Article 192 of the Indian Constitution deals with the mechanism for resolving disputes regarding the disqualification of members of the State Legislature. Specifically, it lays down the procedure for determining if a member has incurred any of the disqualifications specified in Article 191(1).
This article ensures that questions concerning the eligibility of legislators, based on criteria other than defection, are handled through a defined constitutional process involving the head of the state executive (Governor) and an independent constitutional body (Election Commission of India). It provides a clear path for addressing such concerns and ensures finality in the decision-making process, albeit with specific checks and balances.
Original Text
(1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of article 191, the question shall be referred for the decision of the Governor and his decision shall be final.
(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission, and shall act according to such opinion.
Detailed Explanation
Article 192 establishes the procedure for deciding whether a member of the State Legislative Assembly or State Legislative Council has become subject to disqualification under Article 191(1). This clause of Article 191 lists various grounds for disqualification, such as holding an office of profit under the Government, being of unsound mind, being an undischarged insolvent, or not being a citizen of India.
When a question regarding such a disqualification arises concerning a sitting member, Article 192 mandates that this question must be referred to the Governor of the State for decision. The Article explicitly states that the Governor’s decision on this matter is final.
However, Article 192(2) imposes a crucial condition on the Governor’s power. Before making any decision, the Governor is required to obtain the opinion of the Election Commission of India. Furthermore, the Article emphatically states that the Governor shall act according to the opinion rendered by the Election Commission. This means the Governor’s decision is not discretionary; they are constitutionally bound by the advice of the Election Commission in such matters. The Election Commission acts as the ultimate authority whose opinion guides the Governor’s final decision, ensuring an independent and impartial assessment of the disqualification question.
It is important to note that this article pertains only to disqualifications under Article 191(1). Disqualifications arising under the Tenth Schedule (Anti-Defection Law) are decided by the Chairman or Speaker of the respective House, not the Governor, as per Article 191(2) read with the Tenth Schedule.
While the Governor’s decision is stated to be final, the Supreme Court has held that decisions under Article 192 (based on ECI’s opinion) are subject to judicial review by the High Courts and the Supreme Court on grounds such as illegality, perversity, irrationality, or constitutional violation, but not on the correctness of the facts or merits unless the decision is arbitrary or mala fide.
Detailed Notes
- Scope: Deals with questions of disqualification of a member of a State Legislature under Article 191(1).
- Grounds Covered: Refers to disqualifications specified in Article 191(1), such as holding an office of profit, unsoundness of mind, insolvency, lack of citizenship, or disqualification under any law made by Parliament.
- Initiation of Question: A question regarding such a disqualification can be raised by any person and brought to the notice of the Governor.
- Authority for Decision: The question is referred to the Governor of the State for decision.
- Governor’s Decision: The Governor’s decision on the question is declared to be final by the Constitution.
- Role of Election Commission: Before deciding, the Governor must obtain the opinion of the Election Commission of India.
- Binding Nature of ECI Opinion: The Governor is constitutionally bound to act according to the opinion given by the Election Commission. The Governor has no discretion in this regard.
- ECI’s Opinion: The Election Commission examines the facts and legal position regarding the alleged disqualification and provides its opinion to the Governor.
- Distinction from Tenth Schedule: Article 192 does not apply to disqualifications under the Tenth Schedule (Anti-Defection Law). Those are decided by the Presiding Officer of the House (Speaker/Chairman).
- Judicial Review: Although the Governor’s decision is final constitutionally, it is subject to judicial review by the High Courts and Supreme Court, particularly regarding the process, adherence to ECI opinion, and grounds like mala fide intention or violation of natural justice, as established by Supreme Court judgments (e.g., Election Commission of India v. Dr. Subramanian Swamy).
- Purpose: Ensures that disqualifications under Article 191(1) are decided through a process involving both the head of the state executive and an independent constitutional body.
Additional Comments
- The role of the Election Commission under Article 192 is advisory to the Governor, but the Constitution makes this advice binding, effectively vesting the decision-making power regarding the facts and law of disqualification under Article 191(1) in the ECI.
- This mechanism highlights the Constitution makers’ intent to keep such decisions, potentially politically sensitive, insulated from executive discretion by involving an independent body like the ECI.
- The finality clause refers to the conclusion within the constitutional framework but does not preclude the overarching power of judicial review by the higher courts, which is a basic feature of the Constitution.
- The question under Article 192 can be raised by any person, not necessarily the House or another member.
Summary
Article 192 of the Indian Constitution mandates that any question regarding a State Legislature member’s disqualification under Article 191(1) must be referred to the Governor, whose decision is final. However, the Governor is constitutionally required to obtain the opinion of the Election Commission before making the decision and must act strictly in accordance with that opinion. This procedure applies only to disqualifications specified in Article 191(1) and not to those under the Tenth Schedule. While the Governor’s decision is final within the constitutional process, it remains subject to judicial review by the courts.