Disqualification of MPs

Context:  Recently, an eminent politician has been sentenced to two years jail which shall lead to his disqualification as a Member of Parliament (MP).

Constitutional Provisions for Disqualification

• Articles 102 & 191: Basic disqualification criteria for an MP are laid down in Article 102 of the Constitution and for an MLA in Article 191.
  • Article 102 authorizes Parliament to make law determining conditions of disqualifications.
  • Grounds for disqualification under Constitution:
    • Holding an office of profit under the Government of India or State Government
    • Being of unsound mind
    • Being an undischarged insolvent
    • Not being an Indian citizen or for acquiring citizenship of another country.
• Tenth Schedule: Commonly known as the ‘anti-defection law’, it was meant to arrest the practice of legislators from changing political affiliations during their term in office.
  • A member incurs disqualification under the defection law:
    • If he voluntarily gives up the membership of the political party on whose ticket he is elected to the House;
    • If he votes or abstains from voting in the House contrary to any direction given by his political party;
    • If any independently elected member joins any political party; and
    • If any nominated member joins any political party after the expiry of six months.
  • Authority: The question of disqualification under the Tenth Schedule is decided by the Chairman in the case of Rajya Sabha and Speaker in the case of Lok Sabha.
    • The present law does not specify a time-period for the Presiding Officer to decide on a disqualification plea. The decision of the Chairman/Speaker in this regard is subject to judicial review.
  • Exceptions in Anti-Defection Law: The law enables a party to merge with another party if at least two-thirds of the legislators of the party are in favour of such a merger.

The Representation of the People Act (RPA), 1951

• Section 8(1): This includes specific offences such as promoting enmity between two groups, bribery, and undue influence or personation at an election.
  • A person will be disqualified if convicted and sentenced to imprisonment for not less than two years.
  • The person is disqualified for the period of imprisonment and a further six years.
• Section 9:  It deals with disqualification for dismissal for corruption or disloyalty, and for entering into government contracts while being a lawmaker.
• Section 10:  It deals with disqualification for failure to lodge an account of election expenses.
• Section 11: It deals with disqualification for corrupt practices.

Legal Protection for Legislators against Disqualification

• Under Section 8(4) of the RPA, legislators could avoid immediate disqualification until 2013.
  • The provision said that with respect to a Member of Parliament or a State legislator the disqualification will not take effect for three months.
  • If within that period, the convicted legislator files an appeal or revision application, it will not take effect until the disposal of the appeal or application.
• In Lily Thomas vs. Union of India, the Supreme Court struck down clause (4) as unconstitutional, thus removing the protection enjoyed by lawmakers.

Can the Disqualification be Removed?

• Supreme Court: The Supreme Court has the power to stay not only the sentence, but also the conviction of a person.
  • In some rare cases, conviction has been stayed to enable the appellant to contest an election.
  •  However, the SC has made it clear that such a stay should be very rare and for special reasons.
• Section 11 of RPA: Under Section 11 of the Act, the Election Commission may record reasons and either remove, or reduce the period of a person’s disqualification.
  •  The EC exercised this power for Sikkim Chief Minister P.S. Tamang, who served a one-year sentence for corruption, and reduced his disqualification so as to contest a by-election and remain in office.

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