The Allahabad High Court dismissed the petition filed by Lal Bihari Yadav leader of Samajwadi Party challenging Uttar Pradesh Government notification derecognizing him as the leader of opposition in the U.P Legislative Council.

The Division Bench of Justice Attau Rahman Masoodi and Justice Om Prakash Shukla passed this order while hearing a petition filed by Lal Bihari Yadav.

This proceeding has been initiated under Article 226 of the Constitution of India by the petitioner seeking two fold reliefs;

(i) A direction has been sought in the nature of mandamus commanding the respondents to stay the operation of the impugned notification dated 07.07.2022 by which the recognition of the petitioner as the leader of the opposition in Uttar Pradesh Legislative Council has been withdrawn; and

(ii) A direction has also been sought in the nature of Certiorari, seeking quashing of the said impugned notification dated 07.07.2022 by which the recognition of the petitioner as the leader of the opposition in Uttar Pradesh Legislative Council has been withdrawn.

Article 168 of the constitution of India provides for a Legislature in every state of the country. The same article mentions that where there are two Houses of the Legislature of a State, one shall be known as the Legislative Council (Vidhan Parishad in Hindi) and the other as the Legislative Assembly (Vidhan Sabha in Hindi), popularly known as the upper house and lower house respectively.

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While all the states of India and even some union territories have Legislative Assembly, however the presence of Legislative Council is restricted to only a few larger states, including the state of Uttar Pradesh. As of now, there are six states which have legislative councils namely the state of Andhra Pradesh, Bihar, Karnataka, Maharashtra, Telangana and the State of Uttar Pradesh.

The petitioner Lal Bihari Yadav is an elected member of the Uttar Pradesh Legislative Council since 2020 (Annexure-3 of the writ) and also a candidate of the political party, the Samajwadi party. The petitioner was recognized as a leader of the opposition in the Legislative Council (Vidhan Parishad) under section 2(h) of the Uttar Pradesh State Legislature (Members, Emoluments and Pension) Act, 1980 vide a letter dated 27.05.2022 issued by the Principal Secretary, Vidhan Parishad, Uttar Pradesh.

Apparently, no reason or any criteria have been mentioned in the said letter relating to the appointment of the petitioner as the “Leader of the Opposition” and the only reference made in the said letter is that the petitioner is being appointed as “Leader of Opposition” in terms of section 2(h) of the Act.

It is the case of the petitioner that as on 05.07.2022, the number of members of Samajwadi Party in Uttar Pradesh Vidhan parishad was 12 (Twelve) and it was decreased on 06.07.2022/ 07.07.2022 to 9 (Nine) and as such the petitioner’s recognition as leader of opposition was withdrawn, which according to the petitioner was illegal, unconstitutional and in an arbitrary manner, without affording any opportunity of hearing. Thus, the petitioner has approached the court under the writ petition.

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Mohd Arif Khan, Senior Advocate assisted by K.K Pal for the petitioner, Counsel appearing for the Petitioner while explaining the definition of “Leader of Opposition” as found in section 2(h) of the Uttar Pradesh Legislative Council, 1980, sought to draw pari-materia reference to the meaning of a leader of opposition in the houses of Indian Parliament.

According to him, the leader of opposition is a statutory post and is defined in the salaries and allowances of leaders of opposition in parliament Act, 1977 as the leader of the numerically biggest party in opposition to the government and as such recognised by the Speaker/Chairman.

The Counsel has also drawn reference of definition of leader of opposition as defined in section 2(b) of the Gujarat Assembly (Leader of Opposition) salary and allowances Act, 1979 to contend that even in the said Act, the leader of the opposition has been defined to mean the member of the assembly who is for the time being the leader in the assembly of the party in opposition to the state government having the greatest numerical strength in the assembly.

Gaurav Mehrotra, counsel appearing for the respondents has vehemently opposed the writ petition and filed a Convenience Compilation/ primary point of Arguments.

Mehrotra has resisted the writ filed by the petitioner on several grounds. However, the fulcrum of his argument was basically on four points namely (i) Jurisdiction/power and authority of the Chairman of the Uttar Pradesh Legislative Council to recognize / derecognize the Leader of Opposition; (ii)The writ petition being not maintainable against the impugned order dated 07.07.2022; (iii) Merits of the Impugned order dated 07.07.2022; (iv) Petitioner cannot claim the position of leader of opposition as a matter of right and opportunity of hearing.

The Court said that,

In the understanding of the Court, our Constitution while defining “State” in Article 12 of the Constitution has included not only the Government but also the Parliament of India and Legislature of each of the States. The mention of the phrase “Parliament of India and Legislature of the state” has special significance. From time-to-time controversy has arisen as to whether the Legislature while exercising its functions under the Constitution is subject to judicial scrutiny by courts. On behalf of the Legislature, it has been always asserted that it has the inherent right to conduct its affairs without interference from any court of law and it is the sole Judge of its own procedure as being sovereign in its own sphere.

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However, now in view of a series of judgments of the Apex Court it is almost established that the Legislature in India is not a sovereign body uncontrolled and with unlimited powers and in many respects their actions can be a matter of judicial scrutiny.

The Court further said that,

In this facts & circumstances, apparently Section 2(h) of the Uttar Pradesh State Legislature (Members’ Emoluments and Pension) Act, 1980 defines ‘Leader of Opposition’ as the member of the Assembly or the Council who is for the time being recognized as such by the Speaker, or the Chairman, Deputy Chairman or Parliamentary Secretary. What is the scope of the power of the Speaker while recognising a person as the leader of opposition?

In the Act there is no indication as to what factors have to be taken into consideration by the Speaker or the chairman for the purpose of recognition. In fact, none of the sections of the Act in terms imposes any duty on the Speaker or the chairman to recognise any Leader of Opposition. This court has already referred to the different provisions of the Act. Its sole object is to make provisions for payment of salary, allowances and certain other benefits to the leader of opposition. With that object in view, the Act gives the definition of leader of opposition.

There is no provision in the Act which enjoins any mechanism or mandates the Speaker to recognise the leader of a party having the greatest numerical strength, to be the leader of opposition. The power of recognition of any such leader by the Speaker is not to be exercised under this Act. If the Speaker recognises any person who is the leader of a party in opposition having greatest numerical strength as the leader of opposition, he is doing so on the basis of the practice prevailing and, therefore, has to follow the other requirements of such practice and convention.

Thus, in the considered view of the court, whenever the Speaker recognises any person as a leader of opposition he does so on the basis of precedent or practice of the Legislature in question, keeping in view at the same time, the definition in the Act, If the basis of recognition is not the Act in question but the practice prevailing then he has to follow the practice of recognising the leader of an opposition party which has not only the greatest numerical strength as required by the definition in the Act, but has also one-tenth of the total membership of the House. In that event, it is difficult to hold that the impugned decision is illegal or unconstitutional.

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“In view of the discussion and the prevailing law, the petitioner does not have an inalienable right to be appointed or to continue as Leader of Opposition. The Uttar Pradesh State Legislature (Members’ Emoluments and Pension) Act, 1980 does not prescribe any mechanism for recognising a leader of opposition. The Chairman of the Vidhan Parishad was not bound to be guided only with the criteria of recognising the leader of an opposition party, which has the greatest numerical strength. The rules provide for discretion of the Respondent no1 (Chairman /Sabhapati U.P Legislative Council Vidhan Bhawan Lucknow) to recognize and/or de-recognise a Leader of Opposition. The reliance of the Respondent no 1 on rule 234 of the Rules of Procedure and Conduct of Business Rules, 1956 is a fair & judicious exercise of discretion in derecognising the petitioner as leader of opposition and is also in conformity to the precedent and practise of the legislative council.

Accordingly, for all the aforesaid reasons, we do not find any infirmity or violation of constitutional provisions in the impugned order dated 07.07.2022″, the Court observed while dismissing the petition.

The Lucknow bench of the Allahabad High Court on Monday ordered the release of Samajwadi Party leader Chhavi Nath Yadav on bail. The order was passed by Justice Suresh Kumar Gupta while hearing a petition from the politician from the Pratapgarh district.

The appeal was preferred under Section 14 (A) (2) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 against the order dated January 5, 2021, passed by Special Judge, (SC/ST Act), Pratapgarh, passed in second bail application in a case under Sections – 147, 148, 149, 327, 323, 504, 506, IPC and Section 3 (1) (da), 3 (1) (DHA) 3 (1) (Chha), 3 (2) 5, 3(2)5a SC/ST Act, Police Station Manikpur, District Pratapgarh whereby the bail application of the applicant had been rejected.

The counsel for the applicant has submitted that the applicant is innocent and has been falsely implicated in this case and further submitted that initially the FIR was lodged by the informant against the applicant and co-accused under Sections 147, 148, 149, 323, 504, 506 IPC & Section 3 (1) (da), 3 (1) (DHA) and 3 (2) 5a SC/ST but during an investigation without any evidence the case was amended and two sections were added, i.e., Section 3 (2) (VII) and Section 3 (2) (V) SC/ST Act.

The counsel for the applicant further submitted that as per FIR the incident took place on September 10, 2020, and FIR was lodged on September 11, 2020, and FIR was delayed by 30 hrs but no plausible explanation has been given. Although in the case three persons were injured, as per perusal of the injury report it transpires that all the injuries are simple in nature.

He further submitted that although as per allegation the applicant, as well as other persons, were armed with deadly weapons but no deadly weapon was used by the applicant as well as co-accused.

It is further submitted that other co-accused have already been granted bail by the Sessions Court only on the basis of criminal history. The bail application if the applicant is rejected by the lower Court.

Counsel for the applicant said that only on the basis of criminal history bail application could not be rejected but role of the applicant should be seen before disposal of the bail. Applicant is in jail since September 12, 2020 although the appellant have criminal history of 37 cases.

It is clearly explained by the applicant and further submitted that in most of the cases either the appellant is acquitted or he is on bail. Counsel further submitted that if the applicant is released on bail, he would not misuse the liberty of bail and is ready to co-operate in the trial.

The counsel for the respondents vehemently opposed the prayer for bail and submitted that the applicant have several criminal history and if he is released on bail then he will further indulge in criminal activities and he can also extend threat to the witnesses.
Since, there is a history of several cases, hence, the applicant does not deserve to be released on bail.

Additional Government Advocate for the State has vehemently opposed the prayer for bail and have submitted that the offence is serious in nature and applicant has no ground to be released on bail and the bail application is liable to be rejected.

“After hearing the rival submissions of the parties, and perused the record, without expressing any opinion on merits, I find that it is a fit case for grant of bail of the applicant”, the Court observed.

The Court set aside order dated January 5, 2021 and allowed the Appeal.

The Court ordered that “Let applicant (Chhavi Nath Yadav) be enlarged on bail in the case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned subject to following additional conditions, which are being imposed in the interest of justice”.

(i) The appellant shall not tamper with the evidence of witnesses and shall not commit any offence.

(ii) The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(iii) The applicant shall remain present before the trial court on each date fixed, either personally or through her counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iv) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the appellant fails to appear before the Court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

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(v) The appellant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge, and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial Court absence of the appellant is deliberate or without sufficient cause, then it shall be open for the trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with the law. 

Source: ILNS