Disqualification of Members of Parliament and Members of the Legislative Assembly in India

The disqualification of Members of Parliament and Members of the Legislative Assembly (MLAs) in India is a critical aspect of maintaining the integrity and proper functioning of the country’s parliamentary democracy. Disqualification serves as a mechanism to ensure that those who hold public office adhere to the constitutional and legal standards required for their positions. 

Constitutional Provisions: Articles 102 and 191

The Indian Constitution provides the foundational framework for the disqualification of Members of Parliament and Members of Legislative Assembly under Articles 102 and 191, respectively. Both articles lay down similar conditions for disqualification:

1. Office of Profit: Members of Parliament or Member of Legislative Assembly can be disqualified if they hold any office of profit under the government of India or any state government, other than an office declared by Parliament to be exempt from disqualification. The term “office of profit” is not explicitly defined in the Constitution, but the Supreme Court has outlined principles to determine whether a position qualifies as an office of profit. These include whether the government exercises control over the appointment, removal and functions of the office, whether the office carries remuneration, whether the officeholder has governmental powers and whether the office allows the holder to influence by way of patronage.
2. Unsound Mind: A person is disqualified if they are of unsound mind and have been so declared by a competent court.
3. Undischarged Insolvent: A person who is undischarged insolvent is disqualified from being a Member of Parliament or Member of Legislative Assembly. 
4. Citizenship: Non-citizens of India are disqualified from holding office as Members of Parliament or Members of Legislative Assembly. Additionally, individuals who have voluntarily acquired citizenship of a foreign state or have acknowledged allegiance to a foreign state are also disqualified.
5. Other Disqualifications: An Member of Parliament or Member of Legislative Assembly can be disqualified under any law made by Parliament. This includes disqualification under the Representation of the People Act, 1951, which provides detailed provisions on this matter.

The Representation of the People Act, 1951

The Representation of the People Act, 1951 (RPA), is a key legislative framework that governs the conduct of elections in India and prescribes the qualifications and disqualifications for Members of Parliament and Members of Legislative Assembly. The Act details various grounds for disqualification, including criminal convictions, electoral malpractices and financial improprieties.

Disqualification on Grounds of Conviction (Section 8)

Section 8 of the Representation of the People Act deals with the disqualification of a person convicted of certain offences. The section is divided into three subsections, each dealing with different categories of offences:

1. Section 8(1): This subsection lists specific offences, such as promoting enmity between different groups, bribery and undue influence, which result in immediate disqualification upon conviction.
2. Section 8(2): This subsection covers offences related to hoarding, adulteration of food or drugs and violations of the Dowry Prohibition Act, 1961. Conviction under these offences also leads to disqualification.
3. Section 8(3): A person convicted of any offence and sentenced to imprisonment for not less than two years is disqualified from the date of conviction and remains disqualified for the duration of the sentence plus an additional six years.

Judicial Interpretation and the Lily Thomas Case

A landmark case that significantly impacted the disqualification provisions under the Representation of the People Act was Lily Thomas v. Union of India (2013). Prior to this judgment, Section 8(4) of the Representation of the People Act allowed sitting Members of Parliament and Members of Legislative Assembly to continue in office if they filed an appeal against their conviction within three months. This provision effectively provided immunity from immediate disqualification. 

However, the Supreme Court, in the Lily Thomas case, struck down Section 8(4) as unconstitutional, holding that Members of Parliament and Members of Legislative Assembly should be immediately disqualified upon conviction for offences leading to imprisonment of two years or more. This ruling underscored the principle that lawmakers should not continue to serve in office if they have been convicted of serious crimes, thereby strengthening the integrity of the legislative bodies.

Disqualification on Grounds of Defection: The Tenth Schedule

The Tenth Schedule of the Indian Constitution, commonly known as the Anti-Defection Law, was added by the 52nd Amendment in 1985 to address the issue of political defections. The law aims to prevent elected members from switching parties after being elected, which was seen as a serious threat to the stability of governments.

Grounds for Disqualification Under the Tenth Schedule

1. Voluntary Resignation from Party: A member of a political party is disqualified if they voluntarily give up their membership of that party.
2. Voting Against Party Directives: A member is disqualified if they vote or abstain from voting in the legislature contrary to the directions of their party without prior permission.
3. Joining Another Party: An independent member, elected without party affiliation, is disqualified if they join a political party after the election. Similarly, a nominated member who joins a political party after six months of their nomination also faces disqualification.
4. Merger Exception: If a party merges with another party and at least two-thirds of its members agree to the merger, the disqualification does not apply to those members.

Decision on Disqualification

The power to decide on disqualification under the Tenth Schedule is vested in the Speaker of the Lok Sabha or the Chairman of the Rajya Sabha (in the case of MPs) and the Speaker of the Legislative Assembly (in the case of MLAs). However, the Supreme Court, in the Kihoto Hollohan v. Zachillhu (1992) case, held that the decision of the Speaker or Chairman is subject to judicial review, ensuring that the process remains fair and just.

Disqualification for Electoral Malpractices

Electoral malpractices, such as corrupt practices during elections, can also lead to the disqualification of Members of Parliament and Members of Legislative Assembly. The Representation of the People Act specifies that candidates found guilty of such practices by a competent court may be disqualified for a period determined by the court. These malpractices include bribery, undue influence, impersonation and false statements.

Disqualification for Holding an Office of Profit

The disqualification for holding an office of profit is a contentious issue that has been the subject of various legal interpretations. The Constitution does not explicitly define “office of profit,” leading to multiple court rulings on the matter. In Pradyut Bordoloi v. Swapnan Roy (2000), the Supreme Court laid down the principles for determining whether a particular office constitutes an office of profit, which include factors like the nature of control by the government, the remuneration attached and the influence of the officeholder.

To avoid potential disqualification, Parliament and state legislatures have enacted laws exempting certain offices from the definition of “office of profit.” These exemptions are periodically reviewed and updated to reflect changing circumstances.

Removal of Disqualification

Disqualification is not always permanent. Both the Constitution and the Representation of the People Act provide mechanisms for the removal of disqualification. Under Section 11 of the RPA, the Election Commission has the authority to remove or reduce the period of disqualification, provided there are sufficient reasons to do so. This power was exercised in the case of Sikkim Chief Minister P.S. Tamang, who was allowed to contest a by-election despite being previously disqualified due to a corruption conviction.

Additionally, the Supreme Court has the power to stay not only the sentence but also the conviction of a person, which can enable them to contest elections. However, the Court has emphasised that such stays should be granted only in exceptional circumstances.

Conclusion

The disqualification of Members of Parliament and Members of Legislative Assembly is a crucial aspect of ensuring that the representatives of the people maintain the highest standards of integrity and accountability. The legal framework governing disqualification, rooted in the Constitution and further detailed in the Representation of the People Act, 1951, serves as a check against the abuse of power and ensures that those who hold public office are fit to do so.

Judicial interventions, particularly through landmark cases like Lily Thomas, have further strengthened the disqualification process, reinforcing the principle that those convicted of serious offences should not continue to serve as lawmakers. The Anti-Defection Law, though subject to criticism, remains an important tool in maintaining the stability and integrity of legislative bodies.