Article 102(1) of the Indian Constitution: Disqualifications for membership of Parliament | Kanoon.site
Kanoon.site ≐ Blog
« Article 102 Article 102(2) »

Article 102(1) of the Indian Constitution: Disqualifications for membership of Parliament

Part: V
Shorthand Notes: MP Disqualification Grounds: Office of Profit, Unsound Mind, Insolvency, Foreign State, Law by Parliament

The Indian Constitution lays down the framework for the Union Legislature, known as Parliament, consisting of the President, the Council of States (Rajya Sabha), and the House of the People (Lok Sabha). For the effective functioning and maintenance of the dignity and integrity of Parliament, it is essential to ensure that its members meet certain criteria and are not subject to influences or conditions that might compromise their independence or ability to discharge their duties.

Article 102 of the Constitution specifically addresses the qualifications and, more importantly, the disqualifications for a person to be chosen as, and for being, a member of either House of Parliament. Article 102(1) enumerates specific grounds upon which a person is deemed disqualified for such membership, serving as a crucial check against potential conflicts of interest, incapacity, or disloyalty.

Original Text

(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament—

(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;

(b) if he is of unsound mind and stands so declared by a competent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parliament.

Detailed Explanation

Article 102(1) lists five distinct grounds that disqualify an individual from being a member of either the Lok Sabha or the Rajya Sabha. These grounds aim to ensure that Members of Parliament (MPs) are capable, independent, loyal to the nation, and free from conflicting pecuniary interests.

  • Clause (a): Office of Profit: This is a significant ground for disqualification. An ‘office of profit’ is not explicitly defined in the Constitution, but generally refers to a position under the central or state government that carries some remuneration or allows the holder to influence or exercise executive power. The rationale is to prevent potential conflict of interest and undue influence from the executive branch. However, the clause includes an exception: Parliament is empowered to declare, by law, certain offices that do not disqualify their holders. This allows Parliament to balance the need for independence with the practical necessity of involving individuals in various governmental or quasi-governmental bodies. The Parliament (Prevention of Disqualification) Act, 1959, is an example of such a law.
  • Clause (b): Unsound Mind: This clause disqualifies a person who is of ‘unsound mind’ and has been formally declared as such by a competent court. This ensures that individuals representing the people are mentally capable of understanding and performing their legislative duties. The declaration by a competent court is a necessary condition to prevent arbitrary application of this ground.
  • Clause (c): Undischarged Insolvent: An ‘undischarged insolvent’ is a person who has been declared insolvent by a court but has not yet been relieved of their debts and liabilities. This disqualification is based on the premise that an individual who is unable to manage their personal finances might be susceptible to improper financial influences and may not be suitable for handling matters of public finance.
  • Clause (d): Citizenship and Allegiance: This clause addresses loyalty to the nation. It disqualifies a person who is not a citizen of India, or who has voluntarily acquired the citizenship of a foreign state, or who is under any acknowledgment of allegiance or adherence to a foreign state. This is fundamental to ensuring that MPs owe their sole allegiance to India. Voluntarily acquiring foreign citizenship automatically results in loss of Indian citizenship (as per the Citizenship Act, 1955), leading to disqualification under this clause. Acknowledging allegiance or adherence can refer to actions or declarations short of formally acquiring citizenship but demonstrating loyalty to a foreign power.
  • Clause (e): Disqualification by Law made by Parliament: This is a residuary clause that grants Parliament the power to make laws specifying additional grounds for disqualification. This provides flexibility to address future circumstances and ensure that the criteria for membership can evolve with societal needs and challenges. The most significant law made under this power is the Representation of the People Act, 1951 (RPA, 1951), which lists numerous other grounds for disqualification, such as conviction for certain offenses, corrupt practices, failure to lodge election accounts, dismissal for corruption or disloyalty from government service, and holding office as director/managing agent of a company where the government has at least 25% share, etc.

Detailed Notes

  • Article 102(1) lists grounds for disqualification from being chosen as or being a member of Parliament (Lok Sabha or Rajya Sabha).
  • Grounds for disqualification under Article 102(1) are:
    • Holding an office of profit under the Central or State Government.
      • Exception: Parliament can declare by law that certain offices do not disqualify.
      • The Parliament (Prevention of Disqualification) Act, 1959, is an example of such a law listing exempted offices.
    • Being of unsound mind and having been declared so by a competent court.
      • Requires a formal judicial declaration.
    • Being an undischarged insolvent.
      • Refers to someone declared insolvent by a court but not yet discharged from liabilities.
    • Not being a citizen of India.
      • Voluntarily acquiring foreign citizenship also leads to disqualification (and loss of Indian citizenship).
      • Being under any acknowledgment of allegiance or adherence to a foreign state.
    • Being disqualified by or under any law made by Parliament.
      • This is a residual power for Parliament to add more disqualification grounds.
      • The Representation of the People Act, 1951 (RPA, 1951) is the primary law made under this clause.
      • RPA, 1951 includes disqualifications based on:
        • Conviction for certain criminal offenses (leading to imprisonment).
        • Engaging in corrupt practices during elections.
        • Failure to lodge accounts of election expenses.
        • Dismissal from government service for corruption or disloyalty to the state.
        • Contracting with the government for supply of goods or execution of works.
        • Holding office as a director or managing agent of a company or corporation in which the government has a shareholding of at least 25%.
        • Being convicted for promoting enmity between different groups or for the offense of bribery or undue influence at an election.
        • Punishment for hoarding, profiteering, adulteration of food or drugs.
        • Punishment for the practice of sati.
  • The purpose of these disqualifications is to ensure members are free from conflicting interests, mentally capable, financially responsible, and loyal to India.
  • The question of whether a member is subject to any of these disqualifications is decided by the President, but the President must act according to the opinion of the Election Commission (Article 103).

Additional Comments

  • The concept of “office of profit” has been a recurring subject of judicial interpretation and legislative amendments to the list of exempted offices. It remains a sensitive area in Indian politics.
  • Clause (e) gives Parliament broad authority to legislate on disqualifications, making the Representation of the People Act, 1951, equally significant in determining who can and cannot be an MP.
  • Disqualifications can arise before contesting an election (preventing a person from being chosen) or after being elected (leading to a person ceasing to be a member).
  • The final authority to decide on questions of disqualification under Article 102 is the President, but the President is bound by the opinion of the Election Commission, as per Article 103. This introduces an independent body into the decision-making process.
  • Issues related to disqualification under Article 102 often end up in courts, particularly the Supreme Court, through judicial review of the President’s decision or the Election Commission’s opinion, or the constitutional validity of the disqualifying law itself (made under clause (e)).

Summary

Article 102(1) of the Indian Constitution lists the primary grounds for disqualifying a person from being a member of Parliament. These grounds include holding an office of profit under the government (with exceptions defined by Parliament), being of unsound mind as declared by a competent court, being an undischarged insolvent, lacking Indian citizenship, voluntarily acquiring foreign citizenship, or acknowledging allegiance to a foreign state. Additionally, Parliament is empowered to enact laws specifying further grounds for disqualification, the most prominent being the Representation of the People Act, 1951. These provisions collectively aim to maintain the integrity, independence, and loyalty of the nation’s legislators.
« Article 102 Article 102(2) »