India’s parliamentary democracy is federal in character, with legislatures at the Union and State levels. The Indian Parliament consists of the President of India and two Houses: the Rajya Sabha (the Council of States) and the Lok Sabha (the House of the People).1 The two Houses are formed on different principles, and their roles and powers have some key differences.
The Rajya Sabha is an indirectly elected House. Members of the Rajya Sabha represent various States and Union Territories. The Constitution places an upper limit of 238 such members (only two Union Territories, Delhi and Puducherry, have representatives in this House).2 The allocation of seats to different States and Union Territories is specified in the Constitution—these add up to 233 seats at present.3 Members of the Rajya Sabha are elected through single transferable vote by the elected members of the respective State assemblies, and have a term of six years. In addition, the President may nominate up to twelve members who have special knowledge or practical experience in the fields of literature, science, art, or social service.4 The Rajya Sabha is a continuing House, with one-third of its members retiring every two years. The Lok Sabha is composed of directly elected members from territorial constituencies. There is an upper limit of 530 members from States and twenty from Union Territories.5 At present, there are a total of 543 such constituencies.6 In addition, the President may nominate two Anglo-Indian representatives if their representation is seen as inadequate.7 The term of the Lok Sabha is a maximum of five years.
The two Houses have similar legislative powers. All legislation, with the exception of money Bills, need the approval of each House.8 The Constitution provides for a joint Page Id: 270ReferencesRepresentation of the People Act (India [in]) Act No 43 of 1951(p. 271) sitting to be called if the Houses cannot agree on a Bill but this mechanism has been used only thrice.9 Given that the Lok Sabha has 2.2 times the number of members that the Rajya Sabha has, it has an advantage if a joint sitting is called. The Lok Sabha has the final authority on all money Bills, with the Rajya Sabha given only recommendatory powers.10 The Lok Sabha determines who forms the government. The Council of Ministers is collectively responsible to the Lok Sabha.11 In other words, this House has the power to remove the Council of Ministers. The Rajya Sabha was envisioned as the Council of States. It can, by a resolution, enable a legislation to be passed on a subject that falls under List II (State List) of the Seventh Schedule to the Constitution.12 It can also resolve to create All-India Services.13 While exercising the constituent power—that is, amending the Constitution—the two Houses have equal powers. Every amendment to the Constitution needs to be passed by a majority of the membership and two-thirds of those present and voting.14 There is no concept of a joint sitting. In some cases, half the State legislatures also have to ratify the amendment.
All States have a Legislative Assembly, which is analogous to the Lok Sabha. It has similar powers as the Lok Sabha, and is composed of territorial constituencies.15 The Constitution also provides for a second House at the State level called the Legislative Council. Currently, seven States have such a Council.16 Parliament may by law create or abolish the Legislative Council for a State if the State’s Legislative Assembly has passed such a resolution with the support of a majority of its membership and two-thirds of the members present and voting.17 Legislative Councils have less power than the Legislative Assemblies. They have only a recommendatory role in money Bills.18 In the case of ordinary Bills too, the Legislative Assembly can override any amendments made by the Legislative Council.19
In this chapter, we first discuss some of the issues related to composition of the legislatures. We then turn to the qualifications and disqualifications of members of the legislatures. The relevant constitutional provisions here are Articles 79 to 104 (Parliament) and Articles 168 to 193 (State legislatures).
The members of the Rajya Sabha are elected on the basis of a single transferable vote by the elected members of the State Legislative Assembly. Unlike the United States Senate, the States do not have equal representation. The number of seats is specified in the Fourth (p. 272) Schedule, and is based on the population of each State, with a higher weightage given to smaller States. The States were allocated one seat per million people for the first five million and one seat per each additional two million or part thereof exceeding one million, based on the 1941 census. In 1956, the Seventh Amendment abolished the classification of States into three categories. It reorganised India into various States and Union Territories. It also amended the Fourth Schedule keeping the same formula but updating it with the data from the 1951 census.20 The same formula has been adhered to in later reorganisations of States.
In the Lok Sabha, members are elected from territorial constituencies through direct election. The Constitution initially provided that the ratio between the number of members in each constituency and the population of the constituency should be the same across all constituencies, to the extent practicable. The Seventh Amendment (1956) changed this to state that (a) the number of seats allocated to a State should be in proportion to its population; and (b) the ratio of seats in a constituency and the number of members should be constant within each State to the extent practicable.21 Note that at this time, multi-member constituencies were permitted, which were abolished only in 1961.22
The Constitution also provides that territorial constituencies should be adjusted after every census. This was undertaken until 1972 (using the 1971 census). In 1976, the Constitution was amended such that there would be no further adjustment until the first census after the year 2000.23 The Constitution was again amended in a way that until the first census after 2026, there would be no change in inter-State distribution of seats. Also intra-State adjustments will be made based on the 2001 census, which would also not be altered until the first census after 2026.24 The reason for these changes was ‘to boost family planning norms’ and work ‘as a motivational measure to enable the State Government to pursue the agenda for population stabilisation’.25 That is, States that were more successful in reducing the population growth rate would end up with a lower number of seats in the Lok Sabha under the earlier formula, so the seat share was frozen at the earlier level.
The Legislative Assembly of a State has provisions analogous to the Lok Sabha. The provisions related to readjustment of the territorial constituencies are also similar to those for the Lok Sabha.26 The number of members of a Legislative Council cannot exceed one-third of the number of members in the Legislative Assembly. The composition of the Council is as follows: one-third of the members elected by members of municipalities, district boards, and local authorities; one-twelfth elected by residents who have been graduates for at least three years; one-twelfth elected by teachers in educational institutions in the State, not lower in standard than secondary schools; one-third elected by members of the Legislative Assembly; and the remaining nominated by the Governor from among persons having special knowledge or practical experience in literature, science, art, cooperative movement, Page Id: 272ReferencesConstitution (Eighty-fourth Amendment) Act (India [in])Constitution (Eighty-seventh Amendment) Act (India [in])Constitution (Forty-second Amendment) Act (India [in])Constitution (Seventh Amendment) Act (India [in])Two-Member Constituencies (Abolition) Act (India [in]) Act No 1 of 1961(p. 273) or social service. Parliament may, by law, change this scheme of composition of Legislative Councils.27 As things presently stand, Parliament has not made any such law.
Parliament may make laws relating to the conduct of elections to Parliament and State legislatures, including preparation of electoral rolls and delimitation of constituencies.28 If provisions are not made by Parliament, a State legislature may also make law related to conduct of elections to the House(s) of that State’s legislature, including preparation of electoral rolls.29 The validity of any law related to delimitation of constituencies or allotment of seats to any constituency may not be called in question in any court.30 Indeed, the fact that the Delimitation Commission’s decision to reserve a seat cannot be questioned in a court was reaffirmed by the Supreme Court.31 In another case, the Supreme Court held that Article 329 provided a blanket ban on legal challenges to electoral steps taken by the Election Commission and its officers to complete an election.32
To be chosen as a Member of Parliament include (a) to be a citizen of India and to make an oath or affirmation to bear true faith and allegiance to the Constitution of India and uphold the sovereignty and integrity of India; (b) to be of 25 years of age in the case of the Lok Sabha and 30 years in the case of the Rajya Sabha; and (c) to possess any other qualification that Parliament may make by law.33
The Supreme Court has confirmed the requirement that the person needs to make the required oath or affirmation after nomination and before the scrutiny of nominations.34 Before taking his seat, every member has to make the required oath or affirmation before the President (Governor) or some person appointed by him.35 If a person sits or votes in Parliament (State legislature) without taking such oath, or if he knows that he is not qualified or is disqualified from membership, he is liable to pay a fine of Rs 500 per day.36
Parliament has by law required that to be chosen as a Member of Parliament, a person has to be an elector for any parliamentary constituency in India. The word ‘elector’ is defined as being registered on the electoral roll and not subject to certain disqualifications. Similarly in the case of a Legislative Assembly or a Legislative Council of a State, the person must be registered on the electoral roll of any constituency of the State. There are special requirements for a person to be elected to a seat reserved for the Scheduled Castes or for Scheduled Tribes, and for some communities in some States.37Page Id: 273ReferencesRepresentation of the People Act (India [in]) Act No 43 of 1951(p. 274)
The Representation of the People Act 1950 lists three disqualifications to be on the electoral roll: (a) if the person is not a citizen of India; (b) if he is of unsound mind and stands so declared by a competent court; and (c) if he is disqualified from voting under any law relating to corrupt practices and other offences in relation to elections.38 The Representation of the People Act 1951 also lists a few conditions that would disqualify an elector from voting.39 This includes, inter alia, that a person confined in a prison or in the lawful custody of the police (other than in preventive detention) is not eligible to vote. In 2013, the Supreme Court conflated these two conditions, and declared that anyone in the lawful custody of police would be ineligible to contest elections.40 The argument offered by the Court was that such a person is ineligible to vote, and therefore will not be an elector. This interpretation failed to notice that the two Acts of 1950 and 1951 had differentiated between an elector and the right to vote. However, this condition was removed through an explanation inserted by the Representation of the People (Amendment and Validation) Act 2013.
The eligibility requirement for a member of the Rajya Sabha was slightly different. It required that the member had to be an elector for a parliamentary constituency in that State or Union Territory.41 This condition was removed in 2003, and the law now states that the person has to be an elector in any parliamentary constituency in India.42 This amendment was challenged and was examined by a constitutional bench of the Supreme Court.43 The main argument made by the petitioners was that the Rajya Sabha as the Council of States was envisioned to represent the interests of States. Any deviation from this principle would violate the principle of federalism, which was a part of the basic structure of the Constitution. The removal of the requirement that the member should be an elector of the State (which also meant that he should be ‘ordinarily resident’ in that State) would deviate from the principle of federalism. The Court rejected this contention, stating that the only change the amendment had made was that it had enlarged the choice of the electors, who are elected members of the State Legislative Assembly.44 If they chose to do so, they could elect a person who had a nexus with the State of residence, as argued by the petitioners. Thus, according to the Court, Indian federalism did not demand that members of the Rajya Sabha belong to the State they represent.
1. Office of Profit
The idea of office of profit is as follows. There is a delicate balance between the legislature and the executive. Legislators should be able to carry out their parliamentary duties in a free manner without any obligation to the government of the day. Therefore, there is a need to ensure that they are independent of the executive. However, there may still be some offices, such as ministries, which have a dual role in a parliamentary democracy, and they need to be exempt from this requirement. There may be other offices where a need for exemption may arise, and there needs to be a provision to enable such exemptions. The Constitution states that any person who holds an office of profit under the Central or State government cannot be chosen as or be a member of the House. An explanation states that ministers of the Union or a State are exempt from this rule. It also enables Parliament to make law to expand the list of exempt offices.47 Therefore, four conditions are to be met for a person to be disqualified: (i) he should hold an office; (ii) the office should be one of profit; (iii) the office should be under the Union or State government; (iv) the office is not in the list that is excluded from disqualification by a law made by Parliament.
The Supreme Court has held that ‘office’ has an independent existence from its ‘holder’. The word ‘office’ means:
In this particular case, the Court held that a Special Government Pleader would not be said to hold an office of profit as the office did not exist independent of the person who was appointed for the particular purpose. Earlier judgments had similarly held that there is no ‘office’ in the case of a person holding a permit to ply buses,49 or a licensed stamp vendor or a deed writer,50 or a shareholder in a company transporting postal articles and mailbags.51
To be an office ‘of profit’, there should be some pecuniary gain attached to it. The gain may be in forms other than money. The term must be interpreted reasonably, and it is the substance and not the form of payment that is important. For example, the Court has ruled that when land is allocated to a person by way of remuneration for services rendered or he can deduct his compensation from revenue collected on behalf of the government, it would be considered to be pecuniary gain for this purpose.52 However, if the payment is for meeting out-of-pocket expenses and not for the loss of remunerative time, it would not be considered to lead to profit. Thus, a member of a government-appointed committee who draws a fee to meet his out-of-office expenses to attend a committee meeting is seen to receive only a compensatory allowance, and therefore does not hold an office of profit.53 The key question is whether the compensation receivable could bring the holder of the office under the influence of the executive.54
The amount received may not be relevant but the amount receivable could be so in deciding whether the office is one of profit. In Jaya Bachchan,55 the Supreme Court ruled that it is not important whether the person actually receives pecuniary gain or whether the gain was negligible. What is relevant is whether the office is capable of yielding a profit or pecuniary gain. In another case, when a person was appointed to a post in an honorary capacity without any remuneration, though the post carried remuneration, the Court ruled that the person did not hold an office of profit.56 That is, while appointing the person, the office should not be capable of yielding profit to that person.
There are several tests laid down to determine whether the office is under the government. These include: (a) whether the government makes the appointment; (b) whether it has the right to remove or dismiss the holder of the office; (c) whether the government pays the remuneration; (d) whether the functions are carried out for the government; and (e) whether the government has control over the duties and functions of the holder.57 For example, the Vice Chancellor of a University who is appointed by the Governor in his capacity as the Chancellor has been judged not to hold an office of profit as the government Page Id: 276ReferencesGreat Western Railway Company (on behalf of Hall) v Bater,  UKHL TC_8_231,  2 AC 1, (1922) 8 Tax Cases 231, 13th March 1922, United Kingdom; House of Lords [UKHL](p. 277) does not have the authority to appoint or remove him.58 The same rationale applies to a person employed by a government company,59 or a school run by a government agency if the government does not have the direct power to appoint or dismiss that person.60 On the other hand, even if an office is hereditary, it could be an office of profit under the government if the government appoints the holder, he works under the control and supervision of the government, government lands are allotted to the office by way of remuneration, and he is removable by the government.61
The determination of whether the function is under the control of the government and the power to appoint and dismiss the person is important to decide whether the office is under the government. So, for example, the auditor of a government company was held to hold an office of profit under the government. He was appointed and could be removed by the government. His functions were under the control of the Comptroller and Auditor-General, who is appointed and whose administrative powers are controlled by the rules made by the President. The Supreme Court emphasised the importance of the substance, and not the form, of the office. For the office to be under the government, there need not be any relationship of master and servant between the government and the holder of the office, and the remuneration could be paid by the company, and not out of government revenues.62
Parliament enacted three Acts in 1950, 1951, and 1954 listing some offices that were exempted from disqualification. These three Acts were replaced by the Parliament (Prevention of Disqualification) Act 1959, which has been amended a number of times. Until 2006, the Act included a number of offices, including any office held by a minister, deputy minister, or minister of State, Leader of the Opposition, leader or deputy leader of a party or group in Parliament, chief whip, deputy chief whip, or whip in Parliament. It also included the Deputy Chairman of the Planning Commission, the Chairperson of the National Commission for Minorities, the National Commission for the Scheduled Castes and Scheduled Tribes (now split into two bodies, and both Chairpersons exempted), and the National Commission for Women. The list has several other categories. The Act also had a Schedule listing some bodies; the chairman, director, or member of all bodies not listed were exempt if they did not get any remuneration other than compensatory allowance.63 The Act was amended in 2006. The Amendment Act added several offices to the exempted list: (a) Chairperson of the National Advisory Council; (b) chairman, deputy chairman, secretary, and members of fifty-five bodies listed in a new table; (c) chairman, deputy chairman, secretary, and members of any trust that was not specified in the Schedule; and (d) chairman, president, vice-president, principal secretary, or the secretary of the governing body of any society that is not specified in the Schedule.64 This Amendment has expanded the list considerably. It has also effectively removed the condition that there should be no remuneration other than compensatory allowance for chairmen, trustees, and secretaries of trusts and societies not included in the Schedule.Page Id: 277ReferencesParliament (Prevention of Disqualification) Act (India [in]) Act No 10 of 1959Parliament (Prevention of Disqualification) Amendment Act (India [in]) Act No 31 of 2006(p. 278)
In sum, the Supreme Court has held that three conditions need to be satisfied to disqualify a person: holding an office; office being of profit; or office being under the Union or State government. The office of a minister or any other office so declared by Parliament will be exempt from being a condition for disqualification. The main rationale behind this provision is the separation of powers. Members of Parliament (and State legislatures) have an oversight role over the Union (State) government, and therefore should not be influenced by any pecuniary considerations of an office controlled by the concerned government. The 2006 Amendment now provides for such a wide-ranging list of exempted offices—such as the Indian Statistical Institute, Calcutta (an academic institution), the Irrigation and Flood Control Commission, Uttar Pradesh (an executive body), KRIBHCO (a farmer’s cooperative), the Dalit Sena (a socio-political body), WBIDC (an industrial development corporation)—that it is clear that there does not seem to be any underlying common principle to choose these bodies. Indeed, the government’s justification was that about forty sitting Members of Parliament were facing disqualifications as they were holding some of these posts, and vacation of seats by them would necessitate the holding of by-elections and consequent expenditure and financial burden.65 This Amendment also has the unique distinction of having been returned for reconsideration by the President before being passed again and enacted.66 The Parliament (Prevention of Disqualification) Act 1959 needs to be revisited. The principles to determine which offices should be exempt should be discussed and clearly spelt out. Based on these, the list of exempted offices can be decided. Only by a rationalisation and pruning down of this list can the idea of separation of powers be preserved and remain practical in a parliamentary system.
In 1985, the Constitution (Fifty-second) Amendment Act added Article 102(2) and the Tenth Schedule to the Constitution. These provided new grounds for disqualification on the basis of defection, and are known as the anti-defection law. The main features of the law are as follows:67
Several aspects of the anti-defection law have been clarified through judicial decisions. Paragraph 7 of the Tenth Schedule bars courts from having jurisdiction on any matter related to disqualification under the Schedule. When the Supreme Court considered this provision, it ruled that this provision brought about a change in the operation and effect of Articles 136, 226, and 227 of the Constitution.69 Under Article 368(2), any Constitution Amendment Bill that sought to make any change in these Articles would need to be ratified by the legislatures of half the States before it was sent to the President for his assent. As Page Id: 279ReferencesConstitution (Ninety-first Amendment) Act (India [in])(p. 280) this procedure of ratification by State legislatures was not undertaken before obtaining the President’s assent, the Court said this paragraph was liable to be struck down.70
A more serious challenge to the constitutionality of the anti-defection law was on the grounds of democracy. It was argued that the anti-defection law, by imposing restrictions on legislators on their freedom to vote according to their conscience, violated the principles of parliamentary democracy. The Supreme Court, however, rejected this challenge, holding as follows:
In such cases, the Court concluded, the judiciary should defer to the legislature.
The anti-defection law leads to disqualification of a member who votes or abstains in a manner that is contrary to directions from his party. According to Article 105(1), ‘Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.’ Article 105(2) protects Members of Parliament from being liable to any proceedings in any court with respect to anything said or any vote given by them in Parliament. The question is whether the anti-defection law impinges on these rights and immunities. The Supreme Court has ruled that the Tenth Schedule does not impinge on these rights and immunities. This is both because the freedom of speech under Article 105 is not an absolute freedom, and because the Tenth Schedule does not purport to make any member liable in any court for anything said or vote given.72
As per Paragraph 6(1) of the Tenth Schedule, the decision of the Speaker or Chairman shall be final. Paragraph 6(2) states that the proceedings in this respect shall be deemed to be within the meaning of Articles 122 or 212; that is, the validity cannot be questioned on grounds of alleged irregularity. The Court has ruled that Paragraph 6(1), to the extent it seeks to impart finality to the decisions of the Chairman or Speaker, is valid. But the concept of finality does not detract from or abrogate judicial review under Articles 136, 226, or 227 insofar as infirmities based on violations of constitutional mandates, mala fides, non-compliance with rules of natural justice, and perversity are concerned. The deeming provision in Paragraph 6(2) attracts an immunity to protect the validity of proceedings in Parliament from mere irregularities of procedure. The Chairman/Speaker, while exercising powers and discharging functions under the Tenth Schedule, acts as a tribunal adjudicating rights and privileges, and their decisions in that capacity are amenable to judicial review. However, judicial review should not cover any stage prior to the making of a decision by the Chairman/Speaker.73
In the absence of a member explicitly resigning from a party, can there be circumstances in which he may be judged to have voluntarily given up membership? The Supreme Court (p. 281) has held that the phrase ‘voluntarily given up his membership’ can have a wider connotation than ‘resignation’.74 Even in the absence of a formal resignation, an inference can be drawn from the conduct of the member that he has voluntarily given up his membership. The Court also said that the Speaker could draw an inference based on photographs published in newspapers and statements made by members.75 Indeed, the principle that newspaper reports can be taken as an indication of the conduct of a member has been used by Speakers. For example, the Speaker of the Lok Sabha disqualified a member belonging to the Bahujan Samaj Party based on reports in several newspapers that he had taken part in a public meeting of the Samajwadi Party in which he had exhorted the people to vote for the Samajwadi Party.76
The Tenth Schedule disqualifies a member who voluntarily gives up membership of his party. But how is the member to be treated if the party expels him? Can the member be treated as ‘unattached’? Will he incur disqualification if he joins another party? The Supreme Court has clarified that there is nothing like an ‘unattached member’ within the meaning of the Tenth Schedule.77 The Explanation to Paragraph 2(1) makes it clear that an elected member is deemed to belong to the political party, if any, by which he was set up as a candidate for the election. The decision of the party in expelling the member is between the party and the member and finds no place in the scheme of the Tenth Schedule. The person will continue to belong to the original political party, and shall face disqualification if he joins another party.78
Under the Tenth Schedule, the power of review is vested in the Speaker, and a key question is whether the Speaker can review an earlier decision. This question arose after an interesting series of events. Elections were held to the Goa Legislative Assembly in November 1989. In January 1991, Ravi Naik assumed the office of Chief Minister. Another member moved a petition for his disqualification under the Tenth Schedule, which was upheld by the Speaker. Ravi Naik obtained a stay on its implementation from the High Court. While the stay was in operation, a new Deputy Speaker was elected and the Speaker was removed from office. The Deputy Speaker, acting as the Speaker, reviewed the disqualification order and reversed it. This process was challenged in the Supreme Court. The Court said that the Speaker’s order is final, subject to judicial review as held in Kihoto Hollohan. Therefore, there was no inherent power given to the Speaker to review an earlier decision.79
In sum, we see that political parties are now recognised by the Indian Constitution. The Constitution did not mention the term ‘political parties’ for the first thirty-five years of the Republic. The existence of political parties was not only recognised but accorded a central role in 1985 with the inclusion of the anti-defection law. This law has fundamentally changed the way of functioning of our parliamentary democracy by shifting power away from the individual legislator to the leadership of political parties. In Kihoto Hollohan
, the Supreme (p. 282)
Court upheld the principle that individual legislators should follow the whips issued by the party. Venkatachaliah J, speaking for the majority, held that:
The judgment went on to note that the Tenth Schedule recognises two exceptions: one where the Member obtains prior permission to vote or abstain from voting and the other when the party condones his action after the vote. This reasoning led the judges to uphold the constitutionality of the anti-defection law against the charge that ‘to punish an elected representative for what really amounts to an expression of conscience negates the very democratic principles which the Tenth Schedule is supposed to preserve and sustain’.81
We now have the benefit of hindsight to see how the anti-defection law has worked in the past three decades. Political parties issue whips on most issues, not just those that affect the stability of the government. Even on contentious policy issues, where there may be significant difference of opinion within political parties, Members of Parliament are often compelled to toe the line decided by the party leadership. This effectively converts each Member of Parliament to a mere number that the party leader can count on. For example, in December 2012, Parliament debated the issue of allowing foreign direct investment in retail trade. News reports indicate that both the government and the leading opposition party were trying to convince leaders of other parties; there was no attempt to convince other Members of Parliament.82 This implies that to win a motion one has to only convince a handful of party leaders. If a single party has a majority in the House, the party leadership can get any motion approved, regardless of whether there is widespread support for the issue within the party. The anti-defection law was introduced to counter ‘The evil of political defections …’83 The irony is that while it has discouraged honest debate on contentious issues, it has not deterred cross-voting when a government’s survival is at stake. For example, during the confidence vote in July 1998, twenty-one Members of Parliament defied the whips issued by their parties.84
While the constitutionality of the anti-defection law has been upheld, one can debate whether it has achieved the purpose of curtailing unprincipled defections without stifling genuine difference of opinion. Perhaps, a Private Member’s Bill introduced in 2010 (which has since lapsed) finds a middle ground.85 The proposal in that Bill was to restrict (p. 283) the applicability of the anti-defection law to motions of no confidence (and confidence) in the government, adjournment motions, and money Bills—all of which lead to the fall of the government if it loses the vote. Such a treatment would also mean that independent members, as well as those in the Rajya Sabha and State Legislative Councils, would not be covered by the Tenth Schedule. After all, the composition of the Upper House does not determine the stability of the government.
3. Disqualification By or Under a Law Made by Parliament
Article 102(1)(e) enables Parliament to make law which can specify disqualifications other than those specified in the Constitution. The Representation of the People Act 1951 has specified several such disqualifications. Section 7(b) defines ‘disqualified’ as disqualified for being chosen as or being a member of either House of Parliament or the Legislative Assembly or Legislative Council of a State. The disqualifications include the following grounds:
The Supreme Court has clarified that Article 102(1) has disqualifications for a person ‘being chosen as, and for being a member’ of the House. The determination in the case of being chosen will be done in accordance with the Representation of the People Act 1951. The pertinent dates to decide such disqualification are the date of scrutiny of nominations and the date of election.95
There is another important question in this regard: if on a date subsequent to the date of election, an appellate court overturns a conviction by a trial court that resulted in disqualification, would the disqualification be wiped out from a back date? A two-judge bench had stated that in case of acquittal, the conviction and sentence are deemed to be set aside from the date they are recorded; therefore the person would be deemed not to be disqualified.96 However, a constituitional bench of the Supreme Court subsequently reversed this position. It held that the designated election judge could not take note of a subsequent event (acquittal) and apply it to an event (nomination for election) which had happened earlier. The decision of acquittal would not have the effect of wiping out the disqualification on the date of election.97 If several offences are tried together and the trial results in conviction, with sentences of imprisonment of various periods for the different offences that are ordered to run consecutively, the different periods shall be added up; if the total exceeds two years, the disqualification provision is attracted. The Court ruled that the phrase ‘any offence’ in Section 8(3) of the Representation of the People Act 1951 refers to the nature of offence and not the number of offences. It is immaterial if the conviction is in respect of one offence or several offences.98Page Id: 284ReferencesRepresentation of the People Act (India [in]) Act No 43 of 1951(p. 285)
The exception clause in Section 8(4) of the Representation of the People Act 1951 has also been challenged. As per this Section, in the case of the conviction of a sitting member, disqualification will not take effect for a period of three months, and if an appeal or application for revision is filed, until the appeal or application is disposed of by the courts. Upon examination, the Supreme Court held that this exception does not violate the equality guarantee under the Constitution as it classifies persons into two classes—(a) a person who on the date of conviction is a Member of Parliament or State legislature; and (b) a person who is not such a Member—that are clearly defined and have a reasonable nexus with the purpose sought to be achieved. The stress is not merely on the right of an individual to contest an election or continue to be a member of a House, but also on the very existence and continuity of a House democratically constituted. As different classes can be treated differently under Article 14, this provision does not violate that Article.99 That said, the protection is available only to a sitting member, and will not be available if he contests election.100
Subsequently, a two-judge bench of the Supreme Court struck down Section 8(4) of the Representation of the People Act 1951. The Court emphasised that Article 102(1)(e) states that ‘A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament if he is so disqualified by or under any law made by Parliament.’ The Representation of the People Act 1951 was made by Parliament using this power. Article 102(1) lays down the same set of disqualifications for election as well as being a member. But Parliament does not have power under this Article to make different laws for a person to be disqualified for being chosen as, and for being, a member. Further, as per Article 101(3)(a), ‘If a member of either House of Parliament becomes subject to any of the disqualifications mentioned in clause (1) or clause (2) of Article 102, his seat shall thereupon become vacant.’ This means that once a sitting member becomes disqualified by or under any law made by Parliament, his seat becomes vacant automatically. Parliament cannot make a provision to defer the date on which the disqualification of a sitting member will have effect and prevent the seat becoming vacant. On these two grounds, the Court held that Section 8(4) violates the Constitution.101
In sum, we see that the Representation of the People Act 1951 seeks to disqualify any person who has been convicted of some specified offences, with a general provision that any person convicted for a term of two years or more under any law will be disqualified. The Supreme Court has struck down the provision that allowed sitting legislators to obtain a stay on the sentence and continue to hold their membership until the appellate court decided the matter. The objective of this provision is to prevent criminalisation of politics. However, given that there is considerable time between the commission of an alleged Page Id: 285ReferencesRepresentation of the People Act (India [in]) Act No 43 of 1951(p. 286) offence and the determination by the courts, a number of persons with serious criminal cases against them are elected to Parliament and State legislatures.
In 2011, a petition was filed in the Supreme Court pleading that those charged with serious offences should be debarred from contesting elections.102 In December 2013, the Court asked the opinion of the Law Commission of India on whether disqualification should be triggered on conviction as it exists today, or upon framing of charges by the court, or upon presentation of the report by the Investigating Officer.103 The Law Commission, in February 2014, recommended that the Representation of the People Act 1951 be amended. In cases where the maximum punishment is imprisonment of five years or more, a person may be disqualified for a period of six years (unless he is acquitted in this period) from the time of framing of charges by a court; however, this disqualification would not apply for the first year after charges are framed, in order to protect against false charges ahead of an election. It also recommended that in the case of sitting Members of Parliament and State legislatures, the Supreme Court may order that trial be conducted on a day-to-day basis and completed within one year. If the trial is not conducted within one year, the trial court would have to furnish reasons to the concerned High Court. The Law Commission also gave two alternatives if the trial was not completed in one year: the member should be automatically disqualified, or the right to vote, salary, and perquisites should be suspended.104
The Supreme Court considered these recommendations and, in March 2014, it held that all trial courts should complete the trial against sitting members within one year, and if they are unable to do so, they would have to give reasons to the Chief Justice of the concerned High Court. It also said that consideration is required on the question whether the Court can prescribe any disqualifications beyond Article 102(1)(a) to (d) and the law made by Parliament under Article 102(1)(e).105
If these recommendations are brought into effect, an accused person would have to face certain consequences (disqualification) if charges are framed against him, even before being convicted of an offence. This would address the issue of persons with serious criminal cases against them being elected to legislatures. However, this recommendation misses the point that the main problem is due to delays in trials in such cases. The failure of the criminal justice system in completing trials within a short period is sought to be countered by a special provision that would disqualify a person if a court decides that there is a prima facie case to proceed with the trial. Though, as the Law Commission points out, the innocence or guilt of the person is not affected by this amendment and there is no bearing on the criminal case, the fact that a person who is innocent (as he is not yet proven guilty of an offence) is being disqualified should raise concern. Another important issue regarding these recommendations is that they differentiate between sitting legislators and candidates. The Lily Thomas judgment struck down this differentiation, stating that it contravened Article 102(1)(e). Therefore, the recommendations made by the Law Commission may also fall foul of the Page Id: 286ReferencesRepresentation of the People Act (India [in]) Act No 43 of 1951(p. 287) Constitution as interpreted in Lily Thomas. Any such differentiation would need an amendment to Article 102.
4. Vacation of Seats and Decisions on Disqualification
Article 103(1) states that if there is any question regarding the disqualification of a member of either House of Parliament under Article 102(1), it shall be referred to the President and his decision shall be final. Article 103(2) requires the President to obtain the opinion of the Election Commission on all such references, and he shall act in accordance with such opinion. The reference to the President applies only to disqualification under Article 102(1) and not the cases covered under the anti-defection law (Article 102(2)). In the latter case, the Speaker/Chairman makes the decision, which is final. There are analogous provisions for members of the State legislatures and the reference is to be made to the Governor of the State.
Article 102(1) disqualifies a person for being chosen as, and for being, a member. However, Article 103 refers only to members, and not to candidates. Therefore, the process is applicable only for disqualifications that have arisen after the person has become a member. Once a person becomes a member and then incurs a disqualification, the decision is made in accordance with Article 103. If there is no challenge at the time of election, and a person who is disqualified at that time becomes a member, Article 103 cannot be invoked. This would be determined under law made by Parliament.106 Indeed, the Supreme Court has reiterated that if a person who has incurred a disqualification offers himself as a candidate and if no one objects and the Returning Officer accepts his candidature and if he is elected and there is no petition challenging the election, then he would continue as a member despite the disqualification.107
This principle can lead to an interesting situation. A person was found to have falsely declared himself to be on the electoral rolls (by impersonating another person with the same name) while filing nominations to the Tamil Nadu Legislative Assembly. He was elected and became a member of the assembly. Another contestant discovered this false declaration a year later. By that time, the statutory limitation of forty-five days for filing an election petition had expired. He approached the High Court with a writ petition under Article 226. A single judge held the writ was not maintainable given the bar on courts under Article 329. On appeal, the division bench set aside the election using its powers under Article 226. On further appeal, the Supreme Court ruled that the power under Article 226 has to be interpreted widely and can be exercised when there is any Act that is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. The appellant was not entitled to sit in the assembly. The period of the assembly was over; otherwise, the Election Commission could have been intimated to declare the seat vacant. The Court held that it was for the Page Id: 287ReferencesRepresentation of the People Act (India [in]) Act No 43 of 1951(p. 288) State government to recover the penalty under Article 193 for his sitting in the assembly while knowing that he was not qualified to do so.108
There are several elements to this process of disqualification: (a) there must be a question regarding the disqualification, which is referred to the President; (b) the President obtains the opinion of the Election Commission; and (c) his decision is final. It is only after the President takes the decision that the seat becomes vacant. The question of whether a particular member has incurred a disqualification can be referred for the decision of the President by any citizen by means of making an application to the President. In this case, the President does not act in accordance with the advice of the Council of Ministers as specified in Article 74(1). He is bound to obtain the opinion of the Election Commission and act in accordance with such opinion.109 It is the opinion of the Election Commission that is in substance decisive, and the Election Commission may inquire into the matter before giving its opinion.110 The Supreme Court has ruled that the Election Commission acts in a quasi-judicial capacity while adjudicating upon the disqualification of a sitting member, and has to follow principles of natural justice.111
Article 101 lays down several ways in which a seat may become vacant. As per Article 101(1), if a person becomes a member of both Houses, Parliament may by law determine the vacation of the seat in one House.112 Article 101(2) specifies that the seat of a member of either House of Parliament will become vacant if he is elected to a State legislature, unless he resigns from the seat in the State legislature within a time to be specified in rules made by the President.113 Article 101(3)(a) states that the seat will become vacant on a member being subject to any disqualification under Articles 102(1) or 102(2). Article 101(3)(b) allows a member to resign from his seat by writing under his hand addressed to the Speaker/Chairman, and the seat will become vacant when the Speaker or Chairman accepts the resignation. The Speaker/Chairman may make an inquiry and reject the resignation if he finds that it was not voluntary or genuine. Article 101(4) allows the House to declare a seat vacant if a member is absent for a period of sixty days, not counting any period when the House is prorogued or adjourned for four or more consecutive days.
The vacation of a seat will occur only after the disqualification is decided. If the vacation is being effected under Articles 101(1), 101(2), 101(3)(b), or 101(4), there is no process of adjudication and the seat is vacated automatically at the time of disqualification. In the Page Id: 288ReferencesConduct of Election Rules (India [in])Prohibition of Simultaneous Membership Rules (India [in]) Ministry of Law Notification No F 46/50-CRepresentation of the People Act (India [in]) Act No 43 of 1951(p. 289) case of Article 101(3)(a), there may be a question on whether the member has incurred disqualification. If the member accepts disqualification, then the seat is immediately vacated. Otherwise, it is vacated when the decision is made by the President in the case of disqualification under Article 102(1) or by the Chairman/Speaker in the case of disqualification under Article 102(2).114 However, the member is treated as having ceased to be a member of the House on the date when he became subject to disqualification.115
1 Constitution of India 1950, art 79.
2 Constitution of India 1950, art 80.
3 Constitution of India 1950, sch 4.
4 Constitution of India 1950, art 80.
5 Constitution of India 1950, art 81.
6 Representation of the People Act 1950, s 3, sch 1.
7 Constitution of India 1950, art 331.
8 Constitution of India 1950, art 107.
9 Constitution of India 1950, art 108. The three Bills were the Dowry Prohibition Bill 1961, the Banking Service Commission (Repeal) Bill 1978, and the Prevention of Terrorism Bill 2002.
10 Constitution of India 1950, art 109.
11 Constitution of India 1950, art 75(3).
12 Constitution of India 1950, art 249.
13 Constitution of India 1950, art 312.
14 Constitution of India 1950, art 368.
15 Constitution of India 1950, arts 168(1) and 170.
16 Constitution of India 1950, art 168(2). The States are Andhra Pradesh, Bihar, Jammu and Kashmir, Karnataka, Maharashtra, Telangana, and Uttar Pradesh.
17 Constitution of India 1950, art 169.
18 Constitution of India 1950, art 198.
19 Constitution of India 1950, art 197.
20 Constitution (Seventh Amendment) Act 1956, Statement of Objects and Reasons.
21 Constitution of India 1950, art 81.
22 Two-Member Constituencies (Abolition) Act 1961.
23 Constitution (Forty-second Amendment) Act 1976.
24 Constitution (Eighty-fourth Amendment) Act 2002 changed this to the 1991 census. However, before the Amendment was brought into effect, Constitution (Eighty-seventh Amendment) Act 2003 changed the reference to the 2001 census.
25 Constitution (Eighty-fourth Amendment) Act 2002, Statement of Objects and Reasons.
26 Constitution of India 1950, art 170.
27 Constitution of India 1950, art 171.
28 Constitution of India 1950, art 327.
29 Constitution of India 1950, art 328.
30 Constitution of India 1950, art 329.
31 Meghraj Kothari v Delimitation Commission AIR 1967 SC 669.
32 NP Ponnuswami v Returning Officer, Namakkal AIR 1952 SC 64; Mohinder Singh Gill v Chief Election Commissioner (1978) 1 SCC 405.
33 Constitution of India 1950, art 84.
34 Pashupati Nath Singh vs Harihar Prasad Singh AIR 1968 SC 1064.
35 Constitution of India 1950, arts 99 and 188.
36 Constitution of India 1950, arts 104 and 193.
37 Representation of the People Act 1951, ss 2, 3, 4, 5, 5A, and 6.
38 Representation of the People Act 1950, s 16.
39 Representation of the People Act 1951, s 62.
40 Chief Election Commissioner v Jan Chaukidar (2013) 7 SCC 507.
41 In the Representation of the People Act 1951, as it was originally enacted, it specified different conditions for Part A, Part B, Part C States and Ajmer, Coorg, Manipur, and Tripura.
42 Representation of the People Act 1951, s 3. The Section was amended through the Representation of the People (Amendment) Act 2003.
43 Kuldip Nayar v Union of India (2006) 7 SCC 1.
44 Kuldip Nayar (n 43) .
45 Constitution of India 1950, art 102.
46 Constitution of India 1950, art 191.
47 Constitution of India 1950, art 102(1)(a) and Explanation to art 102(1).
48 Srimati Kanta Kathuria v Manak Chand Surana (1969) 3 SCC 268 , citing Great Western Railway Company v Bater  AC 1.
49 Yugal Kishore Sinha v Nagendra Prasad Yadav AIR 1964 Pat 543.
50 Banomali Behera v Markanda Mahapatra AIR 1961 Ori 205.
51 Satya Prakash v Bashir Ahmed Qureshi AIR 1963 MP 316.
52 Ramappa v Sangappa AIR 1958 SC 937.
53 Gatti Ravanna v GS Kaggeerappa AIR 1954 SC 653.
54 Shibu Soren v Dayanand Sahay (2001) 7 SCC 425.
55 Jaya Bachchan v Union of India (2006) 5 SCC 266.
56 Divya Prakash v Kultar Chand Rana (1975) 1 SCC 264.
57 Biharilal Dobray v Roshan Lal Dobray (1984) 1 SCC 551.
58 Joti Prasad Upadhya v Kalka Prasad Bhatnagar AIR 1962 All 128.
59 DR Gurushantappa v Abdul Khuddus Anwar (1969) 1 SCC 466.
60 Satrucharla Chandrasekhar Raju v Vyricherla Pradeep Kumar Dev (1992) 4 SCC 404.
61 Ramappa v Sangappa AIR 1958 SC 937.
62 Guru Gobinda Basu v Sankari Prasad Ghosal AIR 1964 SC 254.
63 Parliament (Prevention of Disqualification) Act 1959.
64 Parliament (Prevention of Disqualification) Amendment Act 2006.
65 Parliament (Prevention of Disqualification) Amendment Act 2006, Statement of Objects and Reasons.
67 Constitution of India 1950, sch X.
68 The Constitution (Ninety-first) Amendment Act 2003.
69 These Articles provide the Supreme Court with the power to grant special leave to appeal from the decision of any court or tribunal, and High Courts to issue writs and the power of superintendence over all courts within its territorial jurisdiction.
70 Kihoto Hollohan v Zachillhu (1992) Supp (2) SCC 651.
71 Kihoto Hollohan (n 70) –.
72 Kihoto Hollohan (n 70).
73 Kihoto Hollohan (n 70) .
74 Ravi S Naik v Union of India (1994) Supp (2) SCC 641 .
75 Ravi S Naik (n 74) .
76 ‘Decision of the Hon’ble Speaker, Lok Sabha on the petition given by Shri Rajesh Verma, MP against Shri Mohd. Shahid Akhlaque, MP under the Tenth Schedule to the Constitution’, Lok Sabha Bulletin-Part II, No 4424, dated 28 January 2008.
77 G Vishwanathan v Hon’ble Speaker Tamil Nadu Legislative Assembly (1996) 2 SCC 353 .
78 G Vishwanathan (n 77) .
79 Dr Kashinath G Jalmi v The Speaker (1993) 2 SCC 703.
80 Kihoto Hollohan (n 70) .
81 Kihoto Hollohan (n 70) .
83 Constitution (Fifty-second Amendment) Bill 1985, Statement of Objects and Reasons.
85 The Constitution (Amendment) Bill 2010 (Bill No 16 of 2010) introduced by Manish Tewari, MP.
86 Representation of the People Act 1951, s 8(1).
87 Representation of the People Act 1951, s 8(2).
88 Representation of the People Act 1951, s 8(3).
89 Representation of the People Act 1951, s 8(4).
90 Lily Thomas v Union of India (2013) 7 SCC 653.
91 Representation of the People Act 1951, s 9.
92 Representation of the People Act 1951, s 9A.
93 Representation of the People Act 1951, s 10.
94 Representation of the People Act 1951, s 10A.
95 K Prabhakaran v P Jayarajan (2005) 1 SCC 754 .
96 Manni Lal v Parmai Lal (1970) 2 SCC 462.
97 K Prabhakaran (n 95) .
98 K Prabhakaran (n 95) .
99 K Prabhakaran (n 95) –.
100 K Prabhakaran (n 95) .
101 Lily Thomas (n 90). The judgment makes a distinction between obtaining a stay on the sentence and a stay on the conviction, and states that in the latter case, the disqualification ceases to be operative from the date of order of stay of conviction . However, the Court also notes that the seat is vacated immediately upon disqualification according to Article 101(3)(a) read with Article 102(1)(e) [20–21]. This gives rise to the question of what happens to a Member of Parliament if he obtains a stay on the conviction. Does the vacation of the seat become nullified (and does he regain his seat), or is the effect only that of him being eligible for contesting elections again? Unfortunately, the judgment does not provide clarity on this question.
102 Public Interest Foundation v Union of India, Supreme Court Writ Petition (Civil) No 536/2011.
103 Public Interest Foundation v Union of India, Supreme Court Writ Petition (Civil) No 536/2011, order dated 16 December 2013.
105 Public Interest Foundation v Union of India, Supreme Court Writ Petition (Civil) No 536/2011, order dated 10 March 2014.
106 Election Commission v Saka Venkata Subba Rao AIR 1953 SC 210. At the time of this judgment, there was no law that provided for such cases. Subsequent amendments to the Representation of the People Act 1951 enable the High Court to declare the election of a returned candidate to be void if he is found to have been disqualified on the date of his election (s 100).
107 Consumer Education and Research Society v Union of India (2009) 9 SCC 648.
108 K Venkatachalam v A Swamickan (1999) 4 SCC 526.
109 Election Commission of India v NG Ranga (1978) 4 SCC 181.
110 Brundaban Nayak v Election Commission of India AIR 1965 SC 1892. This was with respect to the analogous provisions with respect to State legislatures in art 192.
111 Election Commission of India v Dr Subramanian Swamy (1996) 4 SCC 104.
112 The Representation of the People Act 1951 states that (a) if a person who has not taken his seat in either House gets chosen to both Houses, he may intimate to the Election Commission which House he wishes to serve within 10 days of the later of the dates on which he is chosen; in the absence of such intimation, his seat in the Rajya Sabha will become vacant (s 68); (b) if a person who is the member of one House gets chosen to the other House, his seat in the first House is declared vacant on the date he is so chosen (s 69). If a person is elected to more than one seat in either House, he has to resign all but one seats within 14 days of the last of the dates of being so elected, failing which all seats will be declared vacant (s 70 and Rule 91 of the Conduct of Election Rules 1961).
113 The Prohibition of Simultaneous Membership Rules 1950 provides 15 days to resign from the State legislature.
114 Consumer Education and Research Society (n 107).
115 PV Narasimha Rao v State (CBI/SPE) (1998) 4 SCC 626.
116 According to the 2011 census, Kerala’s population is 33.4 million, while that of Rajasthan is 68.55 million. Kerala has 20 twenty seats and Rajasthan has 25 seats in the Lok Sabha.