The mysterious rise of Yogi Adityanath as a centre of power contenders amongst the BJP/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 (the Bollywood perpetual tormentor of the weak, and ruthless in accomplishing his aim) — he was a Mahant for a long time thus establishing easily his credentials to the Brahmanical family leadership of the RSS. Yogi has proved this by openly announcing immediately his aim of a Hindu Rashtra (against all sense of realism and which is a constitutional monstrosity) that is pleasing to Mohan Bhagwat and his coterie.
A win in 2019 could throw Modi beyond challenge and simultaneously weaken the hold of the RSS. Modi has succeeded in creating an illusion of a 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 the 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 of the RSS bosses.
However, there is a serious legal challenge to the continuance of the 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 the biggest State in the country.
Article 164 (4) permits a non-member of the State Legislature to remain a Minister for six months without getting elected. This anomaly is explained by historical necessity when in early periods the institution of the parlia-mentary system in UK was brought in and especially for colonies which were being given legislatures for the first time. As a matter of fact 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 six 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 UP 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 UP and the Prime Minister of India (by getting elected as an MLA of the UP Assembly as he is already a Member of Parliament). How ridiculous and a constitutional monstrosity.
The suggestion, if any, that Yogi can retain his parliamentary seat for six months [seeking the analogy of six 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 UP [may be by factually treating him as an MLA under 164 (5) of the Consti-tution]; but how does he save his position as a Member of Parliament at the same time, because there is no such provision to this effect under the Constitution? In my view, the Consti-tution does not permit a person to be a member of two legislatures of the State and Centre at the same time. The defence to Yogi is not available that he can continue as a Chief Minister after getting elected within six months and therefore can continue as a Member of Parliament for five years or at the minimum for six months. This is perverse logic and destroys the very spirit and purpose of a responsible democratic government. If this argument of Yogi is to be accepted, we can have a laughable queer mixture of the same person being the Chief Minister of a State and the 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 cannot 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 parlia-mentary seat so that he could vote for the BJP in the forthcoming presidential poll since Pranab Mukherjee's term would be over soon. This hardly befits the office of a Chief Minister of the largest State apart from the legality of holding both offices at the same time.
The argument that is being put forward is that there is no specific prohibition against Yogi holding both the State Assembly seat and parlia-mentary seat. To me this argument is totally destructive of what Dicey has pointed out in the 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 the understanding of which object is to secure the conformity of Parliament to the will of the nation. That is why Dicey termed conventions as strong as 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 an MP is therefore illegal. I feel that if Yogi does not resign his seat in Parliament forthwith his right to be the Chief Minister of UP 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 the Lok Sabha and Rajya Sabha and offer an apology for having attended the sittings (after taking over as the Chief Minister UP) wherein the Speaker, Lok Sabha and Chairperson, Rajya Sabha may take a lenient view and only admonish him and impose a token fine of Rs One, and thus close the matter. Would Yogi take this graceful initiative and at the same time maintain the prestige and dignity of the office of a Chief Minister and that of a Member of Parliament?
The author, a retired Chief Justice of the Delhi High Court, was the Chairperson of the Prime Minister's high-level Committee on the Status of Muslims and the UN Special Rapporteur on Housing. A former President of the People's Union for Civil Liberties (PUCL), he is a tireless champion of human rights. He can be contacted at e-mail: rsachar1[at]vsnl.net/rsachar23[at]bol.net.in