This article is written by Ms Aporva Shekhar from KIIT School of Law. This article is a brief analysis of the recent controversy relating to the appointment of S Jaishankar to the Rajya Sabha and the position of law.

Introduction

Jaishankar is the External Affairs Minister whose election to the Rajya Sabha in July 2019 was contested. His election and that of Jugalji Thakor was challenged by three Congress leaders, Chandrikaben Chudasama, Gaurav Hemantbhai Pandya and Paresh Kumar Dhanani. The situation arose because two MPs (Member of Parliament) from Gujarat, Smriti Irani and Amit Shah who were the members of the Rajya Sabha, won elections to the Lok Sabha and therefore, left their seats vacant. In order to fill this vacancy, the Election Commission of India decided to hold separate elections for the two vacancies that were created by the resignation of Smriti Irani and Amit Shah in May 2019. This decision of the Election Commission and the subsequent appointment of S. Jaishankar was challenged to be violative of statutory rules by the Congress party member Gaurav Pandya.

Summary of the matter

A career diplomat, Subrahmanyam Jaishankar played a crucial role in shaping US and China policies for India. He retired from the Indian Foreign Service in 2019. After retirement, S. Jaishankar joined the TATA Sons group as president of global corporate affairs. After the Modi government won a fresh mandate in the 2019 elections, S.Jaishankar returned to government service as the External Affairs Minister. The Rajya Sabha ministers, Smriti Irani and Amit Shah were MPs from Gujarat who resigned in May 2019 after winning the Lok Sabha election. After their resignation, the Election Commission had to fill up the two vacant seats that were left, so it decided to hold by-elections and notified the same to be scheduled for Rajya Sabha on 5th July, 2019. Since there were two vacancies, MLAs (Member of Legislative Assembly) could vote separately for both the positions and the BJP contestants won the seats by securing 104 votes and S. Jaishankar and Jugalji Thakor were appointed to the Rajya Sabha.

The conflict and the problem

Chandrikaben Chudasama and Pareshkumar Dhanani were Congress nominees who lost the election to S. Jaishankar and Jugalji Thakor. It was also reported in the by-elections, MLAs Dhaval Zala and Alpesh Thakor, who later quit the Congress party, had cross-voted, attracting the fire of fellow party members who were eyeing the Rajya Sabha seats and the election. The MLAs are supposed to list their preferences if more than one candidate is to be elected since the Rajya Sabha elections are held on the basis of a single transferable voting system. The decision of the Election Commissioner to hold separate elections to fill the vacancy reduced the chances of the Congress party to secure the seats in the election. Congress leaders filed multiple petitions to the Gujarat High Court and the Supreme Court in an attempt to invalidate the appointment of S. Jaishankar and Jugalji Thakor. They contended that the Election Commission’s elections were violative of the Constitution, Conduct of Election Rules, 1961, and the Representation of People (RP) Act, 1951 and therefore were illegal and void. The appointment of Jugalji Thakor was challenged by Congress nominees Chandrikaben Chudasama and Paresh Kumar Dhanani, and the appointment of S. Jaishankar was challenged by Gaurav Hemantbhai Pandya, another Congress party member based on statutory and constitutional legality. The contention of all the petitioners challenging the validity of the separate by-elections held by the Election commission for Rajya Sabha was that it was violative of rules.

Related provisions to Rajya Sabha elections in Indian Law

The relevant provisions that need to be considered with reference to the subject matter of this article are as follows:

• The Constitution of India;
• Representation of People Act, 1951.

The Constitution of India

Article 80(4) of the Constitution is relevant in this context as it deals with the composition of the Rajya Sabha, and the sub-article (4) specifically deals with the election of the members of the Rajya Sabha and the scheme of such an election. The Article states that the representative for every state shall be elected by the elected members of the legislative assemblies for the Rajya Sabha, which should be in accordance with the rules and orders. It shall also be governed by the system of proportional representation along with single transferable votes for voting.

Representation of People Act, 1951

• Section 12 of this Act deals with the notification for biennial elections for the Rajya Sabha. It states that the office of the President, on the recommendation of the Election commission of India, through the publication of one or more notifications calls upon the members of the electoral college or the legislative assembly of the concerned state to elect members for the purpose of filling up a vacancy in accordance with the rules and provisions of the Act mentioned above. There is also a proviso to this section which states that no notice shall be issued more than three months before the expiry of the term of office of the retiring member concerned under this section.
• Section 147 of the said Act deals with the casual vacancies in the Rajya Sabha. It states that when the seat of an elected member of the Rajya Sabha becomes vacant or is declared void before the expiry of the term of their office, the Election Commission may call upon the members of the electoral college or the legislative assembly as the case may be by a notification in the Official Gazette of India to elect a person for the purpose of filling up the vacancy by such time as may be stated in the notification, and the rules and orders shall be applicable in relation to the election of such member to fill up the vacancy as far as may be.
• Section 151A focuses on the requirement of the Election Commission to fill up casual vacancies, it mandates that the Election Commission must fill up any casual vacancy created as mentioned in Section 147 in the House of Parliament or the State Legislature as the case may be, through by-elections within six months’ time starting from the date of the vacancy. There is also a proviso to this Section which states that the remaining term of the vacancy of the seat occupied by a member should be one year or more.
• Section 39(1) of the abovementioned Act is relevant considering the subject matter as it deals with the nomination of candidates. Clause (1) deals with notifications that shall be made after the electoral college or the members of the legislative assembly have been called upon for the elections. It states that as soon as the notification calling upon the electoral college or the members of the legislative assembly is issued the Election Commission should also publish another notification in the Official Gazette for :
  • The last date to make nominations which shall be seven days after the first-mentioned notification and if that day is a public holiday then the next day which is not shall be the last one.
  • The day after the last day to make nominations shall be the day for scrutinizing such nominations and if that is a public holiday then the next day which is not, shall be the one.
  • The second day after the date of scrutiny shall be the last day for the withdrawal of candidature and if that day is a public holiday then the next day which is not shall be the last.
  • Seven days after the last day to withdraw the candidature, the date when the poll shall be taken, if necessary, should be fixed.
• Section 56 of the abovementioned Act provides for the fixing of the time for the election poll, this section states that the hours during which the poll shall be taken will be fixed by the Election Commission which shall be published in the prescribed manner. There is also a proviso under this section, which states that a total period allotted for the polling on any one day should not be less than eight hours for the election in a parliamentary or assembly constituency.
• Section 100 of the abovementioned Act enlists the grounds on which an election can be declared void, with reference to the subject matter of this Article, the sub-clauses (d) and (iv) are important, which states that if the High Court is satisfied that the election of returned candidate has been materially affected because of any non-compliance of any rules, orders or provision of the Constitution or the above mentioned Act, it shall declare the returned candidate’s election to be void.

The decision of the Gujarat High Court

The Gujarat High Court rejected the petition of all three Congress members challenging the validity of the elections of S Jaishankar and Jugalji Thakor. In the case of Subhramanayam Jaishankar v. Gaurav Hemantbhai Pandya (2020), the High Court clarified its point of view regarding the questions raised in the case. In its judgement, the Court stated that the original petitioners failed to disclose their cause of action and that was violative of Sections 86 and 87 of the Representation of People Act. The High Court also observed that the original petitioners failed to present any provision of law that mandated the Election Commission to conduct single by-elections to fill up casual vacancies.

The Congress leaders in their petition challenged the validity of the Election Commission’s practice to conduct by-elections as separate elections are incorrect, which is a consistent precedent followed by the Election Commission. In response to this, the Court opinioned that the averments made by the original petitioner could not justify the non-compliance of the specific provisions of the Constitution and Section 100(d)(iv) of the abovementioned Act. The Court stressed that the failure to mention the grounds upon which had to be disclosed under Section 100 had amounted to non-compliance of Section 81 of the abovementioned Act and therefore, the Court dismissed the said election petition according to Section 86 of the abovementioned Act. 

Appeal to the Supreme Court

After their petition was rejected by the Gujarat High Court, the Congress leaders moved the Supreme Court in order to invalidate the election of S Jaishankar to the Rajya Sabha. The senior advocate and Congress member Kapil Sibal represented Gaurav Hemantbhai Pandya in the Supreme Court. Kapil Sibal contended that there was a serious question of law involved in the concerned appeal regarding the Election Commission’s power to hold separate by-elections to fill up casual vacancies in the Rajya Sabha simultaneously. The Congress leaders filed multiple petitions challenging this election, so for expediency, the Supreme Court bunched together all the petitions concerning the same subject matter.

In response to the multiple petitions filed by the Congress members, S. Jaishankar stated that they were misusing the process of law by filing multiple petitions and stated in his affidavit that no rules were flouted by the procedure adopted by the Election Commission to conduct the elections. Senior advocate Harish Salve represented S. Jaishankar in the Supreme Court before the bench of CJI SA Bobde, JV Ramasubramanian and J. AS Bopanna. The Supreme Court stated that it would pronounce an authoritative decision to clarify its stance regarding the power of the Election Commission to issue separate notifications for conducting by-election for filling up regular and casual vacancies in the Rajya Sabha. The decision has not yet been pronounced.

Conclusion

The centre of the entire controversy was the decision of the Election Commission to conduct by-elections separately for the two Rajya Sabha seats. The polls for the by-elections were conducted on the same day but separately which irked the Congress members as they failed to capture the seats. The Congress members were positive that if the elections for the seats were not conducted separately, they would have won at least one Rajya Sabha seat based on the single transferable vote system. But they failed when the elections were conducted separately and both the seats were bagged by the Bharatiya Janata Party members. They then approached the courts to invalidate the elections, but when the High Court rejected their election petition they approached the Supreme Court.

References

• https://www.livelaw.in/top-stories/jaishankar-rajya-sabha-election-supreme-Court-167219
• https://www.barandbench.com/news/litigation/dr-s-jaishankar-rajya-sabha-election-gujarat-supreme-Court
• https://rajyasabha.nic.in/rsnew/manual/2002/9.31.pdf
• https://eci.gov.in/files/file/8819-requirement-of-holding-bye-elections-to-fill-casual-vacancies-in-the-house-of-people-%E2%80%93-clarification/
• https://rajyasabha.nic.in/rsnew/rsat_work/archive/chapter-3.pdf

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