Disqualification of members of Parliament

Also called: Article 102, Article 103 · Topic: Parliament: Composition, Powers and Law-making · NCERT: Beyond NCERT

Meaning

Disqualification of members of Parliament means that, because of a ground the Constitution or a law lays down, a person cannot be elected as an MP, or loses a seat they already hold. The grounds are in Art. 102, and Art. 103 says who decides. Disqualification keeps people who are unfit, convicted, defecting or dependent on the government out of Parliament, so Parliament stays free from the executive and is trusted by the public.

Explanation

Grounds under the Constitution (Art. 102)

Art. 102(1) disqualifies a person who:

• holds an office of profit (a government post that brings pay or other money benefits) under the Union or a state government.
• Parliament can exempt some offices by law.

• A minister is not treated as holding an office of profit (Explanation to Art. 102).

• is of unsound mind, and a competent court has declared so.

• is an undischarged insolvent. A court has declared them unable to pay their debts, and they have not yet been released from that status.
• is not a citizen of India, has voluntarily taken another country's citizenship, or accepts loyalty to a foreign state.
• is disqualified by a law made by Parliament. The main law is the Representation of the People Act, 1951 (RPA).

Art. 102(2) disqualifies a member for defection under the Tenth Schedule (the anti-defection law, added by the 52nd Amendment, 1985).

• Defection means giving up party membership or going against the party whip (the party's order on how to vote).

Grounds under the RPA 1951 (ss. 8–11A)

• s. 8: Conviction. A sentence of 2 years or more disqualifies from the date of conviction. It lasts for the prison term plus 6 more years after release.
• s. 8A: Corrupt practice at an election, such as bribery or undue influence.
• s. 9: Dismissal from government service for corruption or disloyalty.
• s. 9A: Holding a government contract to supply goods or carry out works.
• s. 10: Being a managing agent, manager or secretary of a company in which the government has a share.
• s. 10A: Not filing election expense accounts on time and in the proper form.
• s. 11: The Election Commission may remove or shorten some disqualifications.
• s. 11A: Disqualification that follows a conviction for corrupt practices.

Who decides: the procedure

Art. 102(1) cases (Art. 103). The steps:

1. A question comes up about whether a sitting member has become disqualified.
2. The question goes to the President.
3. The President gets the Election Commission's opinion and must act on it.
4. The President's decision is final.

Defection cases (Art. 102(2)).

• The presiding officer (Speaker of the Lok Sabha or Chairman of the Rajya Sabha) decides these cases, not the President.
• The presiding officer's decision is open to judicial review (courts can check whether it is lawful).

Conviction under RPA s. 8.

• Since Lily Thomas (2013), disqualification takes effect automatically, from the date of conviction.

Results and limits

• The seat is lost. A member who becomes disqualified under Art. 102 loses the seat (Art. 101(3)(a)).
• There is a penalty for sitting while disqualified. A person who sits or votes while not qualified or while disqualified pays ₹500 for each day (Art. 104). The amount is recovered as a debt owed to the Union.
• State legislators face the same bar. Art. 191(1) sets the same office-of-profit rule for MLAs, and a minister is again not treated as holding an office of profit [1].

In the Constitution and practice

• Constitutional base. The grounds are in Art. 102. Art. 103 says who decides. Art. 101(3)(a) covers loss of the seat. Art. 104 sets the penalty. Defection is covered by the Tenth Schedule, added by the 52nd Amendment (1985).
• Main law. The Representation of the People Act, 1951, ss. 8–11A.
• Office of profit. The Constitution does not define the term, so the courts have built the tests.
• Guru Gobinda Basu v. Sankari Prasad Ghosal (1963). The court asks four questions: who appoints, who removes, who pays (from public money?), and who controls the work. No single test decides the case. The court looks at all four together [1].
• Jaya Bachchan v. Union of India (2006). She was a Rajya Sabha MP and also chaired the Uttar Pradesh Film Development Council. The court held that what matters is whether the office can give money gain, even if no pay is drawn. Her disqualification was upheld.

• Sonia Gandhi (2006). Her post as chairperson of the National Advisory Council was challenged. She resigned from the Lok Sabha and was re-elected from Rae Bareli.

• Parliament (Prevention of Disqualification) Act, 1959. This Act lists the offices whose holders are not disqualified [1].

• 2006 amendment. It exempted more offices, including the National Advisory Council, with retrospective effect (applying to past dates too).
• President Kalam returned the Bill for reconsideration (Art. 111). Parliament passed it again without change, so he had to sign it.
• Consumer Education and Research Society v. Union of India (2009) upheld the amendment. Parliament can exempt offices with retrospective effect.

• Draft Parliament (Prevention of Disqualification) Bill, 2024. It was put out for public comments in November 2024 and would repeal and re-enact the 1959 Act. It follows the recommendations of the Joint Committee on Offices of Profit (JCOP) [1].

• Delhi, 2018. The Election Commission recommended disqualifying 20 AAP MLAs who had been appointed parliamentary secretaries, and the President accepted it [1].

• The Delhi High Court set the disqualification aside (March 2018) because the MLAs were not given an oral hearing.

• Lily Thomas v. Union of India (10 July 2013).

• Old rule. RPA s. 8(4) let a convicted sitting MP or MLA keep the seat while an appeal was pending.
• Judgment. The Supreme Court struck down s. 8(4) as ultra vires (beyond Parliament's constitutional power) [2].
• Effect. Disqualification now applies at once. It is lifted only if a higher court stays the conviction.

• Attempt to undo it. The RP (Second Amendment and Validation) Bill, 2013 tried to reverse the judgment. It was withdrawn [2].

• Rahul Gandhi (2023). A Surat court gave him a 2-year sentence for criminal defamation (March 2023), and the Lok Sabha Secretariat declared him disqualified. The Supreme Court stayed the conviction, and his membership was restored (August 2023).

Don't confuse with

• Disqualification for defection (Tenth Schedule): this falls under Art. 102(2), and the Speaker or Chairman decides it. Art. 102(1) grounds go to the President, who must act on the Election Commission's opinion (Art. 103).
• Qualifications for membership (Art. 84): these are the minimum conditions a person must meet: citizenship, the oath in the Third Schedule, and age 25 for the Lok Sabha or 30 for the Rajya Sabha. Disqualifications are the grounds that bar someone even if they meet those conditions.
• Vacation of seat (Art. 101): a seat can also fall vacant without any disqualification. This happens through double membership, a resignation that is voluntary and genuine (33rd Amendment, 1974), or 60 days' absence without the House's permission.
• Minister vs office of profit: a minister does draw pay from the government, but the Explanation to Art. 102 says a minister is not holding an office of profit.

Prelims Hooks

• Art. 103: the President decides Art. 102(1) disqualifications, is bound by the Election Commission's opinion, and the decision is final. Trap: the President does not decide defection cases. The presiding officer does.
• Art. 104: a fine of ₹500 per day for sitting or voting while disqualified or before taking the oath.
• Guru Gobinda Basu (1963): tests for office of profit (appointment, removal, pay, control). Jaya Bachchan (2006): the capacity for money gain is enough, even if no pay is drawn.
• Lily Thomas (10 July 2013) struck down RPA s. 8(4). The 2013 Bill to undo it was withdrawn [2].
• RPA s. 8: a sentence of 2 years or more disqualifies for the prison term plus 6 years after release. s. 10A: not filing election expense accounts is also a ground.
• Consumer Education and Research Society (2009) upheld the retrospective 2006 amendment to the 1959 Act. This was the Bill President Kalam had returned.

Mains Points

• Office of profit: a weak check on the executive.
• The bar is meant to keep legislators from being bought with government posts, which keeps the legislature independent of the executive [1].
• But the term is undefined, and Parliament can exempt posts even with retrospective effect (2006, upheld in 2009). In the states, parliamentary-secretary posts are used to get around the cap on the council of ministers in Art. 164(1A) [1].

• Reform options are a clear legal definition, or a negative list of barred posts in a new Act, as the draft Bill of 2024 attempts [1].

• Criminal cases among legislators.

• Lily Thomas ended the protection given to convicted sitting members [2].
• The Law Commission (Justice A.P. Shah, February 2014) proposed disqualification once charges are framed for offences with a maximum sentence of 5 years or more, with safeguards against false cases [3].

• The trade-off is between cleaning up politics and the presumption of innocence (treating a person as innocent until proven guilty). The Rahul Gandhi case (2023) shows how much depends on whether a higher court stays the conviction.

• Who should decide?

• Under Art. 103 the decision rests on the opinion of the Election Commission, a neutral body. Defection cases are decided by a Speaker who comes from a party.
• This difference is an argument for giving Tenth Schedule cases to the President or the Election Commission as well.
• The Delhi High Court ruling (2018) shows that a fair hearing is needed even under Art. 103.

Related concepts

• Qualifications for membership of Parliament
• Office of profit
• Parliament (Prevention of Disqualification) Act 1959
• Double membership
• Vacation of seat for absence
• Members of Parliament Local Area Development Scheme

Read more

• Membership: qualifications, disqualification and offices of profit