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Article 191 of the Indian Constitution: Disqualifications for membership of the State Legislature

Part: VI
Shorthand Notes: Disqualifications for State MLA/MLC: Office of Profit, Unsound Mind, Insolvent, Foreign Citizen, Law by Parliament, Defection (Tenth Schedule)

Article 191 of the Indian Constitution is a crucial provision that lays down the specific grounds on which a person is deemed disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State. Its purpose is to ensure that members of the state legislature meet certain minimum criteria and are not subject to potential conflicts of interest or legal incapacities that could hinder their ability to discharge their duties effectively and impartially.

This article mirrors Article 102 which deals with similar disqualifications for members of Parliament. Together, these articles form the bedrock for maintaining the integrity and functional capacity of the elected representatives in the country’s legislative bodies at both the Union and State levels.

Original Text

(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State— (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State 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.

(2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.

Detailed Explanation

Article 191 specifies various conditions that would disqualify a person from becoming or remaining a member of a State’s Legislative Assembly or Legislative Council. These conditions are designed to uphold the principles of impartiality, mental capacity, financial responsibility, loyalty to the nation, and compliance with laws enacted by Parliament.

Clause (1) lists the fundamental grounds:

  • Clause (1)(a) - Office of Profit: This is a significant ground for disqualification. It aims to prevent conflicts of interest where a legislator might use their position to benefit from an executive appointment. Holding any “office of profit” under the Central or State Government can lead to disqualification. However, the clause provides an exception: the State Legislature itself can, by law, declare certain offices not to disqualify their holders. The term “office of profit” is not precisely defined in the Constitution but has been interpreted by courts based on factors like whether the government makes the appointment, has the power to remove the holder, pays the remuneration, and exercises control over the functions.
  • Clause (1)(b) - Unsound Mind: A person declared by a competent court as being of unsound mind is disqualified. This ensures that legislators have the necessary mental capacity to understand and participate in legislative proceedings.
  • Clause (1)(c) - Undischarged Insolvent: An undischarged insolvent is someone declared legally bankrupt who has not been relieved of their debt obligations by a court. This disqualification aims to ensure financial responsibility and integrity among legislators.
  • Clause (1)(d) - Citizenship: Loyalty to the nation is paramount. A person is disqualified if they are not a citizen of India, voluntarily acquire the citizenship of a foreign country, or acknowledge allegiance or adherence to a foreign state.
  • Clause (1)(e) - Disqualification by Parliamentary Law: This is a residual clause empowering Parliament to enact laws prescribing additional grounds for disqualification. The most significant law enacted under this provision is the Representation of the People Act, 1951 (RPA, 1951), which lays down various disqualifications, including those based on conviction for certain offences, corrupt practices, failure to lodge election accounts, government contracts, directorships in companies with government contracts, dismissal from government service for disloyalty or corruption, and promoting enmity between different groups.

Clause (2) was added by the 52nd Amendment Act, 1985, and deals with disqualification on the ground of defection:

  • Clause (2) - Disqualification under Tenth Schedule: A person is disqualified if they fall under the purview of the Tenth Schedule of the Constitution, commonly known as the Anti-Defection Law. This schedule provides grounds for disqualification based on voluntarily giving up membership of their political party, voting against the party whip, or being an independent member joining a political party after election. It also specifies grounds for nominated members. The decision on defection-based disqualification is ordinarily made by the Chairman/Speaker of the House.

Detailed Notes

  • Article 191 deals with disqualifications for membership of the State Legislature (Legislative Assembly and Legislative Council).
  • It applies to both being chosen as (before election) and being (after election) a member.
  • Clause (1)(a): Disqualification for holding an office of profit under the Government of India or a State Government.
  • Clause (1)(a) Exception: State Legislature can declare certain offices not to be offices of profit by law.
  • Clause (1)(b): Disqualification for being of unsound mind as declared by a competent court.
  • Clause (1)(c): Disqualification for being an undischarged insolvent.
  • Clause (1)(d): Disqualification for lack of Indian citizenship or allegiance to a foreign state.
    • Not a citizen of India.
    • Voluntarily acquired foreign citizenship.
    • Under acknowledgment of allegiance/adherence to a foreign state.
  • Clause (1)(e): Disqualification if prescribed by or under any law made by Parliament.
    • The primary law is the Representation of the People Act, 1951 (RPA, 1951).
    • RPA, 1951 lists various grounds like conviction for offences, corrupt practices, government contracts, etc.
  • Clause (2): Disqualification under the Tenth Schedule (Anti-Defection Law).
    • Added by the 52nd Amendment Act, 1985.
    • Grounds include voluntarily giving up party membership, violating party whip, etc.
    • Decision on disqualification under the Tenth Schedule is generally made by the Presiding Officer (Speaker/Chairman) of the House.
  • The final decision on other disqualifications (under Article 191(1)) is made by the Governor in accordance with the opinion of the Election Commission of India (as per Article 192).

Additional Comments

  • Article 191 is the state-level equivalent of Article 102, which lists disqualifications for members of Parliament.
  • The concept of “office of profit” has been a subject of considerable judicial interpretation. The courts look at factors like appointment, removal power, salary, and control by the government. It’s not merely about receiving payment or profit.
  • Parliament’s power under Article 191(1)(e) is extensive and allows for updating disqualification criteria through ordinary legislation (like the RPA, 1951) without constitutional amendments.
  • The Representation of the People Act, 1951 provides detailed grounds for disqualification under Article 191(1)(e), covering aspects like electoral offences, criminal convictions, and financial impropriety related to elections.
  • Disqualification under the Tenth Schedule (Article 191(2)) operates independently of the grounds listed in Article 191(1). The decision-making authority is also different (Presiding Officer vs. Governor on advice of ECI).
  • Article 192 specifies the procedure for deciding questions relating to disqualifications under Article 191(1), requiring the Governor to obtain and act upon the opinion of the Election Commission.

Summary

Article 191 of the Indian Constitution specifies the conditions under which a person is disqualified from being a member of a State’s Legislative Assembly or Council. Key grounds include holding an office of profit under the government (unless exempted by state law), being declared of unsound mind by a court, being an undischarged insolvent, not being an Indian citizen or owing allegiance to a foreign state, or being disqualified by a law made by Parliament (such as the Representation of the People Act, 1951). Additionally, the article includes disqualification under the Tenth Schedule, commonly known as the Anti-Defection Law. The Governor, acting on the Election Commission’s opinion, decides on disqualifications under Article 191(1), while the Presiding Officer usually decides on defection cases under the Tenth Schedule.
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