Voting in Presidential Poll out of bounds for defection law

Voting in Presidential Poll
Out of bounds for defection law

By Amba Charan Vashishth


On June 28, 2007 Congress sought disqualification from membership of Rajya Sabha of suspended Congress Member, Mr. K. Natwar Singh, on the ground that he had proposed the name of Vice-President, Mr. Bhairon Singh Shekhawat as a candidate for the post of President of India.

Congress had throughout been playing politics with him. It suspended him about a year back but did not expel him from the membership of the Congress Parliamentary (Legislature) Party just to keep a tab on his activities within the House, because even as a suspended member he has to fall in line with the whip issued by the Party. It turned a blind eye to Mr. Natwar Singh releasing, alongwith Mulayam Singh Yadav, the Samajwadi Party’s election manifesto for Uttar Pradesh. He extensively campaigned for Mulayam Party against his own Congress Party.

The Congress plea is not likely to stand the test of law in view of the provisions of the Tenth Schedule (Articles 102(2) and 191(2) of the Constitution of India. In the case of Mr. Natwar Singh, only provision No. 2 in the Tenth Scheduled can be invoked: that “..a member of a House belonging to any political party shall be disqualified for being a member of the House –
(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs ….”.

Firstly, proposing the name of Mr. Shekhawat does not amount to “voting in such House contrary to any direction issued by the political party (Congress in this case)”. Even otherwise, till the time he proposed the candidature, no “direction” had been issued by the Congress Party to any member of the House, not to speak of, to Mr. Natwar Singh.

It also needs to be understood that MPs and MLAs are just voters to the election of the President as they constitute the “electoral college” for the purpose in terms of the provisions of Article 54 of the Constitution. Exercising their right to vote for the office of the President does not constitute “voting in such House” as it is through a secret ballot.

The voting takes place not in the Parliament in a meeting presided over by the Speaker of Lok Sabha or by Chairman of Rajya Sabha or respective Speakers of State legislatures. It is the Election Commission -- and not the Speaker or the Chairman -- who appoints the Presiding Officer for election to the post of President. It is, again, not the Speaker or the Chairman, who declare the outcome of the voting and the final result. This is done by the Presiding Officer who is, normally and as a matter of precedent and convenience, the Secretary-General of the Lok Sabha or Rajya Sabha.

Since the electorate consists of MPs and MLAs, it is but natural that the polling booth too should be within the Lok Sabha and Vidhan Sabha premises. As the Presiding and Assistant Presiding Officers are all officers of the Parliament or Vidhan Sabha, there is no difficulty in identification of the voters also.

Therefore, not to speak of the act of Mr. Natwar Singh proposing the name of Mr. Shekhawat, even taking part in voting for election to the office of President cannot, in any manner, be construed as “voting in such House”. To attract disqualification in terms of the provisions in the Tenth Schedule, the “voting in such House” has to be “voting in” Lok Sabha. Rajya Sabha when the Central and State legislatures are having a sitting of their respective houses presided over by the respecting presiding officer.

At the same time one needs to distinguish between the election of President and that of the Speaker or Deputy Speaker of the House. The former is not elected in a sitting of any House, the latter is elected in a sitting of that particular House. In the latter case, the provisions of Defection Law do get attracted.
Any “direction” issued by any political party for voting for a particular candidate in election to the office of President cannot, therefore, attract the provisions of the Tenth Schedule.