DISQUALIFICATION OF MLAs

DISQUALIFICATION OF MLAs

Subject : Polity

Context : Recently, the Goa Assembly Speaker has agreed to pass orders on a Congress leader’s petition seeking disqualification of 10 party MLAs who had joined the opposition in July 2019.

Concept :

Constitutional Provisions for Disqualification of MLAs

• Under the Constitution, a person shall be disqualified for being chosen as and for being a member of the legislative assembly or legislative council of a state:
• If he holds any office of profit under the Union or state government (except that of a minister or any other office exempted by state legislature),
• If he is of unsound mind and stands so declared by a court,
• If he is an undischarged insolvent,
• If he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance to a foreign state, and
• If he is so disqualified under any law made by Parliament.

Parliamentary Provisions for Disqualification of MLAs

• The Parliament has prescribed a number of additional disqualifications in the Representation of People Act (1951) and the same is followed by Legislative Assembly and Council:
• He must not have been found guilty of certain election offences or corrupt practices in the elections.
• He must not have been convicted for any offence resulting in imprisonment for two or more years.
• But, the detention of a person under a preventive detention law is not a disqualification.
• He must not have failed to lodge an account of his election expenses within the time.
• He must not have any interest in government contracts, works or services.
• He must not be a director or managing agent nor hold an office of profit in a corporation in which the government has at least 25 per cent share.
• He must not have been dismissed from government service for corruption or disloyalty to the state.
• He must not have been convicted for promoting enmity between different groups or for the offence of bribery.
• He must not have been punished for preaching and practicing social crimes such as untouchability, dowry and sati.
• The governor’s decision is final on the question whether a member has become subject to any of the above disqualifications.
• The governor should obtain the opinion of the Election Commission and act accordingly.

Disqualification on Ground of Defection

• The Constitution lays down that a person shall be disqualified for being a member of either House of state legislature if he is so disqualified on the ground of defection under the provisions of the Tenth Schedule.
• The question of disqualification under the Tenth Schedule is decided by the Chairman, in the case of legislative council and, Speaker, in the case of legislative assembly.
• In 1992, the Supreme Court ruled that the decision of Chairman/Speaker in this regard is subject to judicial review.