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.
