Article 102 of the Indian Constitution is a crucial provision that safeguards the integrity and effectiveness of Parliament by specifying the conditions under which an individual is disqualified from being a member of either the House of the People (Lok Sabha) or the Council of States (Rajya Sabha). These disqualifications aim to prevent conflicts of interest, ensure mental and financial soundness, uphold allegiance to the state, and maintain the dignity of the parliamentary institution.
Understanding the grounds for disqualification is essential for comprehending the fundamental principles governing the composition and functioning of the Indian Parliament. It ensures that elected representatives meet certain basic standards and remain accountable to the constitutional framework.
Original Text
102. Disqualifications for membership.
(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 Union or a State Government, 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 acknowledgement of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament.
(2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.
Explanation.—For the purposes of this clause— (a) a person shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as a member of that House of Parliament; (b) a person who has been elected as an independent candidate shall be deemed to be a member of the political party, if any, he joins after such election as a member of that House of Parliament.
Note: The Explanation for Clause (2) was added by the Constitution (Fifty-second Amendment) Act, 1985, which inserted the Tenth Schedule (Anti-Defection Law).
Detailed Explanation
Article 102 outlines the conditions that disqualify a person from becoming or continuing as a Member of Parliament (MP). These grounds are exhaustive within the article itself but also include disqualifications prescribed by laws made by Parliament.
Clause (1): General Disqualifications
This clause lists five specific grounds for disqualification. A person is disqualified if they hold an office of profit, indicating this applies both at the time of contesting election and while being an MP.
- Clause 102(1)(a) - Office of Profit: This is a significant ground. An ‘office of profit’ is broadly interpreted by courts as an office capable of yielding a profit or pecuniary gain. The disqualification is based on the principle that there should be no conflict between the duties of an MP and the interests arising from holding an executive office under the government, as it could subject the MP to government influence. However, Parliament has the power to exempt certain offices from being considered ‘offices of profit’ for the purpose of this disqualification by law (e.g., The Parliament (Prevention of Disqualification) Act, 1959).
- Clause 102(1)(b) - Unsound Mind: A person is disqualified if they are of unsound mind and a competent court has declared this status. This ensures that MPs are mentally capable of performing their duties.
- Clause 102(1)(c) - Undischarged Insolvent: An undischarged insolvent is a person who has been declared insolvent but has not been relieved of their debts by the court. This disqualification aims to ensure financial integrity and prevent individuals in dire financial straits from potentially being susceptible to undue influence.
- Clause 102(1)(d) - Citizenship: This disqualifies individuals who are not citizens of India, who have voluntarily acquired foreign citizenship, or who acknowledge allegiance or adherence to a foreign state. This upholds the requirement for MPs to owe sole allegiance to the Indian state.
- Clause 102(1)(e) - Disqualification by Law: This is a residual clause empowering Parliament to make laws specifying additional grounds for disqualification. The most prominent law made under this power is the Representation of the People Act, 1951 (RP Act, 1951). This Act lists various grounds, including conviction for certain criminal offences, corrupt practices during elections, failure to lodge election accounts, dismissal from government service for corruption or disloyalty, holding directorship or controlling interest in corporations where the government has a 25% or more share, and propagating enmity between different groups or abetting dowry.
Clause (2): Disqualification under Tenth Schedule (Anti-Defection Law)
This clause, added in 1985, deals specifically with disqualification on grounds of defection. It targets MPs who switch political parties. The Tenth Schedule details the specific circumstances under which an MP can be disqualified, primarily:
- If a member voluntarily gives up the membership of the political party on whose ticket he was elected.
- If a member votes or abstains from voting in the House contrary to any direction issued by his political party, without obtaining prior permission, and such voting or abstention has not been condoned by the party within fifteen days.
- If a nominated member joins a political party after the expiry of six months from the date on which he takes his seat.
- If an independent member joins a political party after his election.
The decision on disqualification under the Tenth Schedule rests with the Speaker of the Lok Sabha or the Chairman of the Rajya Sabha, as the case may be.
The Explanation clarifies the scope of the Tenth Schedule regarding party affiliation for elected and nominated members.
Detailed Notes
- Article 102 lists grounds for disqualification from both being chosen as (contesting election) and being (continuing as) a member of Parliament.
- Disqualifications under Article 102(1) are constitutional grounds, while Article 102(1)(e) allows Parliament to add statutory grounds via law.
- Office of Profit (102(1)(a)):
- Concept developed through judicial interpretation.
- Aim: Prevent conflict of interest and executive influence.
- Parliament can exempt offices via law (e.g., Parliament (Prevention of Disqualification) Act, 1959).
- Unsound Mind (102(1)(b)): Requires a declaration by a competent court.
- Undischarged Insolvent (102(1)(c)): Refers to someone declared bankrupt but not yet discharged from liabilities.
- Citizenship (102(1)(d)): Requires Indian citizenship; voluntary acquisition of foreign citizenship or allegiance to a foreign state leads to disqualification.
- Disqualification by Law (102(1)(e)):
- Key law: Representation of the People Act, 1951 (RP Act, 1951).
- RP Act, 1951 lists grounds like conviction for certain offences (Sections 8, 8A, etc.), corrupt practices, election expenses defaults, government contracts, etc.
- Conviction leading to imprisonment of two years or more results in disqualification for six years from release (Section 8(3), RP Act).
- Disqualification under Tenth Schedule (102(2)):
- Added by 52nd Amendment Act, 1985 (Anti-Defection Law).
- Deals with defection from the political party.
- Applies to members voluntarily giving up party membership, violating party whip, or specific actions by independent/nominated members.
- Decision-making authority: Speaker (Lok Sabha) / Chairman (Rajya Sabha).
- The decision of the Speaker/Chairman under the Tenth Schedule is subject to judicial review (Kihoto Hollohan v. Zachillhu, 1992).
Additional Comments
- The authority to decide on questions of disqualification under Article 102(1) is the President of India. As per Article 103, if any question arises whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in Article 102(1), the question shall be referred for the decision of the President, and his decision shall be final.
- Before giving any decision on such a question, the President is required to obtain the opinion of the Election Commission and act according to such opinion.
- The grounds under Article 102(1) and those under the Tenth Schedule (Article 102(2)) are distinct and decided by different authorities (President with ECI opinion vs. Speaker/Chairman).
- The ‘office of profit’ concept has been a subject of much debate and litigation, leading to several amendments to the Parliament (Prevention of Disqualification) Act, 1959, to list exempted offices.
- The disqualification under the RP Act, 1951 (under Article 102(1)(e)) takes effect from the date of conviction, as per the Supreme Court judgment in Lily Thomas v. Union of India (2013), striking down Section 8(4) of the RP Act, 1951, which previously allowed sitting MPs/MLAs to continue membership by filing an appeal within three months.
- The Tenth Schedule includes exceptions for mergers of parties and allows the Speaker/Chairman to decide on defection cases.
Summary
Article 102 of the Indian Constitution specifies the conditions under which a person is disqualified from being a member of Parliament. These grounds include holding an unexempted office of profit under the government, being of unsound mind as declared by a court, being an undischarged insolvent, lacking Indian citizenship or having allegiance to a foreign state, and any other disqualification laid down by a law made by Parliament, such as the Representation of the People Act, 1951. Additionally, a person is disqualified under Article 102(2) if they are disqualified under the Tenth Schedule, commonly known as the Anti-Defection Law, for reasons related to switching political parties or defying party directives. Questions regarding disqualifications under Article 102(1) are decided by the President based on the Election Commission’s opinion, while those under the Tenth Schedule are decided by the Speaker/Chairman of the respective House.