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Criteria for Disqualification of MLAs in India

Posted by Manoj Vats on January 29, 2015 | 2 Comments to Read

The criteria for disqualifications from membership of a state legislature are mentioned in the Article 191 of the Constitution of India. This Article is similar to the disqualification laid down in the Article 102 relating to the membership of both the houses of Parliament.

Criteria for Disqualification of MLAs in India

The Constitution makes it abundantly clear that the Parliament has to make one law for a person to be disqualified for being elected and for being a Member of either House of Parliament or Legislative Assembly or Legislative Council of any state. Under Articles 102(1)(e) and 191(1)(e) of the Constitution of India, the Parliament does not have the power to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a member of Parliament or the state legislature. 

It is clearly mentioned that a person shall be disqualified as Member of Legislative Assembly (MLA) or Member of Legislative Council (MLC) if he holds any office of profit under the Government of India or a state or an office declared by a law of the state. However, many states have passed such laws declaring certain offices, holding of which will not disqualify a person for being an MLA. 

Also, if any competent court declares any member to be of unsound mind, then the MLA is disqualified. Some of the other grounds are: if he is charge-sheeted, bankrupt or insolvent; if he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance or adherence to a foreign state.

Representation of the People (RP) Act, 1951

Apart from the conviction by court, in the Representation of the People (RP) Act, 1951, other criteria of disqualifications were also mentioned – for instance, if one is found guilty of an illegal practice in relation to election and being a director or managing agent of a corporation in which government has a financial interest. 

The Section 8 of the RP Act deals with disqualification on conviction for certain offences. A person convicted of any offence and sentenced to imprisonment for varying terms under Sections 8 (1) (2) and (3) shall be disqualified from the date of conviction and shall be disqualified for a further period of six years since his release. However, the Section 8 (4) of the RP Act gave protection to MPs and MLAs as they could continue in office even after conviction if an appeal is filed within three months. 

But in a recent judgement a Supreme Court Bench of Justices A.K. Patnaik and S.J. Mukhopadhaya struck down Section 8 (4) as unconstitutional and held that chargesheeted Members of Parliament and MLAs, when convicted, will stand disqualified from membership of the House without being given three months’ time for appeal.

Article 192 – What it has to say about Disqualification of MLAs

Under the Article 192 it has been mentioned that that if any question arises as to whether or not the member of a house of the legislature of a state has become subject to any of the disqualification criteria, the question shall be cited to the Governor of the State for decision who will act as per the opinion of the Election Commission (EC). His decision shall be final and may not be reviewed by any court of law.

WBMKJ 27.01.2014 EBVD