Disqualification of Legislators

Disqualification of Legislators

News: The topic has been in news in recent times and it is important to study the constitutional provisions surrounding Disqualification of MP, MLA, MLC, legal protection available to them and some of the SC judgements pertaining to the issue.

What are Constitutional provisions for disqualification of Legislators?
 Article 102 – Basic disqualification criteria of a MP. The article empowers parliament to enact legislation governing grounds of disqualifications.
 Article 191 – Disqualification criteria concerning those of MLA.
 Other provisions within Constitution which laid conditions for Disqualification such as holding profitmaking position in government of India or state government, being of unsound mind, not being citizen of India, acquiring citizenship of other country and undischarged insolvent.

According to Schedule 10 (Anti-Defection Act), a person shall be disqualified as MLA or MLC when:
 An elected member voluntarily gives up his membership of a political party.
 An elected member votes or abstains from voting in such House contrary to any direction issued by his political party or anyone authorised to do so, without obtaining prior permission.

According to Representation of the People (RP) Act, 1951 a person shall be disqualified as MLA or MLC when:
 One is found guilty of an illegal practice in relation to election, and
 A person convicted of any offence and sentenced to imprisonment for varying terms under Sections 8 (1) (2) and (3).
Office of Profit - The MLA/MLC can also be disqualified on the Grounds of holding an office of Profit.

What legal protection is available against Disqualification of legislators?
 If a legislator feels she/he has been wrongly disqualified, then a petition can be filed in the SC or HC challenging the decision of Speaker.
 If a legislator is disqualified by the Speaker of the Lok Sabha or the Speaker of the Legislative Assembly, the decision can be challenged in a court of law through the remedy of judicial review.
 While the power to disqualify legislators rests with the Speaker of the Lok Sabha or the Speaker of the Legislative Assembly concerned, the courts act as a check on the exercise of this power and provide legal protection to legislators against arbitrary or illegal disqualification.

Important SC judgements regarding the disqualification of legislators:
 Kihoto Hollohan vs. Zachillhu and Others (1992) – Here, the SC upheld the validity of 10th schedule of the Constitution. The court ruled that the decision of the Speaker on the question of disqualification of a member is subject to judicial review, but the courts should not interfere unless the decision is mala fide, arbitrary or violative of the Constitution.
 Ravi S Naik vs. Union of India and Others (1994) – Here, the SC held that the power of the Speaker to disqualify a member under the Tenth Schedule is a quasi-judicial power and that the Speaker must give the affected member an opportunity to be heard before passing an order of disqualification.
 Jaya Bachchan vs Union of India and others (2006) – Here, the SC held that the appointment of Jaya Bachchan as a member of the Rajya Sabha was invalid as she was holding an office of profit at the time of her appointment.
 In Lily Thomas vs Union of India (2013) - The SC held that Section 8(4) of The Representation of the People Act, 1951 is unconstitutional which allows MPs and MLAs who are convicted to continue in office till an appeal against such conviction is disposed of. The court held that MP/ MLA convicted for two years or above would be disqualified immediately.

What are challenges associated with disqualification of legislators?
 Prolonged legal process - Disqualifications can be challenged in courts of law, which can lead to a prolonged legal process. Example – Disqualification of 20 AAP MLA’s on grounds of holding office of profit.
 Accusation of Political vendetta
 Enforcing disqualification of MLA’s can be a challenge in itself. Example – When a MLA from Tamil Nadu refused to vacate his seat in 2017
 Disqualifications can impact the voters who elected the disqualified legislator, who may feel that their mandate has been nullified.

What needs to be done?
 There should be clear guidelines and a time bound process for disqualifications should be followed.
 The legal framework concerning disqualifications should be consistent with democratic principles of Constitution.
 The disqualification process should be free from political interference, and should not be used as a tool for settling political scores. 

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