and reasons  

of the Constitution (Fifty-second Amendment) Act, 1985.   

This Court categorically held that decision of the  

Speaker that a member is disqualified relates back to  

the date of the disqualifying action complained of.  In  

paragraphs 54 and 55, this court laid down following:-  

“54. In addition to the above, the decision  

of the Speaker that a member is  

disqualified, relates back to the date of  

the disqualifying action complained of. The  

power of the Speaker to decide upon a  

disqualification petition was dealt by a  

Constitution Bench of this Court in  

Rajendra Singh Rana v. Swami Prasad Maurya,  

(2007) 4 SCC 270. This Court, reading the

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provisions of paragraphs 2 and 6 of the  

Tenth Schedule, has clearly held that the  

Speaker has to decide the question of  

disqualification with reference to the date  

it was incurred. The Court held that:  

34. As we see it, the act of  

disqualification occurs on a  

member voluntarily giving up his  

membership of a political party or  

at the point of defiance of the  

whip issued to him. Therefore, the  

act that constitutes  

disqualification in terms of para  

2 of the Tenth Schedule is the act  

of giving up or defiance of the  

whip. The fact that a decision in  

that regard may be taken in the  

case of voluntary giving up, by the  

Speaker at a subsequent point of  

time cannot and does not postpone  

the incurring of disqualification  

by the act of the legislator.  

Similarly, the fact that the party  

could condone the defiance of a  

whip within 15 days or that the  

Speaker takes the decision only  

thereafter in those cases, cannot  

also pitch the time of  

disqualification as anything other  

than the point at which the whip  

is defied. Therefore in the  

background of the object sought to  

be achieved by the Fifty-second  

Amendment of the Constitution and  

on a true understanding of para 2  

of the Tenth Schedule, with  

reference to the other paragraphs  

of the Tenth Schedule, the  

position that emerges is that the  

Speaker has to decide the question  

of disqualification with reference  

to the date on which the member  

voluntarily gives up his

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membership or defies the whip. It  

is really a decision ex post  

facto...”  

(emphasis supplied)  

55. As such, there is no doubt that the  

disqualification relates to the date when  

such act of defection takes  

place…………………………………………….”   

12. The decision taken by the Speaker, thus, has to be  

on the basis of conduct or actions taken by member,  

which may amount to voluntarily giving up his  

membership.  The facts and sequence of the events on  

the basis of which Hon’ble Chairman came to the  

conclusion that a person has incurred disqualification  

under paragraph 2(1)(a) of the Tenth Schedule are all  

facts, which had occurred prior to adjudication by the  

Hon’ble Chairman.  In the facts of the present case,  

the Chairman of Rajya Sabha has passed the order on  

04.12.2019 on the claim of the appellant praying for  

disqualification as noticed above.  The foundation of  

order of the Chairman are the facts and events, which  

took place after 26.07.2017.  The petition having been  

filed by the appellant on 02.09.2017, petition has to  

be treated to be founded on facts and events, which

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took place on or before 02.09.2017.     

13. Now, reverting to the C.M. Application No. 27159  

of 2018, we need to note as to what was the additional  

evidence, which was sought to be brought on record of  

the writ petition.  Paragraph 4 and 5 of the application  

contains the details of Annexure 1 and Annexure 2,  

which is sought to be brought on record, which is as  

follows: -    

“4.  That it is respectfully submitted that  

during the pendency of the above matter,  

the petitioner has formed/launched a new  

political party called the “Loktantrik  

Janata Dal” on 18.05.2018 at the Talkatora  

Stadium.  Photographs, video clippings,  

posters and banners are proof of this  

formation and his active role therein.  

Photocopies of the pictures of the  

petitioner are annexed hereto as Annexure  

1 collectively. Video recording of the  

speeches by the petitioner in the said  

event as also some more photographs have  

been extracted in a CD which is annexed  

hereto as Annexure-2.   

5. That the annexures are the true copies  

of their respective originals.”   

14. Paragraph 4 and the Annexures 1 and 2 referred  

therein clearly indicate that what was sought to be  

taken on record was an event which took place on

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18.05.2018 in which event a new political party called  

the Loktantrik Janata Dal was formed/launched.  The  

application which was filed by the appellant seeking  

disqualification of the respondent was filed on  

02.09.2017 in which application, the foundation of  

disqualification of respondent was already laid down.  

The order passed by the Chairman is based on a petition  

dated 02.09.2017 as well as the material and evidence,  

which was brought on record before the Chairman.   

Additional evidence, which is sought to be brought on  

record of the writ petition was not the basis for  

seeking disqualification of the respondent, hence, we  

do not find any error in the order of the High Court  

rejecting the C.M. Application No. 27159 of 2018.   

While upholding the order of the High court rejecting  

the C.M. Application No. 27159 of 2018, we, however,  

make few observations.    

15. An event or a conduct of a person even though  

subsequent to passing of an order of Speaker or  

Chairman ordinarily may not be relevant for determining  

the validity of the order of the Speaker or Chairman  

but in a case where subsequent event or conduct of

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member is relevant with respect to state of affairs as  

pertaining to the time when member has incurred  

disqualification, that subsequent events can be taken  

into consideration by the High Court in exercise of its  

jurisdiction under Article 226.  Justice Hidayatullah,  

(as he then was) speaking for this Court in Mohd. Ikram  

Hussain Vs. State of Uttar Pradesh and Others, AIR 1964  

SC 1625 has made a very pertinent observation with  

regard to acceptance of evidence.  It observed that if  

the Court requires an evidence that can always be  

received.  In paragraph 19, following was laid down: -       

“(19) ………………………All procedure is always  

open to a Court which is not expressly  

prohibited and no rule of this Court has  

laid down that evidence shall not be  

received, if the Court requires  

it…………………………….”  

16. The observations made by the High Court in  

paragraph 4, i.e., “any event subsequent to the passing  

of the said order cannot be a consideration for this  

Court to test the legality of the said order” may be  

generally correct but there can be exception if the  

above statement is treated as statement of law.   

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17.  In a writ petition under Article 226 subsequent  

events can be taken note of for varied purposes.  We  

are reminded of the weighty observation of Justice V.R.  

Krishna Iyer in Pasupuleti Venkateswarlu Vs. The Motor  

& General Traders, (1975) 1 SCC 770, where following  

was observed: -  

“4. ………………………………………………. It is basic to our  

processual jurisprudence that the right to  

relief must be judged to exist as on the  

date a suitor institutes the legal  

proceeding. Equally clear is the principle  

that procedure is the handmaid and not the  

mistress of the judicial process. If a  

fact, arising after the lis has come to  

court and has a fundamental impact on the  

right to relief or the manner of moulding  

it, is brought diligently to the notice of  

the tribunal, it cannot blink at it or be  

blind to events which stultify or render  

inept the decretal remedy. Equity justifies  

bending the rules of procedure, where no  

specific provision or fairplay is violated,  

with a view to promote substantial justice  

— subject, of course, to the absence of  

other disentitling factors or just  

circumstances. Nor can we contemplate any  

limitation on this power to take note of  

updated facts to confine it to the trial  

court. If the litigation pends, the power  

exists, absent other special circumstances  

repelling resort to that course in law or  

justice. Rulings on this point are legion,  

even as situations for applications of this  

equitable rule are myriad. We affirm the  

proposition that for making the right or  

remedy claimed by the party just and  

meaningful as also legally and factually in  

accord with the current realities, the

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Court can, and in many cases must, take  

cautious cognisance of events and  

developments subsequent to the institution  

of the proceeding provided the rules of  

fairness to both sides are scrupulously  

obeyed…………………………………….”  

18. The observations made in paragraph 4 as quoted  

above need not to be read as laying down a law that in  

any case subsequent event cannot be considered for  

testing the legality of the order impugned or for  

moulding the relief in a writ petition under       

Article 226.    

19. In view of the foregoing conclusions, we uphold  

the order of the High Court subject to observations as  

made above. The writ petition before the High Court  

being held up due to pendency of this appeal, we request  

the High Court to dispose of the writ petition at an  

early date.  

20. The appeal is dismissed subject to the observation  

as made above.     

......................J.  

                                ( ASHOK BHUSHAN )  

......................J.  

                                (   M.R. SHAH   )  

New Delhi,  

March 19, 2020.