Disqualification for Membership - The Indian Constitution lays down specific criteria for disqualification of members from being chosen or remaining as members of the Parliament (Lok Sabha and Rajya Sabha) or State Legislatures (Legislative Assembly and Legislative Council). These provisions aim to ensure accountability, integrity, and transparency in the legislative process.
Article 102: Disqualifications for Membership of Parliament
Criteria for Disqualification
Under Article 102 of the Constitution of India, a person shall be disqualified from being chosen as, or for being, a member of either House of Parliament if:
1. Office of Profit: The individual holds any office of profit under the Government of India or any state government, other than an office exempted by Parliament by law.
2. Unsound Mind: The person is of unsound mind and has been declared so by a competent court.
3. Undischarged Insolvent: The individual is an undischarged insolvent.
4. Citizenship: The person is not a citizen of India, or has voluntarily acquired the citizenship of a foreign state, or acknowledges allegiance to a foreign power.
5. Disqualification Under Laws Made by Parliament: The individual is disqualified by any law enacted by Parliament, such as:
- Representation of the People Act, 1951: Covers electoral malpractices, corrupt practices, and certain criminal offenses.
Disqualification Under the Tenth Schedule
A person can also be disqualified under the provisions of the Tenth Schedule, which deals with defection. This includes:
- Voluntarily giving up membership of the political party on whose ticket the individual was elected.
- Voting or abstaining from voting in contradiction to party directions without prior permission.
Article 191: Disqualifications for Membership of State Legislatures
Article 191 specifies similar disqualification criteria for members of the State Legislative Assembly or Legislative Council. These include:
- Holding an office of profit under the government.
- Being of unsound mind, declared by a competent court.
- Being an undischarged insolvent.
- Non-citizenship of India or voluntary allegiance to a foreign state.
- Disqualification under laws enacted by the State Legislature or Parliament.
The Tenth Schedule applies to State Legislatures as well, ensuring accountability for defection.
Role of the President and Governor
For Parliament
- Any question regarding disqualification under Article 102 is referred to the President of India, whose decision is final.
- Before making a decision, the President must consult the Election Commission of India.
For State Legislatures
- Questions regarding disqualification under Article 191 are referred to the Governor of the respective state.
- The Governor must also consult the Election Commission before making a decision.
Tenth Schedule: Disqualification on Grounds of Defection
The Tenth Schedule was introduced through the 52nd Amendment Act, 1985, to combat the problem of defection. It outlines the conditions under which a legislator can be disqualified for switching parties or defying party discipline.
Key Provisions
1. A member of a legislature is disqualified if they:- Resign or voluntarily give up their party membership.
- Vote against party directives without permission.
2. An independent member is disqualified if they join a political party after being elected.
3. A nominated member is disqualified if they join a party after six months of being nominated.
Exceptions
A party merger: If at least two-thirds of the members of a political party agree to merge with another party, no disqualification occurs.
The Speaker or Chairman has the authority to decide questions of disqualification under the Tenth Schedule.Judicial Review of Disqualification Decisions
The Kihoto Hollohan Case (1993) established important precedents for the Tenth Schedule:
- The Supreme Court ruled that the decision of the Speaker or Chairman is subject to judicial review.
- The Court emphasized that the Speaker, while deciding on disqualification matters, functions as a tribunal and must act impartially.
- However, the Court rejected the argument that adjudicatory powers granted to the Speaker are invalid due to potential political bias.
Disqualification Under Other Laws
The Representation of the People Act, 1951, outlines additional grounds for disqualification:
Conviction of Certain Offenses:Imprisonment for two or more years leads to disqualification for the duration of the sentence and six years thereafter.
Corrupt Practices:Engaging in corrupt electoral practices or being found guilty of offenses like bribery.
Failure to Lodge Accounts of Election Expenses:Candidates must file a detailed account of election expenses within a stipulated timeframe.
Government Contracts:Entering into contracts with the government during their tenure may lead to disqualification.
Implications of Disqualification
Integrity of Legislatures:Disqualification provisions ensure that elected representatives uphold high ethical standards.
Deterrence of Corruption:Legislators are discouraged from engaging in corrupt practices or unethical behavior.
Promoting Stability:Provisions under the Tenth Schedule reduce the menace of political instability caused by frequent defections.
FAQs on Disqualification for Membership
What is an office of profit?
An office of profit refers to a position under the government that provides financial gain. However, certain offices are exempted by laws passed by Parliament or State Legislatures.What is the role of the Election Commission in disqualification cases?
The Election Commission provides its opinion to the President or Governor, who then makes the final decision on disqualification matters.Can a disqualified member contest elections again?
Yes, depending on the nature of disqualification. For instance, under the Representation of the People Act, a member disqualified due to conviction can contest elections after the disqualification period ends.How does the Tenth Schedule combat defection?
The Tenth Schedule disqualifies members who defect from their political party, ensuring loyalty and stability within the legislature.Is the Speaker's decision on defection final?
No, the Speaker's decision is subject to judicial review, as established in the Kihoto Hollohan case.The provisions for disqualification in Articles 102 and 191, coupled with the Tenth Schedule and related laws, are vital for maintaining the sanctity of India's democratic processes. They ensure accountability, prevent misuse of power, and uphold the principles of integrity in governance. By understanding these provisions, we can better appreciate the safeguards built into the Indian Constitution to preserve the credibility of its legislatures.
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