Timing of nomination of four new members to Rajya Sabha questioned

Advocate objects since it has come a day after issuance of Notification for Election to Vice-President of India in which all four would be Voters

CHANDIGARH –  The nomination of Ilaiyaraaja, Dr. Dharmasthala Veerendra Heggade, Pilavullakandy Thekkeyaparambil Usha and  V. Vijayendra Prasad to Council of States (Rajya Sabha) by the President of India on  July 6, 2022 has been questioned by an Advocate at Punjab & Haryana High Court, Hemant Kumar, who has today written to Election Commission of India  (ECI) and Secretary General of Lok Sabha, who is designated Returning Officer (R.O.) for Election to Office of Vice-President of India.

The Advocate asserted that the above nomination has come a day after the Election Commission of India (ECI) issued the Notification (on July 5, 2022) pertaining to Election to the Office of Vice-President of India. The President of India (through Union Ministry of Home Affairs) via issuance of a Gazette Notification bearing No. S.O. 3109(E) and while exercising powers vested in him by sub-clause(a) of clause(1) of Article 80 of Constitution of India, read with clause(3) of that Article nominated the above four persons to Rajya Sabha to fill the vacancies caused due to retirement of certain erstwhile nominated members of Council of States.

While quoting  Article 66(1) of Constitution of India, Hemant says that the Vice President is elected by the members of an electoral college consisting of the members of both Houses of Parliament in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be by secret ballot

Thus it is crystal clear that not only the Elected Members of both Houses of Parliament but also Nominated Members of Lok Sabha and Rajya Sabha are also eligible to Cast Vote in Election to the Office of Vice-President of India.

As on 5th July, 2022, i.e. on the date of issuance of Notification for Election to the Office of Vice-President of India by ECI, out of total 12 Nominated Members that can be nominated to the Rajya Sabha by the President of India under sub-clause(a) of clause(1) of Article 80 of Constitution of India, read with clause(3) of that Article, there were 5 Nominated Members.

However, with the issuance of Gazette Notification bearing  dated 6 July 2022 as issued by the President of India through Union Ministry of Home Affairs, the total number of Nominated Members in Rajya Sabha has currently risen from 5 to 9.

Be that as it may, the moot but significant point is that if the new four members who have been nominated on 6 July 2022 to the Rajya Sabha by the President of India as mentioned hereinbefore  i.e. a day after ECI issued the Notification for Election to the Office of Vice-President of India, whether all of above four should be allowed to Cast Vote in aforesaid election particularly because they have been nominated to Rajya Sabha by the President of India after the issuance of Notification for the aforementioned Election.

Since in real terms, it is not the President of India on his own but actually the ruling executive (political party/alliance in power) at the Centre which decides (read recommends to the President of India) the nomination of 12 members to the Rajya Sabha who have special knowledge and practical experience in respect of Literature, Science, Art and Social Service. 

Now since in Election to the Office of Vice-President of India, the ruling political party/alliance at the Centre also fields its Party Candidate for that post, would it be appropriate if such ruling political party/alliance be allowed to have new Nominated Members in Rajya Sabha of its choice, who are indeed going to be Electors/Voters in such Election, and more particularly because such nomination of Members is made after  issuance of Notification in respect of such Election ?

Although there is no enforcement of Model Code of Conduct as such during Election to the Office of Vice-President of India which however is enforced during General Elections to Lok Sabha and State Assemblies but nevertheless the spirit of level playing field ought to be complied in Vice-Presidential Election too i.e. in other words, the ruling party/alliance should not be allowed to have an edge vis-a-vis other  political parties/alliances who are in Opposition.

Hemant has urged Chief Election Commissioner (CEC) as well as Secretary-General of Lok Sabha who is designated Returning Officer for Election to the Office of Vice-President of India to take immediate cognizance in this regard and take an appropriate decision accordingly. 

Finally, Hemant has made it clear that he is not in any way questioning the power vested in the  President of India to nominate Members to Rajya Sabha under Article 80(1)(a) of Constitution of India but rather the timing of such nomination i.e. after the  Notification for Election to Office of Vice-President of India has been issued by ECI is in question since such Nominated Members are also Electors/Voters in such Election.