Membership: qualifications, disqualification and offices of profit

Detail

1. Qualifications for membership (Art. 84)

Qualifications for membership of Parliament are the minimum conditions a person must meet to be chosen as an MP. Art. 84 lists them.

Condition	Lok Sabha	Rajya Sabha
Citizenship	Citizen of India	Citizen of India
Oath or affirmation	Yes (Third Schedule)	Yes (Third Schedule)
Minimum age	25 years	30 years
Other conditions	As Parliament sets by law	As Parliament sets by law

• The oath. The candidate swears or affirms in the form given in the Third Schedule. The oath is taken before a person the President authorises. It is a promise of true faith in the Constitution and loyalty to the sovereignty and integrity of India.
• Conditions set by law (Representation of the People Act, 1951 — RPA).
• The candidate must be a registered elector (a voter whose name is on the electoral roll) in a parliamentary constituency.

• To contest a seat reserved for Scheduled Castes or Scheduled Tribes, the candidate must belong to an SC or ST.

• Oath as a member (Art. 99). After the election, every member takes the oath again before taking a seat. The oath is taken before the President or a person the President appoints.

• Penalty (Art. 104). A person who sits or votes before taking the oath, or while not qualified or while disqualified, pays ₹500 for each day. The amount is recovered as a debt owed to the Union.

2. Disqualification of members (Arts. 102–103)

Disqualification means a person cannot become an MP, or loses a seat they already hold.

Grounds under Art. 102(1). A person is disqualified if they:

• hold an office of profit 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).
• are of unsound mind, and a competent court has declared so.
• are an undischarged insolvent. This means a court has declared them unable to pay their debts and they have not yet been released from that status.
• are not a citizen, have voluntarily taken another country's citizenship, or accept loyalty to a foreign state.
• are disqualified by a law of Parliament. The main law is the RPA 1951.

Disqualification under RPA 1951 (ss. 8–11A)

Section	Ground
s. 8	Conviction for certain offences. A conviction with 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	Found guilty of a corrupt practice at an election, such as bribery or undue influence
s. 9	Dismissed from government service for corruption or disloyalty
s. 9A	Holding a government contract for supply of goods or execution of works
s. 10	Managing agent, manager or secretary of a company in which the government has a share
s. 10A	Failure to lodge election expense accounts in time and in the proper form
s. 11	The Election Commission may remove or reduce the period of some disqualifications
s. 11A	Disqualification arising from conviction for corrupt practices

Defection: Art. 102(2) and the Tenth Schedule

• A member is also disqualified for defection. Defection means giving up party membership or defying the party whip, under the Tenth Schedule (anti-defection law, added by the 52nd Amendment, 1985).
• These cases are decided by the presiding officer (Speaker or Chairman), not the President. See the political-parties note.

Who decides Art. 102(1) cases (Art. 103)?

• Someone raises a question about whether a sitting member has become disqualified.
• The question goes to the President.
• The President gets the Election Commission's opinion and must act on it.
• The President's decision is final.

Ground	Who decides	Bound by
Art. 102(1): office of profit, insolvency, citizenship and others	President (Art. 103)	Opinion of the Election Commission
Art. 102(2): defection	Speaker or Chairman (Tenth Schedule)	Open to judicial review
Conviction under RPA s. 8	Takes effect automatically after Lily Thomas	—

Lily Thomas v. Union of India (2013)

• Old rule. RPA s. 8(4) let a convicted sitting MP or MLA keep the seat while an appeal or revision was pending [6].
• The judgment (10 July 2013). The Supreme Court held that Parliament had no power to enact s. 8(4) and struck it down as ultra vires (beyond its constitutional power) [6].
• Result. Disqualification on conviction now takes effect 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 was introduced in the Rajya Sabha on 30 August 2013. It would have given a convicted legislator 90 days to appeal and get a stay. During that time the legislator could take part in proceedings but could not vote or draw salary. The Bill was withdrawn [6]. See the electoral-reforms note.
• Reform proposal. The Law Commission (Justice A.P. Shah, February 2014) proposed disqualification once charges are framed, not only after conviction [7]:
• It would apply only to offences with a maximum sentence of 5 years or more.
• Charges framed within one year before scrutiny of nominations would not count.
• The disqualification would end on acquittal or after 6 years, whichever comes first.
• A conviction for filing a false affidavit would itself disqualify.

Example: Rahul Gandhi (2023)

• A Surat court convicted him of criminal defamation and gave him a 2-year sentence (March 2023).
• The Lok Sabha Secretariat declared him disqualified (March 2023).
• The Supreme Court stayed the conviction, and his membership was restored (August 2023).
• This shows how Lily Thomas works: the seat is lost at once and comes back only through a stay.

Criminal cases among MPs. NCERT notes that the number of MPs with criminal cases is a public concern. This is the background to Lily Thomas and the Law Commission's proposals.

3. Office of profit

Office of profit means a post under the government that brings pay or other money benefits. It is barred to legislators so that the government cannot buy their loyalty with posts. This keeps the legislature independent of the executive and supports the separation of powers [5]. The Constitution does not define the term, so the courts have built the tests.

Guru Gobinda Basu v. Sankari Prasad Ghosal (1963). The Supreme Court set tests to decide whether a post is an office of profit [5]:

• Who appoints? Is the government the appointing authority?
• Who removes? Does the government have the power to remove the holder?
• Who pays? Does the government fix the pay, and is it paid from public revenue?
• Who controls? Does the government control the functions of the post?

No single test decides the case. The court looks at all of them together.

Jaya Bachchan v. Union of India (2006)

• Facts. She was a Rajya Sabha MP and also chaired the Uttar Pradesh Film Development Council.
• Held. What matters is whether the office can give money gain. It does not matter whether the holder actually draws any pay.
• Result. Her disqualification was upheld.

Sonia Gandhi (2006)

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

Parliament (Prevention of Disqualification) Act, 1959

• The Act lists offices under the Union and state governments whose holders are not disqualified from being MPs [5].
• Art. 102(1)(a) gives Parliament the power to make such a list.

The 2006 amendment

• What it did. It added more exempt offices, including the National Advisory Council, with retrospective effect (applying to past dates too).
• President Kalam returned it. He sent the Bill back for reconsideration (Art. 111).
• Parliament re-passed it without change, so the President had to sign it. See the union-executive note.
• Upheld. The Supreme Court upheld it in Consumer Education and Research Society v. Union of India (2009). Parliament can exempt offices with retrospective effect.

Proposed new law (2024)

• The Legislative Department plans to repeal and re-enact the 1959 Act [5].
• A draft Parliament (Prevention of Disqualification) Bill, 2024 was put out for public comments (November 2024) [5].
• The draft follows the recommendations of the Joint Committee on Offices of Profit (JCOP). The JCOP is a parliamentary committee that examines which posts should be exempt [5]. See the parliamentary-procedure note.

State legislators (Art. 191)

• Art. 191(1) sets the same office-of-profit bar for MLAs. A minister is again not treated as holding an office of profit [5].
• Delhi, 2018. The Election Commission recommended disqualifying 20 AAP MLAs who had been appointed parliamentary secretaries [5]. The President accepted the recommendation.
• The Delhi High Court set the disqualification aside (March 2018). The MLAs had not been given an oral hearing, so the case went back to the Commission.
• Other states. Puducherry exempted over 60 offices (2009 amendment), and Goa exempted over 50 by ordinance (2017) [5].
• Courts on parliamentary secretaries. Courts in several states have struck down these posts. Giving legislators the rank of junior minister gets around the limit on the size of the council of ministers in Art. 164(1A) (15% of the House) [5].

4. Vacating seats (Art. 101)

Double membership means holding seats in two legislatures at once. The Constitution does not allow it.

Situation	Rule	Time limit	If the member does not act
Elected to both Houses of Parliament (Art. 101(1))	Choose one House (RPA s. 68)	10 days	The Rajya Sabha seat falls vacant
MP who is also a state legislator (Art. 101(2))	Resign the state seat (Prohibition of Simultaneous Membership Rules, 1950)	14 days from publication in the Gazette	The Parliament seat falls vacant

Resignation (Art. 101(3)(b))

• A member resigns by writing to the Speaker or the Chairman.
• Since the 33rd Amendment (1974), the resignation takes effect only if the presiding officer is satisfied it is voluntary and genuine (not forced).

Vacation of seat for absence (Art. 101(4))

• A House may declare a seat vacant if the member stays away from all its sittings for 60 days without the House's permission.
• Days when the House is prorogued (session ended) or adjourned for more than four days in a row are not counted.

Seat lost by disqualification (Art. 101(3)(a)). A member who becomes disqualified under Art. 102 loses the seat.

Sting operations (NCERT thought bubble). NCERT asks whether MPs caught taking money in sting operations should lose their seats. This links ethics to the power of each House to expel its members.

5. The MP's constituency role: MPLADS

Members of Parliament Local Area Development Scheme (MPLADS) lets each MP recommend local development works, such as roads, school buildings and drinking water.

How it works

• The scheme began in December 1993.
• The entitlement has been ₹5 crore a year for each MP since 2011-12.
• Since 1 April 2023, the yearly ₹5 crore is approved in a single instalment at the start of each financial year, or at the start of the member's term [3].
• The MP only recommends works. District authorities approve and carry them out.
• Lok Sabha MPs recommend works in their constituency. Nominated MPs may recommend works anywhere in India.

COVID-19 suspension

• On 6 April 2020 the Cabinet decided not to run MPLADS in FY 2020-21 and FY 2021-22. The money went to the Ministry of Finance to manage the effects of COVID-19 [3]. (NCERT: suspended during 2020-21.)
• The Cabinet later approved restoring the scheme [4].

Revised guidelines (2023)

• Revised MPLADS Guidelines, 2023 were released on 22 February 2023 and came into force on 1 April 2023 [2].
• The e-SAKSHI web portal was launched with them. It tracks the scheme from start to finish, including fund flow, so it runs more efficiently and transparently [2][3].

Bhim Singh v. Union of India (2010)

• A Constitution Bench upheld the scheme.
• MPs only recommend works and the executive carries them out, so the court found no breach of the separation of powers.

2nd ARC (2007) criticism

• The 2nd Administrative Reforms Commission, in its 4th report "Ethics in Governance", recommended abolishing the scheme.
• Its reason: MPLADS puts legislators into executive spending. This weakens their role as watchdogs of the executive.

Prelims Hooks

• Art. 84 sets the minimum age at 25 for the Lok Sabha and 30 for the Rajya Sabha. The oath form is in the Third Schedule, not the Second.
• Art. 104 imposes a ₹500-a-day penalty for sitting or voting before taking the oath or while disqualified.
• Art. 103: the President decides Art. 102(1) disqualifications and is bound by the Election Commission's opinion. Trap: defection cases are decided by the presiding officer, not the President.
• Guru Gobinda Basu (1963): tests for office of profit (appointment, removal, pay, control). Jaya Bachchan (2006): capacity for money gain matters even if no pay is drawn.
• Consumer Education and Research Society (2009) upheld the retrospective 2006 amendment to the 1959 Act. It was the Bill President Kalam had returned.
• Lily Thomas (10 July 2013) struck down RPA s. 8(4). The 2013 Bill to undo it was withdrawn [6].
• Double membership: elected to both Houses → choose within 10 days or the Rajya Sabha seat lapses. MP who is also an MLA → resign the state seat within 14 days or the Parliament seat lapses.
• Art. 101(4): a seat may be declared vacant after 60 days' absence without permission. 33rd Amendment (1974): a resignation must be voluntary and genuine.
• MPLADS: began December 1993. ₹5 crore a year since 2011-12. Suspended FY 2020-21 and 2021-22. 2023 guidelines with the e-SAKSHI portal [2][3]. Upheld in Bhim Singh (2010).

Mains Points

• Office of profit as a check on the executive. The bar keeps legislators independent of the executive. But the term is undefined, and Parliament can exempt posts even with retrospective effect (2006 amendment, upheld in 2009). This lets ruling parties protect their members. Parliamentary-secretary posts in the states are used to get around Art. 164(1A) [5]. Reform options: a clear legal definition, or a negative list of barred posts in a new Act, as the draft Bill of 2024 attempts [5].
• Criminal cases among legislators. Lily Thomas ended the protection given to convicted members [6]. The Law Commission (2014) proposed disqualification once charges are framed for serious offences, with safeguards against false cases [7]. The trade-off is between cleaning up politics and the presumption of innocence, given misuse of criminal cases against opponents. The Rahul Gandhi episode (2023) showed how much depends on whether a higher court stays the conviction.
• Who should decide disqualification? Under Art. 103 the decision rests on the Election Commission's opinion, which is neutral. Defection cases go to the Speaker, who comes from a party. This difference is an argument for sending Tenth Schedule cases to the President or the Election Commission as well. The Delhi High Court's 2018 ruling also shows the need for a fair hearing in these cases.
• MPLADS: development or a conflict with accountability? Supporters say it lets MPs meet local needs, and the e-SAKSHI portal improves transparency [2][3]. The 2nd ARC (2007) said it blurs the line between legislature and executive and weakens Parliament's oversight. Bhim Singh (2010) upheld it in law, but the policy debate continues.