Laws governing disqualification of MP
Article 102 of Indian Constitution defines the Disqualification of Members in Parliament. According to this article:
A person can be disqualified for being chosen as a Member of Parliament of either House of Parliament:
The person holds any office of profit under the government of India or under the government of any state.
OFFICE OF PROFIT
The term office of profit is not defined in the Indian Constitution or in the Representation of People Act, 1951.
Pradyut Bordoloi vs. Swapnam Roy of 2000 In this case, the Supreme Court of India has laid down principles determining the expression office of profit. These principles are:
- Whether the government exercises control over appointment, removal, and the performance and functions of office .
- Whether the office has any remuneration attached to it
- Whether the body in which the office is held has governmental powers
- Whether the office enables the holder to influence by way of patronage
These were the four principles outlined for determining whether an office attracts constitutional disqualification.
- If the person is of unsound mind.
- If the person is charged with insolvency,
- If he is not a citizen of India,
- If he is disqualified by or under any law made by Parliament.
A person shall be disqualified from membership in either house of Parliament if he is so disqualified under the Tenth Schedule of the Indian Constitution. The Tenth Schedule of the Indian Constitution speaks about anti-defection laws. Disqualification on the ground of anti-defection laws:
The person will be disqualified if they do any of the following:
- Giving up one’s position in their party voluntarily.
- Acting in opposition to their party’s policies.
- After being elected and joining another political party.
- If the person is a nominated member and joins a political party after the six-month period has expired,
- If less than two-thirds of a political party’s members join another party,
DECISION ON THE DISQUALIFICATION OF MEMBERS:
Article 103 of the Indian Constitution defines the decisions on questions as to the disqualifications of members. According to this provision:
If any question arises as to whether a Member of Parliament has become subject to any of the disqualifications mentioned in clause (1) of Article 102, the question shall be referred to the President for his decision, which shall be final.Before giving any decision on any such question, the president shall obtain the opinion of the Election Commission and act according to such opinion.
DISQUALIFICATION OF MEMBERSHIP UNDER THE REPRESENTATION OF THE PEOPLE ACT, 1951:
The Representation of People Act, 1951, deals with the law providing for conviction in criminal cases. Section 8 of the 1951 Representation of the People Act deals with disqualification for conviction of certain offences.
Section 8(1) of the Representation of the People Act, 1951, includes specific offences such as promoting enmity between two groups, bribery, and undue influence. Section 8(2) of the Representation of People Act, 1951,1951 lists the offences that deal with hoarding, adulteration of food or drugs, and an offence under the provisions of the Dowry Prohibition Act, 1961.
Section 8(3) of the 1951 Representation of the People Act disqualifies a convicted person who has been sentenced to imprisonment for not less than two years. The person is disqualified from the date of the conviction until his release from that conviction.
Section 9 of the Representation of the People Act defines disqualification for dismissal for corruption or disloyalty.
Section 10 of Representation of People Act,1951 defines about disqualification of office under Government company.
Section 8(4) of Representation of People Act ,1951 was repealed by the case of Lily Thomas vs Union of India,2013. According to this case, the Supreme Court found that it was unconstitutional for the convicted person to contest an election. It held that Section 8(4) of the Representation of the Peoples Act, 1951, was considered an ultra vires statute. paraphrase and make it longer like 1000 words
The disqualification of Members of Parliament in the Lok Sabha, the lower house of the Indian Parliament, is governed by Article 102 of the Indian Constitution. This article outlines the conditions under which a person can be disqualified from being chosen as a Member of Parliament. One such condition is if the person holds any office of profit under the government of India or under the government of any state.
However, the term “office of profit” is not explicitly defined in the Indian Constitution or in the Representation of the People Act, 1951. In the case of Pradyut Bordoloi vs. Swapnam
Roy in 2000, the Supreme Court of India established certain principles to determine whether a particular office qualifies as an office of profit. These principles include assessing whether the government exercises control over the appointment, removal, and performance of the office, whether there is remuneration attached to the office, whether the body in which the office is held has governmental powers, and whether the office enables the holder to influence through patronage.
Apart from holding an office of profit, a person can also be disqualified if they are of unsound mind, charged with insolvency, not a citizen of India, or disqualified by or under any law made by Parliament. The Tenth Schedule of the Indian Constitution, commonly known as the anti-defection law, also provides for disqualification from membership if a person voluntarily gives up their position in their party, acts in opposition to their party’s policies, joins another political party after being elected, or engages in certain actions specified in the schedule.
The decision on the disqualification of members is governed by Article 103 of the Indian Constitution. If a question arises as to whether a Member of Parliament has become subject to any disqualification mentioned in Article 102, the question is referred to the President for a final decision. Before making a decision, the President obtains the opinion of the Election Commission and acts accordingly.
Furthermore, the Representation of the People Act, 1951, plays a significant role in disqualifying individuals from membership in Parliament. Section 8 of the Act deals with disqualification for conviction of certain offenses. It includes offenses such as promoting enmity between groups, bribery, undue influence, hoarding, adulteration of food or drugs, and offenses under the Dowry Prohibition Act, 1961. Section 8(3) of the Act states that a person convicted and sentenced to imprisonment for not less than two years is disqualified from the date of conviction until their release.
Case involving the Karnataka legislative assembly: Shrimanth Balasahib Patil v. Hon’ble Speaker . In this instance, 15 MLAs left the congress and left their positions with the Janata Dal Secular. Following this, the government fell, and the speaker disqualified the MLAs until the assembly’s expiration in 2023.
Dr. Koya disobeyed a party whip that ordered him to vote against the motion of confidence in Shri Rajeev Ranjan Singh (Lalan) v. Dr. PP Koya JD(U)(2009). He abstained by not casting a ballot, and the evidence of his illness was not deemed enough to justify his absence from the house. Therefore, when a member is bound by the whip, the speaker must be informed of a valid reason for their absence from the house.
It was noted in the 1996 case of G. Viswanathan & Ors. v. Hon’ble Speaker Tamil Nadu Legislative Assembly & Ors. that the act of giving up membership can be declared or implied. The act of deliberately leaving a political party may be express or implicit, according to an opinion. When a person who has been kicked out of or expelled from the political party that nominated him for office and won the election joins another (new) party, it will undoubtedly equate to him voluntarily giving up his membership in the political party that nominated him for office in the first place.
The 1992 “Kihoto Hollohon v Zachillu” (“Kihoto Hollohon”) case put into question the issues surrounding the bar on the courts’ jurisdiction. According to the Supreme Court, the Tenth Schedule’s Paragraph 7 completely excluded the remedies provided by Articles 136, 226 and 227 of the Constitution; this was remedied by attracting Subparagraph 2 of Article 368. It was decided that the Chairman’s and Speaker’s decision to disqualify the members should be regarded as legal but open to judicial review by the court. Therefore, this case implied that the Speaker of the House’s actions were valid and enforceable but subject to challenge in court.
Sections 9 and 10 of the Representation of the People Act further define disqualification for dismissal for corruption or disloyalty and disqualification of office under a government company, respectively.
It is worth noting that Section 8(4) of the Representation of the People Act, 1951, was repealed by the case of Lily Thomas vs. Union of India in 2013. The Supreme Court deemed it unconstitutional for a convicted person to contest an election, declaring Section 8(4) as ultra vires. Therefore, this provision no longer applies.
In summary, the disqualification of Members of Parliament in the Lok Sabha is determined by various provisions in the Indian Constitution, the Representation of the People Act, and judicial decisions. These provisions cover aspects such as holding an office of profit, engaging in actions contrary to party policies, criminal convictions, and dismissal for corruption or disloyalty. The final decision on disqualification rests with the President, who seeks the opinion of the Election Commission before making a determination.