Table of Contents
The article highlights the grounds for disqualifying a person from being a member of either House of Parliament in India and mentions some of the electoral reforms introduced by the Supreme Court to ensure transparency in the election process.
Article 102 of the Constitution of India
It outlines the grounds for disqualifying a person for being a member of either House of Parliament. These include holding any office of profit under the Government of India or any State, being of unsound mind as declared by a competent court, being an undischarged insolvent, not being a citizen of India, voluntarily acquiring citizenship of a foreign state, or being disqualified under any law made by Parliament.
But a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State if he is a Minister either in the Union or the State.
Article 191 of the Constitution lays down a similar ground for disqualification from the membership of the State Legislature.
Article 102(e) of the Constitution of India allows Parliament to create laws that establish additional disqualification conditions. In line with this, the Parliament passed the Representation of People’s Act in 1951, laying down additional grounds for disqualifying members convicted of certain offenses.
Representation of the People’s Act, 1951
Section 8(3) of the Representation of the People’s Act, 1951 establishes a disqualification condition for individuals convicted of an offense and sentenced to imprisonment for at least two years. Such individuals will be disqualified for the next six years after their release. However, under Section 8(4) of the same act, the disqualification for sitting MPs/MLAs will not come into effect for three months after the date of conviction or until the court disposes of any appeals or applications for revision brought within three months.
But in Lily Thomas vs. Union of India, 2013, the Supreme Court struck down section 8(4) of the RPA, 1951, and held that the disqualification of convicted member occurs from the date of conviction.
Defection under the Tenth Schedule
The Tenth Schedule of the Indian Constitution outlines the grounds for disqualification of a member of Parliament due to defection. These include voluntarily giving up the membership of the political party they were elected from, voting or abstaining from voting against the directions of their political party, an independently elected member joining a political party, and a nominated member joining a political party after six months.
Previously, the decision of the Chairman in the case of Rajya Sabha and the Speaker in the case of Lok Sabha on the question of disqualification on the ground of defection was final. However, in Kihoto Hollohan vs. Zachillhu and Others (1992), the Hon’ble Supreme Court ruled that the decision of the Chairman or Speaker in case of disqualification on the ground of defection is subject to judicial review.
Based on the Dinesh Goswami report on Electoral Reforms, the Parliament enacted the Constitution (Ninety-first Amendment) Act, 2003, which deleted the provision in the Tenth Schedule which exempted members from disqualification on the ground of defection in case of a split in a political party. However, the disqualification on the ground of defection will not occur if the member’s original political party merges with another political party or if the member has not accepted the merger and opted to function as a separate group.
How the disqualification can be removed?
Section 11 of the Representation of People’s Act, 1951, empowers the Election Commission to reduce or remove the period of disqualification of a person after recording the reasons. The Election Commission exercised this power in 2019 when it reduced the period of disqualification of Prem Singh Tamang by five years. It enabled him to contest a by-election and remain in office as the Chief Minister of Sikkim.
The Hon’ble Supreme Court, in some very rare and exceptional cases, has stayed the conviction to enable the appellant to contest an election.
Supreme Court judgements related to the electoral reforms: –
The Hon’ble Supreme Court in the Union of India (UOI) v. Association for Democratic Reforms, 2002, held that every candidate contesting an election to the Parliament, State Legislatures, or Municipal Corporation has to declare their criminal records, financial records, and educational qualifications along with their nomination paper.
The Hon’ble Supreme Court in the Krishnamurthy v. Sivakumar & Or’s, 2015, held that disclosure of criminal antecedents (especially heinous crimes) of a candidate when filing of nomination paper as mandated by law was necessary.
The Hon’ble Supreme Court of India in the People for Union of Civil Liberties v. Union of India, 2013, introduced the option of NOTA (None of the Above) in elections.
The Hon’ble Supreme Court in the N Chandrababu Naidu v Union of India, 2019, ordered the Election Commission to increase the number of election booths that undergo VVPAT slip matching. The Voter Verified Paper Audit Trail (VVPAT) was introduced by the Election Commission in 2017 to enable voters to verify if their vote was cast correctly.
