DISQUALIFICATION OF LEGISLATORS

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Recently 2 legislators from Uttar Pradesh (UP) were convicted of criminal charges, and one of them has been disqualified from the state assembly and the State’s Legislative Assembly secretariat declared his seat vacant.

Details

Section 8 of the Representation of the People Act (RPA), 1951, contains provisions to decriminalize electoral politics. There are two categories of criminal cases that attract disqualification upon conviction.
Under Category 1 - Disqualification for 6 years upon any conviction.
- If the punishment is fine, the 6-year period will start from the date of conviction, but if there is a prison sentence, the disqualification will start on the date of conviction and will continue up to the completion of 6 years after the date of release from jail.
- Major offences under this category:
  - Making speeches that cause enmity between groups.
  - Bribery during elections and other electoral offences.
  - Offences relating to rape and cruelty to women by husbands and relatives.
- Special laws such as the Protection of Civil Rights Act, Customs Act, Unlawful Activities (Prevention) Act, Laws for prevention of Sati, corruption, terrorism and insult to the national flag and national anthem etc, are among the category of offences that entail disqualification regardless of the period of punishment.
All other criminal provisions fall in the 2nd category under which at least 2 years in prison is needed for disqualification.

State Assembly

Articles 168 to 212 under the Part VI of the Indian Constitution deal with the organisation, composition, duration, procedures, powers, etc of the state legislature.
There is no uniformity in the structure of state legislatures.
- 22 states have only the lower House or Legislative Assembly (unicameral system).
- Only 6 states have two Houses (bicameral system): Andhra Pradesh, Telangana, Uttar Pradesh, Bihar, Maharashtra and Karnataka.
  - Both the lower house or Legislative Assembly and the Upper House or Legislative Council.
- Legislative Assembly;
  - Members are directly elected by the people.
  - Its maximum strength is fixed at 500 and minimum strength at 60. The strength varies from 60 to 500 depending on the population of the state.
    - However, in the case of Arunachal Pradesh, Sikkim and Goa, the minimum number is fixed at 30 and in the case of Mizoram and Nagaland, it is 40 and 46 respectively.
    - Some members of the legislative assemblies in Sikkim and Nagaland are also elected indirectly.
  - The term of a member is 5 years.
- Legislative Council;
  - Members are indirectly elected.
  - The minimum strength of the council is fixed at 40 and the maximum strength is fixed at 1/3rd of the total strength of the assembly.
    - The size depends on the size of the assembly of the concerned state.
  - The term of a member is 6 years.
- Election of a legislative council:
  - 1/3rd of members are elected by the members of local bodies in the state like municipalities, district boards, etc.,
  - 1/12th of members are elected by graduates of three years standing and residing within the state.
  - 1/12th of members are elected by teachers of three years standing in the state, not lower in standard than secondary school.
  - 1/3rd of members are elected by the members of the legislative assembly of the state from amongst persons who are not members of the assembly.
  - 1/6th of the members are nominated by the governor of the State.

Qualifications for membership of the State Legislature

He must be a citizen of India.
He must make and subscribe to an oath or affirmation before the person authorised by the Election Commission for this purpose. In his oath or affirmation, he swears;
- To bear true faith and allegiance to the Constitution of India.
- To uphold the sovereignty and integrity of India.
He must be at least 30 years of age in the case of the legislative council and at least 25 years of age in the case of the legislative assembly.
He must possess other qualifications prescribed by Parliament.
Parliament has laid down additional qualifications in the Representation of People Act (1951):
- A person to be elected to the legislative council must be an elector for an assembly constituency in the concerned state and to be qualified for the governor’s nomination, he must be a resident in the concerned state.
- A person to be elected to the legislative assembly must be an elector for an assembly constituency in the concerned state.
- He must be a member of a scheduled caste or scheduled tribe if he wants to contest a seat reserved for them. However, a member of scheduled castes or scheduled tribes can also contest from the General seat (not reserved).

Disqualifications of the member

If he holds any office of profit under the Union or state government.
If he is of unsound mind and stands so declared by a court.
If he is an undercharged 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.
If he is so disqualified under any law made by Parliament.
The Parliament has prescribed several additional disqualifications in the Representation of People Act (1951).
- 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 a 25% 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 practising social crimes such as untouchability, dowry and sati.
To decide whether a member has become subject to any of the above disqualifications, the governor’s decision is final.
- However, Governor should obtain the opinion of the Election Commission and act accordingly.
Indian Constitution also lays down that a person shall be disqualified from being a member of either House of state legislature if he is so disqualified on the ground of defection under the provisions of the 10th Schedule.
- The question of disqualification under the 10th Schedule is decided by the Chairman, in the case of the legislative council and, Speaker, in the case of the legislative assembly (and not by the governor).
- The decision of the Chairman/Speaker is subject to judicial review.