Disqualification of MPs

Syllabus: GS2/Polity and Governance

Context

• Karnataka MLA has been disqualified from the State Legislative Assembly following his conviction by the Principal Special Judge for CBI cases in Hyderabad.

Disqualification of MPs & MLAs

• The disqualification of a Member of the Legislative Assembly (MLA) in India is primarily governed by Article 191 of the Constitution, the Representation of the People Act, 1951, and the Tenth Schedule (anti-defection law).
• The disqualification of a Member of Parliament (MP) in India is governed primarily by Article 102 of the Constitution, Representation of the People Act, 1951, along with the Tenth Schedule (anti-defection law).
• Disqualification Under Article 102
  • Holds any office of profit under the Government of India or State, unless Parliament exempts the office by law.
  • Declared by a competent court to be of unsound mind.
  • Legally declared insolvent and not yet discharged.
  • Not a citizen of India, or has voluntarily acquired citizenship of a foreign State, or shows allegiance to a foreign State.
• Disqualification by Law: The Representation of the People Act, 1951 provides that a person will be disqualified if convicted and sentenced to imprisonment for two years or more. 
  • Such a person is disqualified for the period of imprisonment and a further six years.
• Defection under the Tenth Schedule:
  • If the MP voluntarily gives up membership of their party.
  • If the MP votes/abstains contrary to party directions without permission.
  • If any independently elected member joins any political party; and
  • If any nominated member joins any political party after the expiry of six months.

Authority to Decide Disqualification

• MPs: President of India decides disqualification under Article 103, after consulting the Election Commission.
  • For defection (Tenth Schedule), the Speaker (Lok Sabha) or Chairman (Rajya Sabha) decides.
• MLAs: The Governor decides disqualification under Article 192, after obtaining the opinion of the Election Commission of India.
  • For defection cases under the Tenth Schedule, the Speaker of the Legislative Assembly makes the decision.

Challenges

• Delayed Decisions by Presiding Officers: Disqualification cases under the Tenth Schedule (anti-defection) are decided by the Speaker (MLA) or Chairman (MP).
  • There are no time limits specified in the Constitution, leading to indefinite delays.
• Political Bias and Conflict of Interest: The presiding officer (Speaker/Chairman) usually belongs to a political party, leading to allegations of partiality.
• Judicial Delays: Though courts can review decisions under Articles 103 (MPs) and 192 (MLAs), the process is often slow.
  • Interim reliefs and long-pending appeals delay finality, allowing disqualified members to continue holding office.
• Representation of the People Act Limitations: Certain criminal cases lead to automatic disqualification only after conviction.
  • As trials are often delayed, accused persons can continue to contest and hold office for years.
• Ambiguity in Office of Profit Cases: Lack of a clear definition of what constitutes an “office of profit” has led to legal ambiguity.
• Public Perception and Accountability: Even when legally disqualified, politicians can contest elections again after short bans.
  • This undermines public trust in the system and dilutes accountability.

Related Verdicts of Supreme Court

• Union of India vs Association for Democratic Reforms (2002): Voters’ right to know criminal records of candidates was established. However, the apex court did not extend this to lifetime bans.
• The CEC vs Jan Chaukidar case (2013): It upheld that persons who are under trial prisoners cease to be ‘electors’ and hence not qualified to contest elections.
  • However, the Parliament amended the act in 2013 to overturn this judgment allowing under trial prisoners to contest elections.
• Lily Thomas (2013)Case: The court struck down section 8(4) of the RP Act, 1951, that allowed a sitting legislator to continue as a member even after being convicted if they filed an appeal, as unconstitutional and against political justice.
  • After this judgment, a sitting legislator is disqualified immediately after the sentencing for a conviction.
• Public Interest Foundation vs Union of India (2018): Candidates facing serious criminal charges must publicly disclose their criminal records in election affidavits. The apex court left the lifetime ban decision to Parliament.

Reforms

• Strengthening the Anti-Defection Law: The Tenth Schedule, introduced in 1985, disqualifies MPs who voluntarily give up party membership or vote against party directives.
  • The 52nd Constitutional Amendment (1985) aimed to curb political instability by preventing frequent party-switching.
  • The 91st Constitutional Amendment (2003) removed the provision allowing one-third of legislators to split from a party, making defections more difficult.
• Addressing Loopholes in Disqualification Process: The Speaker or Chairman of the House decides on disqualification, but concerns over bias and delays have led to calls for judicial oversight.
  • Expert committees have recommended that disqualification decisions be made by the President (for MPs) or Governor (for MLAs) on the advice of the Election Commission of India, ensuring greater impartiality.
• Private Member’s Bills for Reform: Some MPs have proposed Private Member’s Bills to introduce stricter timelines for disqualification decisions and reduce political interference.
  • There is growing demand for automatic disqualification in cases of party defection, rather than relying on Speaker discretion.

Conclusion

• The disqualification of Members of Parliament in India is governed by a robust legal and constitutional framework aimed at upholding the integrity of the legislature. 
• Landmark judicial interventions have strengthened this framework by promoting immediate accountability.
  • However, persistent challenges like political bias in disqualification decisions and the criminalization of politics underline the need for further reforms. 
• Strengthening these provisions is essential to maintain public trust in democratic institutions and ensure a clean and accountable political system.

Source: IE