Swapan Dasgupta ‘Renomination’ to RS After Resignation ‘Constitutionally Wrong’, ‘Unprecedented’

Dasgupta had contested on a BJP ticket from the Tarakeswar seat in the assembly election and lost. He will now return to serve the rest of his original term in the upper house despite having resigned his seat.

New Delhi: Former journalist Swapan Dasgupta, who had resigned from Rajya Sabha and unsuccessfully contested the recent West Bengal assembly elections on a Bharatiya Janata Party ticket, has been renominated to the upper house of parliament by the government.

In March, a day after a political row over him contesting as a BJP candidate while also holding the post of an ‘independent’ Rajya Sabha MP emerged, Dasgupta resigned from the upper house. The timing of his resignation had led to controversy.

Dasgupta contested from the Tarakeswar seat in the assembly election and lost.

“In exercise of the powers conferred by sub-clause (a) of clause (1) of article 80 of the Constitution of India, read with clause (3) of that article, the President is pleased to renominate Shri Swapan Dasgupta to the Council of States to fill the seat which has fallen vacant due to his resignation for his remainder term viz – 24-04-2022,” according to a Home Ministry notification.

Dasgupta’s re-nomination, too, has led to speculation online as to whether there is precedence for such a move. Former secretary general of the Lok Sabha P.D.T. Achary told The Wire that there is no clause allowing for renomination under Article 80.

“I don’t remember having come across a case of re-nomination of a person after his resignation. Under Article 80(1)(a) there is a nomination. But there is no renomination. The president can only nominate a person to the Raya Sabha. The notification cannot say that the president is re-nominating him,” Achary said.

“Secondly, Section 154(3) of the Representation of People Act says that a member chosen to fill a casual vacancy shall serve the remainder of the term of his predecessor. Mark the word ‘chosen’, which means chosen through election. It does not apply to a nominated member. It would therefore mean that filling a casual vacancy does not apply to nomination. So, the notification issued by the president re-nominating Dasgupta seems to be defective,” he continued.

Nominated individuals cannot be thought of in the same vein as elected ones, Achary said. “The president nominates men of eminence to the Rajya Sabha. When any such person resigns he conveys his intention not to serve the House and impart his knowledge and wisdom to it. In this respect, he is different from an elected member. Once a nominated member resigns, the president nominates another eminent person not to serve the remainder of the term but a full term of six years. So it is constitutionally wrong to keep the seat reserved and re-nominate a person who had made it clear to the House through his resignation that he no longer wanted to impart his knowledge and wisdom to the House. The problem with this kind of action is that the spirit of the constitution is given a complete burial,” he concluded.

Senior advocate of the Supreme Court, Sanjay Hegde, agreed with Achary on the question of the legality of such a renomination.

“P.D.T. Achary is right that there is no provision for renomination. The President has the power to nominate anyone. However, here, the President is specifically nominating someone who had, barely a month ago, resigned from a post he occupied as a result of the nomination. I refuse to believe that in a country of 1.3 billion people there was no one else available for nomination,” he said.

Hegde also said that this would be a difficult decision to defend in court.

“Even the Presidential power of pardon has been held to be subject to judicial review. If the nomination is tested in court, the court may consider if there was material on record, justifying a second nomination to seat voluntarily forsaken. This case may otherwise present a troubling precedent,” Hegde said.

Congress MP Jairam Ramesh also asked whether this was the first time in the history of the Rajya Sabha that such a thing had happened.

Dasgupta was nominated to the Rajya Sabha in April 2016 and his original term was set to expire in 2022.

In a separate notification, the Home Ministry said the lawyer Mahesh Jethmalani was also nominated to Rajya Sabha by the central government to fill the seat that has fallen vacant due to the demise of Raghunath Mohapatra for the reminder his (Mohapatra’s) term, i.e. till July 13, 2024.

The president, acting on the advice of the government,  has the power to nominate up to 12 individuals – normally but not always renowned personalities – drawn from fields such as literature, science, sports, art and social service to the upper house.

(With PTI inputs)

Note: This article was originally published on June 1, 2021 and republished on June 2, 2021 with P.D.T. Achary and Sanjay Hegde’s opinions.