Disqualification Of member Of Parliament

The disqualification of members of Parliament is a critical aspect of ensuring accountability, integrity, and adherence to constitutional and legal principles in India's democratic framework. Members of Parliament (MPs) hold significant responsibilities, and their eligibility to continue in office is governed by clear legal frameworks to uphold the sanctity of public office.

Disqualification can arise from various factors, including holding an office of profit, criminal convictions, defection, or issues related to citizenship. Key legal provisions such as Article 102 of the Indian Constitution, the Representation of the People Act, 1951, and landmark judgments like Lily Thomas vs. Union of India shape the framework for disqualification.

This guide explores the constitutional provisions, legal statutes, and judicial interpretations governing the disqualification of members of Parliament and discusses its political, judicial, and public implications.

Legal Framework For Disqualification Of Members Of Parliament

There are following legal frameworks dealing with disqualification of MPs:

Constitutional Provisions

Article 102 of Indian Constitution provides for the disqualifications of MPs. It provides for the following grounds for disqualification of membership:

• Office of profit: A person holding any office of profit under the Government of India or any State government is disqualified to become a member of Parliament, unless Parliament by law otherwise prescribes.
• Mental incapacity or bankruptcy: A person is disqualified if he suffers from unsound mind and is declared so by a competent court or if he is an undischarged insolvent.
• Citizenship issues: Not having Indian Citizenship; voluntarily acquiring citizenship in some foreign states shall also come into disqualification grounds.
• Disqualification by law: A person can be disqualified by or under any law made by Parliament.
• Disqualification on grounds of defection: This is dealt with under the Tenth Schedule of the Constitution. Tenth Schedule provides for the following grounds of disqualification:
  • A member of a House belonging to a political party can be disqualified if he voluntarily gives up his membership of his political party.
  • If he votes or abstains from voting contrary to the directions of his political party, if such action is not condoned within fifteen days, then also he may be disqualified.
  • An elected member not established by a political party is disqualified if he joins one after the election.
  • A nominated member is disqualified if he joins a political party after six months of taking his seat.
• Vacation of Seat: A member's seat can be vacated if they become liable to any of the above disqualifications or if they resign and the resignation is accepted by the Chairman or Speaker. Moreover, if a member remains absent from all meetings for sixty days without permission, the House may declare their seat vacant.
• Certain offenses, such as defamation, can lead to the disqualification of a Member of Parliament.

Representation Of The People Act, 1951

Section 8 of the Representation of the People Act 1951 provides for following additional grounds for disqualification of an MP:

• An MP will be disqualified from holding public office following criminal convictions. These crimes include offences related to promoting enmity, bribery, rape, cruelty to women, and various other offences under specific Acts.
• Conviction penalties range from a six-year disqualification for fines to disqualification from the date of conviction plus a further six years after release for imprisonment, with exceptions for parliamentary members.

The legal frameworks governing the disqualification of MPs are often influenced by various forms of delegated legislation.

Key Case Law On Disqualification Of Members Of Parliament

Following is the landmark judgement on the disqualification of an MP:

Lily Thomas vs. Union Of India & Ors (2013)

In this case, the Supreme Court of India held the following key observations relating to the disqualification of members of Parliament and State Legislatures:

• Parliament's power to legislate on disqualifications: The court held that, Parliament's right to enact statutes regarding disqualification for membership in either House of Parliament or one of the States' Legislature come from Articles 102(1)(e), and 191(1) (e), of the constitution and not due to Articles 246(1), Entry 97 of the List I under the Seventh schedule, or from Article 248 of the constitution. These articles enable the Parliament to legislate on matters of disqualification for both selection as a member and for remaining as a member.
• Same disqualifications for all: The court decided that Articles 102(1)(e) and 191(1)(e) mandatorily call for the same disqualifications on a person getting elected as a member of Parliament or a State Legislature and a person already a member. It cannot be in the realm of Parliament to provide different laws for these two groups of persons.
• Sub-section (4) of Section 8, Representation of the People Act, 1951: The sub-section (4) of section 8 of the Representation of the People Act, 1951 was held by the court to be ultra vires of the Constitution. This subsection provided that a disqualification resulting from a conviction would not take effect for a sitting member of Parliament or a State Legislature for three months, or until an appeal or revision was disposed of, if filed within that period. The court found that this provision violated Articles 101(3)(a) and 190(3)(a) of the Constitution, which state that a member's seat becomes vacant immediately upon incurring a disqualification. As stated by the court, Parliament lacks the authority to postpone the date when a disqualification becomes effective for a sitting member.
• Automatic vacancy: The court clarified that under Articles 101(3)(a) and 190(3)(a), a member's seat becomes vacant automatically upon being disqualified. This vacancy does not depend on a decision by the President or Governor.
• Impact of stay of conviction: The court relied on earlier decisions and explained that where an Appellate Court or High Court stays a conviction, the disqualification arising from that conviction no longer operates. This means that a sitting member whose conviction is stayed can remain in his office. The court also clarified that a stay of conviction is not the rule, but an exception.

Implications

Disqualification of an MP has following implications:

Political Impact

• Loss of representation: Disqualification affects the strength of the party in the legislature, and may even shift the balance of power.
• Governance impact: The ruling party will be handicapped in passing legislation or even ensuring stability if its majority is reduced.
• By-Elections: The process of disqualification triggers by-elections that causes an administrative and financial burden.

Public Perception

• Restoration of integrity: Effective enforcement of disqualification provisions restores public trust in governance.
• Potential for bias: Public opinion may change in case of perceived political or inconsistent disqualifications.
• Greater accountability: Disqualification serves as an effective reminder regarding the observance of ethical and legal principles.

Judicial And Electoral Integrity

• Role of judiciary: Judicial examination in disqualification matters strengthens the rule of law without bias.
• Electoral accountability: Disqualifications underscore that campaigning and political conduct must be both lawful and ethical.

Conclusion

The disqualification of Members of Parliament (MPs) is a crucial component of the democratic framework, ensuring that the integrity of the parliamentary process is upheld. The legal provisions governing such disqualifications, including the Indian Constitution, the Representation of the People Act, and the Tenth Schedule, provide a comprehensive system to maintain legislative discipline. The landmark Lily Thomas vs. Union of India judgment further clarified the legal grounds and procedures for disqualification, ensuring consistency and the automatic effect of disqualification upon conviction. While disqualification serves to promote accountability and restore public trust in the political system, it also carries significant political, governance, and public perception impacts. Ultimately, these measures play a vital role in sustaining the credibility of parliamentary democracy and reinforcing the importance of ethical conduct for public officeholders.

Frequently Asked Questions (FAQs)

Disqualification of Members of Parliament (MPs) is a critical aspect of maintaining the integrity of the legislative process. Below are some frequently asked questions (FAQs) that provide further clarity on the legal frameworks, processes, and implications of MP disqualification.

Q1.What are the grounds for disqualification of MPs in India?

The grounds for disqualification include holding an office of profit, mental incapacity, bankruptcy, issues related to citizenship, defection, and criminal conviction under the Representation of the People Act, 1951. Additionally, MPs can be disqualified for failing to attend meetings or voluntarily giving up their membership from a political party.

Q2.What does the Tenth Schedule of the Indian Constitution deal with?

The Tenth Schedule addresses the disqualification of MPs on the grounds of defection. It specifies that MPs can be disqualified for voluntarily leaving their political party or voting against the party’s directions, among other related situations.

Q3.How does the Lily Thomas vs. Union of India judgment impact disqualification?

The judgment clarified that disqualification resulting from a conviction takes immediate effect, reinforcing the constitutional principle that a member's seat becomes vacant upon disqualification, irrespective of appeals or revisions. It also ruled that the Parliament cannot delay the effect of disqualification.

Q4.What is the impact of disqualification on public perception?

Disqualification can restore public trust by reinforcing integrity in governance. However, if perceived as politically motivated or inconsistent, it could lead to skepticism about the fairness of the process. Ensuring transparency and consistency in enforcement is key to maintaining public confidence.

Q5.Are there any exceptions to the disqualification rules for MPs?

Yes, under certain conditions, disqualification may not immediately take effect if a court stays a conviction. However, this is an exception rather than the rule. The stay on conviction allows the affected MP to retain their position until the appeal process is concluded.

References

• https://himachal.nic.in/WriteReadData/l892s/6_l892s/1555913943.pdf
• https://www.eci.gov.in/eci-backend/public/uploads/monthly_2019_03/2098794446_FormsandinformationrelatedwithNomination_pdf.1165add67a57dfa50e224e9f32e9b43b