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

Introduction

Disqualification of Members of Parliament (MPs) and Members of the Legislative Assembly (MLAs) ensures integrity, accountability, and adherence to constitutional principles. Various constitutional provisions, legislative acts, and judicial pronouncements govern the grounds and procedures for disqualification in India.

Constitutional Provisions: Articles 102 and 191

Articles 102 (for MPs) and 191 (for MLAs) outline the disqualification criteria:

• Office of Profit: MPs and MLAs are disqualified if they hold an office of profit under the central or state government, except offices exempted by law.
• Unsound Mind: A person declared of unsound mind by a competent court is disqualified.
• Undischarged Insolvent: Individuals who are undischarged insolvents cannot hold office.
• Citizenship: Non-citizens of India or those voluntarily acquiring foreign citizenship or allegiance to a foreign state are disqualified.
• Other Disqualifications: MPs and MLAs can also be disqualified under laws like the Representation of the People Act, 1951 (RPA).

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Representation of the People Act, 1951

Disqualification on Grounds of Conviction (Section 8)

Section 8 of the RPA specifies disqualification based on criminal convictions:

1. Section 8(1): Immediate disqualification for offences like promoting enmity, bribery, or undue influence.
2. Section 8(2): Disqualification for offences like hoarding, adulteration, or dowry prohibition violations.
3. Section 8(3): Convictions with imprisonment of two years or more lead to disqualification during the sentence and for six additional years.

The Lily Thomas Case (2013)

In Lily Thomas v. Union of India, the Supreme Court struck down Section 8(4) of the RPA, which allowed MPs and MLAs to continue in office if they appealed convictions within three months. The Court ruled immediate disqualification for convictions with a two-year sentence or more, ensuring stricter accountability.

Disqualification Under the Tenth Schedule: Anti-Defection Law

The Tenth Schedule, added by the 52nd Amendment (1985), aims to curb political defections:

1. Voluntary Resignation from Party: Members resigning from their political party are disqualified.
2. Voting Against Party Directives: Members defying party directives without prior approval face disqualification.
3. Joining Another Party: Independent members joining a party post-election and nominated members joining a party after six months face disqualification.
4. Merger Exception: Disqualification does not apply if at least two-thirds of a party’s members agree to a merger.

Decision on Disqualification: The Speaker or Chairman decides on disqualification, but this is subject to judicial review as per Kihoto Hollohan v. Zachillhu (1992).

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Disqualification for Electoral Malpractices

Electoral malpractices like bribery, impersonation, or false statements during elections can lead to disqualification under the RPA. Convictions for such malpractices result in disqualification for a period determined by the court.

Disqualification for Holding an Office of Profit

Holding an office of profit disqualifies an MP or MLA, though the term “office of profit” lacks a clear constitutional definition. In Pradyut Bordoloi v. Swapnan Roy (2000), the Supreme Court outlined factors like government control and remuneration to determine whether a position qualifies as an office of profit.

Parliament and state legislatures regularly exempt specific offices from this disqualification to reflect evolving circumstances.

Removal of Disqualification

1. Election Commission’s Role: Under Section 11 of the RPA, the Election Commission can remove or reduce disqualification periods.
2. Judicial Stay: Courts can stay convictions and sentences, enabling candidates to contest elections. However, such stays are granted sparingly.

Judicial Interpretations

Judicial rulings have shaped the interpretation and application of disqualification laws:

• Khem Chand v. Union of India (1958): Emphasized the right to fair hearing in disqualification proceedings.
• Union of India v. Tulsi Ram Patel (1985): Highlighted exceptions to procedural safeguards for disqualification in cases of national security.
• Shyam Lal v. State of U.P. (1954): Differentiated between punitive dismissal and compulsory retirement.

Conclusion

Disqualification of MPs and MLAs ensures the integrity of India’s democratic framework. The constitutional provisions, RPA, and Anti-Defection Law collectively safeguard public trust by setting clear standards for disqualification. Judicial interventions like the Lily Thomas case have strengthened accountability, ensuring that representatives meet the highest ethical standards.

The system strikes a balance between protecting legislators’ rights and maintaining public confidence in governance, ensuring that only fit individuals hold public office.

FAQs

1. What happens if an MP or MLA is convicted of a crime?
As per the Representation of the People Act, MPs and MLAs are disqualified immediately if convicted and sentenced to imprisonment of two years or more. This was affirmed by the Supreme Court in the Lily Thomas case.

2. What is the Anti-Defection Law?
The Anti-Defection Law, under the Tenth Schedule, disqualifies MPs and MLAs for voluntarily resigning from their party, voting against party directives, or joining another party after elections. Exceptions apply for mergers with two-thirds party support.

3. Can disqualification be removed?
Yes, the Election Commission can remove or reduce the period of disqualification under Section 11 of the RPA. Courts can also stay convictions, enabling candidates to contest elections in exceptional circumstances.

Reference: drishtiias