Article 102 of the Indian Constitution lays down the grounds for disqualification for being chosen as, and for being, a member of either House of Parliament. While Article 102(1) lists several grounds such as holding an office of profit, being of unsound mind, being an undischarged insolvent, not being a citizen of India, or being disqualified by any law made by Parliament, Article 102(2) specifically incorporates disqualification under the Tenth Schedule.
This clause was added to the Constitution along with the Tenth Schedule by the Constitution (Fifty-second Amendment) Act, 1985, also known as the Anti-Defection Law. Its inclusion underscores the constitutional recognition of the need to prevent political defection and maintain party discipline, linking this specific ground of disqualification directly to the main article on disqualifications for parliamentary membership.
Original Text
The original text of Article 102(2) of the Indian Constitution is as follows:
(2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.
Detailed Explanation
Article 102(2) serves as a constitutional bridge between Article 102(1), which lists general disqualifications for parliamentary membership, and the Tenth Schedule, which contains specific provisions relating to disqualification on the ground of defection. Essentially, it declares that any person who incurs a disqualification under the provisions of the Tenth Schedule is automatically disqualified from being a Member of Parliament (MP).
The Tenth Schedule, introduced by the 52nd Amendment Act, 1985, and later amended by the 91st Amendment Act, 2003, was enacted to curb political defections by legislators. The premise behind the Anti-Defection Law is that a legislator elected on a party ticket should remain loyal to that party’s policies and whip, or face disqualification. Article 102(2) makes this principle a constitutional requirement for continued membership in Parliament. The specific grounds for disqualification under the Tenth Schedule, as referenced by Article 102(2), are detailed within the schedule itself and include actions like voluntarily giving up membership of the original political party, voting or abstaining from voting in a House contrary to any direction issued by the political party, independent members joining a political party after the election, and nominated members joining a political party after the expiry of six months from the date on which they take their seat in the House.
Detailed Notes
- Connects Article 102 to Tenth Schedule: Article 102(2) explicitly links the general constitutional provisions on disqualification of MPs (Article 102) to the specific grounds listed in the Tenth Schedule (Anti-Defection Law).
- Incorporation of Anti-Defection Law: This clause constitutionally formalizes disqualification based on defection as defined in the Tenth Schedule.
- Introduced by 52nd Amendment: Article 102(2) was added to the Constitution along with the Tenth Schedule by the Constitution (Fifty-second Amendment) Act, 1985.
- Purpose is to Curb Defection: The primary objective is to prevent legislators from changing political affiliations after election, thereby ensuring political stability and party discipline.
- Disqualification Grounds (as per Tenth Schedule referenced by 102(2)):
- Voluntarily giving up membership of the political party by which the member was set up as a candidate.
- Voting or abstaining from voting in the House contrary to any direction (whip) issued by the political party, without obtaining prior permission, and such act is not condoned by the party within fifteen days.
- An independent member joining any political party after election.
- A nominated member joining any political party after the expiry of six months from the date on which they take their seat in the House.
- Deciding Authority: The question of disqualification under the Tenth Schedule (and thus under Article 102(2)) is decided by the presiding officer of the House (Speaker in Lok Sabha, Chairman in Rajya Sabha).
- Judicial Review: The decision of the presiding officer is subject to judicial review by the High Courts and the Supreme Court, as established in the landmark Kihoto Hollohan vs. Zachillhu (1992) case, overturning the original provision in the Tenth Schedule which barred judicial review.
- Exceptions in Tenth Schedule: The Tenth Schedule originally included exceptions for split (one-third members) and merger (two-thirds members). The 91st Amendment Act, 2003, removed the ‘split’ exception, retaining only the ‘merger’ exception (when not less than two-thirds of the members of a legislative party agree to merge with another political party).
- Effect of Disqualification: A person disqualified under Article 102(2) ceases to be a member of Parliament.
Additional Comments
- Article 102(2) makes disqualification under the Tenth Schedule a distinct ground from those listed in Article 102(1).
- The interpretation and application of the Tenth Schedule, and consequently Article 102(2), have been subject to significant political and legal debates, particularly regarding the powers of the presiding officer and the scope of judicial review.
- The Anti-Defection Law, linked via Article 102(2), has had a considerable impact on party politics and the functioning of parliamentary democracy in India.
- The law aims to balance the need for party discipline with the freedom of speech and conscience of individual legislators, a balance that is often debated.
Summary
Article 102(2) of the Indian Constitution stipulates that a person is disqualified from being a member of either House of Parliament if they are disqualified under the Tenth Schedule. This clause was introduced by the 52nd Amendment Act, 1985, to incorporate the Anti-Defection Law into the constitutional framework of parliamentary disqualifications. The Tenth Schedule outlines specific grounds for disqualification based on defection, such as voluntarily giving up party membership or defying the party whip, with certain exceptions like the merger of parties under specific conditions. The presiding officer of the House decides on such disqualifications, though this decision is subject to judicial review. This provision is crucial for maintaining party discipline and political stability by discouraging legislators from changing their political allegiance after being elected.