Chairman Rajya Sabha's Right to "casting vote" militates against other provisions in Constitution

Chairman Rajya Sabha's Right to "casting vote" militates against other provisions in Constitution

By Amba Charan Vashishth

The Vice-President of India (Article 89(1) of the Constitution of India) is the ex-officio Chairman of the Council of States (CoS  i.e. Rajya Sabha) who is "elected by the members of an electoral college consisting of the members of both Houses of Parliament "{Article 66(1)}. By virtue of Article 66(2) he "shall not be a member of either House of Parliament or of a House of the Legislature of any State, and if a member of either House of Parliament or of a House of the Legislature of any State be elected Vice President, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as Vice President".

Further,  Article 89(2) stipulates that the CoS "shall, as soon as may be, choose a member of the Council to be the Deputy Chairman…"with  Article 90(a) further stipulating that he "shall vacate his office if he ceases to be a member of the Council".  In other words, while membership of the CoS is mandatory for election to the office of Deputy Chairman, the same is a disqualification for election to the post of Chairman (Vice-President)

The functions, duties and powers of both the Speaker in the House of the People (HoP  i.e. Lok Sabha) and the Chairman in the CoS, for all intents and purposes, are identical in their respective houses. Yet, the Constitution speaks in two contradictory voices as far as the election of the HoP Speaker and of CoS Chairman is concerned.  Membership of the HoP is as much mandatory for election as Speaker as per provisions of Article 93 as is it forbidden for election as Chairman of CoS {Art. 66(2)}.

Article 92(2) does give the Chairman "the right to speak in, and otherwise to take part in proceedings of, the Council of States while any resolution for the removal of the Vice President from his office is under consideration in the Council, but, notwithstanding anything in Article 100", it stipulates that he "shall not be entitled to vote at all on such resolution or on any other matter during such proceedings".

On the other hand, Article 94© provides that the HoP Speaker "may be removed from his office by a resolution of the House of the People passed by a majority of all the then members of the House".  The Speaker or Deputy Speaker are barred from presiding over the sitting of the House when a resolution for his removal "is under consideration under Article 96, yet its clause (2) extends him "the right to speak in and otherwise to take part in the proceedings of the House of the People while any resolution for his removal from office is under consideration in the House…… and be entitled to vote…." On the contrary, Article 92(2) says the Chairman "shall not be entitled to vote at all on such resolution (for his removal from office)… ", obviously because he is not a member of the House.

The provisions in Article 92(2) stand in contradiction and conflict with the provisions of the Article 100(1) which says the Chairman or Speaker, or person acting as such, "shall not vote in the first instance, but shall have and exercise a casting vote in the case of an equality of votes".

A point worth noting is that Article 80 limits the number of seats in the Council of States to 250 (238 "representatives of the States and of the Union territories" plus "twelve members to be nominated by the President in accordance with the provisions of clause (3 ).

It is relevant to quote Article 88 which though confers on every Minister and the Attorney General of India "the right to speak in, and otherwise to take part in the proceedings of either House, any joint sitting of the Houses, and any committee of Parliament of which he may be named a member, but shall not by virtue of this article be entitled to vote". This provision is equitable in the sense that it recognizes the right to vote only to an individual who is duly elected a member of the house as per the provisions of  the Constitution.  It is in conformity with the constitutional provisions that ministers who can be from either house of Parliament but have the right to vote only in the House of which they are the duly elected members as per the Constitution.

The Chairman's right to casting vote in the CoS {Article 100(1)} is directly in conflict with the denial of his right to vote for a motion for the removal of the Deputy Chairman {Article 92(2)}. He has rightly been denied the right to vote in the latter case because he is not – and cannot be {Article 66(2)} – a member of the CoS.

It is a general rule of equity that a person cannot vote in the Annual General Meeting of a company (or any other organization) of which he is not a shareholder or a member. On the same analogy the Chairman can have no right to a "casting vote" in the CoS of which he is not – and cannot be – a member as per provisions in the Constitution.

The extension of the right to casting vote to the Chairman in the CoS creates an anomalous situation. Article 80 restricts the number of COS members to 250. In the event of all the 250 members being present and voting and there is equality of votes for and against (125 each), with the Chairman exercising his "casting vote" the total number of members present and voting would swell to 251, which is against the provisions of the Constitution  restricting the number of CoS members to 250. Alternatively, suppose the existing strength of CoS at any given time is 240 with 10 seats vacant on any account and there is 120-120 tie on both sides, Chairman's casting would increase the effective strength to 241 which, again, is against the provisions of the Constitution because how can 251 or 241 members cast their vote when the effective strength of the house is 250 or 240 at a given time? The actual number of votes cast can never exceed the total number of votes.

Therefore, extension of the right to exercise his "casting vote" to CoS Chairman (Article 100) is anomalous and against the law of equity. In an eventuality when the HoP is equally divided for and against on a Constitutional amendment bill and it gets carried through the "casting vote" of the Chairman, it may not stand the test of judicial review.

It can create an anomalous and embarrassing situation for the ruling party, opposition and even for our Constitution. At the same time, it creates no problem when the Speaker exercises his right to a "casting vote" in the HoP because he is very much a member of the HoP.

Therefore, while the provision of right of "casting vote" to the Speaker of HoP is unquestionable because he is very much a member of the House, the same right to the ex-officio Chairman of CoS is certainly controvertible and against the spirit of the Constitution and the law of equity as he is not a member of the House and militates against the provisions of Article 80 which restricts the CoS membership to 250.

It is time our law makers ponder over this anomalous situation and rectify the situation lest there is an embarrassing situation for the nation and the country becomes a laughing stock for having made such a contradictory and incongruent provision. It can even be challenged in a court of law.

This article has been published in June 2013 issue of monthly Magazine SOUTH ASIA POLITICS edited by Dr. Subhash C. Kashyap, retired Secretary-General of Lok Sabha.