Disqualification of Legislators in India – Explained, pointwise 

Introduction

Recently, the disqualification of legislators has been widely discussed due to two events. The first is the disqualification of a Member of Parliament after being sentenced to a two-year jail term by a Surat court in a 2019 defamation case. The second is an ongoing hearing by the Constitutional Bench of the Supreme Court of India on a petition filed during the political crisis in Maharashtra last year (2022).

The Supreme Court has observed that any member of the Legislative Assembly who goes against the party’s in-house may face disqualification. These events have brought the debate on the disqualification of legislators to the forefront of public discussion.  

What are the constitutional provisions for the disqualification of legislators?  

Articles 102 & 191: The basic disqualification criteria for an MP are outlined in Article 102 of the Constitution, while those for an MLA are outlined in Article 191. Article 102 empowers the Parliament to enact legislation governing the conditions of disqualification.  

Grounds for disqualification under the Constitution: These include conditions such as holding a profit-making position in the Government of India or a state government, Being of unsound mind, being an unpaid insolvent, not being an Indian citizen, or acquiring citizenship of another country.  

Tenth Schedule: A person is ineligible to serve as a member of the Legislative Assembly (MLA) or the Legislative Council (MLC) if: a) An elected official voluntarily withdraws from a political party, b) An elected member votes or abstains from voting in such House in defiance of any direction issued by his political party or anyone authorised to do so.  

Note: The power to decide on the disqualification of legislators under the tenth schedule rests with the Speaker of the Lok Sabha (Lower House of Parliament) and the Speaker of the Legislative Assembly concerned. However, the decision of the Speaker can be challenged in a court of law.  

Is there legal protection available against the disqualification of legislators?  

The legal protection available against the disqualification of legislators in India:  

Judicial Review: 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.  

High Court and Supreme Court: If a legislator feels that he/she has been wrongly disqualified or that the decision to disqualify him/her is arbitrary or mala fide, he/she can file a petition in the High Court or the Supreme Court challenging the decision of the Speaker. For example, The Kerala High Court’s order suspending the disqualification of the Lakshadweep MP was notified by the Lok Sabha Secretariat 

Examination of facts: The court can examine the facts of the case and the legality of the decision and can set aside the decision if it is found to be illegal or unconstitutional.  

Protection against arbitrary or illegal disqualification: 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.  

What are the Important Supreme Court Judgements regarding the disqualification of legislators?  

There have been several important Supreme Court judgments regarding the disqualification of legislators in India. Some of the notable ones are: 

Kihoto Hollohan vs. Zachillhu and Others (1992): In this case, the Supreme Court upheld the validity of the Tenth 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.  

Jaya Bachchan vs. Union of India and Others (2006): In this case, the Supreme Court held that the appointment of Jaya Bachchan as a member of the Rajya Sabha (Upper House of Parliament) was invalid as she was holding an office of profit at the time of her appointment. The court observed that the disqualification of a legislator on the ground of holding an office of profit is not limited to offices which involve the receipt of a salary or a fee, but includes any office which carries with it the right to remuneration or profit.  

Ravi S. Naik vs. Union of India and Others (1994): In this case, the Supreme Court 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.  

Rajendra Singh Rana vs. Swami Prasad Maurya and Others (2007): In this case, the Supreme Court held that a legislator can be disqualified under the anti-defection law even if he/she abstains from voting in the House. The court observed that abstention from voting on a motion of confidence or no confidence is not a neutral act, but is a conduct which facilitates the success of one side or the other. 

In Lily Thomas v. 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.  

Krishnamurthy v. Sivakumar & Ors (2015): The SC held that disclosure of criminal antecedents (especially heinous crimes) of a candidate at the time of filing of nomination paper as mandated by law was a categorically imperative. 

Lok Prahari v Union of India (2018): In this case SC clarified that a disqualification triggered by a conviction will be reversed if the conviction is stayed by a court. Ashwini Kumar Upadhyay vs. Union of India and Others (2021): In this case, the Supreme Court directed the central government to expedite the process of setting up special courts to try cases against MPs and MLAs, including cases related to the disqualification of legislators.  

Sachin Choudhary vs. Rajiv Singh and Others (2021): In this case, the Supreme Court held that a legislator cannot be disqualified on the ground of non-disclosure of criminal cases pending against him/her at the time of filing the nomination papers, as the law requires disclosure only of convictions and not pending cases. 

What are the provisions available for the removal of disqualification?  

Provisions available for the removal or disqualification of Indian legislators are as follows:

Application to the President/Governor: A disqualified legislator can make an application to the President or the Governor, as the case may be, for the removal of disqualification. For example, in 2018, the Karnataka Governor received an application from a disqualified MLA seeking the removal of disqualification. The Governor referred the matter to the Election Commission for its opinion.  

Election petition: A disqualified legislator can also file an election petition in the appropriate court challenging the election of the winning candidate. If the election petition is successful, the disqualification is automatically removed.

For example, in 2019, an MLA was disqualified from the Karnataka Assembly on charges of anti-party activities. He filed an election petition challenging the election of the winning candidate, and the Karnataka High Court set aside his disqualification.  

Legislative pardon: The legislature can pardon a disqualified legislator by passing a resolution with a two-thirds majority. The resolution must be passed in both Houses of Parliament or the State Legislature.

For example, in 2019, the Maharashtra Legislative Council passed a resolution pardoning an MLA, who was disqualified for submitting a false affidavit.  

Court order: A disqualified legislator can approach a court of law challenging the disqualification. If the court finds that the disqualification was illegal, the disqualification is removed.

SC in its ruling in Lok Prahari v Election Commission of India & Ors (2018), clarified that a disqualification triggered by a conviction will be reversed if the conviction is stayed by a court.  

What are the challenges associated with the disqualification of legislators?  

Legal challenges: Disqualifications can be challenged in courts of law, which can lead to a prolonged legal process. For example, in 2017, the Delhi High Court set aside the disqualification of 20 Aam Aadmi Party (AAP) MLAs, who had been disqualified on charges of holding offices of profit. The case went on for several months before the court finally gave its decision.  

Political challenges: Disqualifications can have political implications, and can lead to accusations of political vendetta.

Enforcement challenges: Enforcing disqualifications can be a challenge, especially if the disqualified legislator refuses to vacate their seat. For example, in 2017, the Election Commission of India disqualified a political leader from Tamil Nadu Assembly but refused to vacate his seat, leading to a legal tussle.  

Impact on voters: Disqualifications can impact the voters who elected the disqualified legislator, who may feel that their mandate has been nullified. For example, in 2019, the disqualification of 17 MLAs in Karnataka led to a sense of disillusionment among their voters, who felt that their elected representatives had been unfairly targeted.  

What should be done?  

Clear guidelines: There should be clear and unambiguous guidelines outlining the grounds for the disqualification of legislators, to ensure that the process is fair and transparent.  

Time-bound process: The process for disqualification of legislators should be time-bound, to ensure that it does not drag on indefinitely. For example, in 2018, the Delhi High Court directed the Election Commission of India to conclude the disqualification proceedings against AAP MLAs within three months.  

Strengthening the legal framework: The legal framework for the disqualification of legislators needs to be strengthened to ensure that it is clear, consistent and in line with democratic principles. This could include ensuring that the disqualification process is independent, impartial and non-partisan and that it provides for a fair hearing to the legislator concerned. For example, the Supreme Court of India has recommended that the disqualification process should be carried out by an independent authority, such as an ombudsman.  

Political neutrality: The disqualification process should be free from political interference, and should not be used as a tool for settling political scores. The process should be based on objective criteria, and should not be influenced by political considerations. For example, the Supreme Court of India has emphasised that disqualification should not be used as a means of political vendetta.  

Transparency: The process for disqualification of legislators should be transparent, and the public should be informed about the reasons for disqualification.

Strict enforcement: Once a legislator is disqualified, strict enforcement measures should be put in place to ensure that the disqualification is enforced in a timely and effective manner. This would help to prevent disqualified legislators from continuing to hold office and to ensure that the will of the people is respected.  

By taking these steps, it is possible to ensure that the process for disqualification of legislators is fair and transparent and that it upholds the principles of democracy and the rule of law. 

Sources: Indian Express (Article 1, Article 2, Article 3 and Article 4), The Hindu (Article 1 and Article 2) and Hindustan Times

Syllabus: GS 2: Indian Constitution and Polity – Parliament and State legislatures—structure, functioning, conduct of business, powers & privileges and issues arising out of these.