The rise of Yogi Adityanath as a centre of power contenders amongst BJP-RSS leaders seems to baffle the public. Though Yogi was a Thakur, he has also been a mahant for a long time and has openly announced his aim of Hindu rashtra (nation), which is a Constitutional monstrosity. Yogi openly flaunts his Hindu identity and that is why many in the RSS are keen to encourage him. However, there is a serious legal challenge to Yogi’s continuance as Chief Minister and Member of Parliament at the same time. This is a Constitutional conundrum.
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, institution of the Parliamentary 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 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 UP and Member of Parliament at the same time? And if someone argues for it, then that means that he can simultaneously be a CM of UP and Prime Minister of India (as he is already a Member of Parliament). This is a constitutional monstrosity.
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.
The suggestion that Yogi can retain his parliamentary seat for six months—seeking the analogy of 6 months from Article 75(5)—of being elected as a CM 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 PM and CM at the same time, and thus ipso facto cannot be at the same time a CM of UP, may be by factually treating him as MLA under 164(5) of the Constitution; but how does he save his position as Member of 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 at the same time.
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. 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 a Parliamentary seat. To me this argument is totally destructive of what Dicey has pointed out in law and convention of the Constitution, namely, “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 Chief Minister, his seat in Parliament automatically stood vacated and his continuance as MP is, therefore, illegal. I feel that if Yogi does not resign his seat in Parliament forthwith, his right to be CM 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 Lok Sabha and Rajya Sabha and offer an apology for having attended the sittings after taking over as Chief Minister, wherein the Speaker, Lok Sabha, and Chairperson, Rajya Sabha may take a lenient view and only admonish him and thus close the matter. CM Yogi must take this graceful initiative and at the same time maintain the prestige and dignity of the offices of Chief Minister and Member of Parliament.
Justice Rajinder Sachar is a former Chief Justice of the High Court of Delhi.