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Qualification And Disqualification Of Members Of Parliament

Introduction

India is one of the world’s largest democratic country and has a written constitution which controls the external matters of its subjects. Citizens of the country choose their representatives and these representatives form a legislative body known as Parliament. The parliament of India is the supreme legislative body of the Republic of India. Although the Parliament of India is an absolute legislative authority, all laws made by them should be in accordance with provisions provided by the constitution which is considered as supreme. The main function of the parliament is to make laws. It mainly consists of the president, the Upper House i.e. Rajya sabha and the Lower House i.e. Lok Sabha. Members of the Houses of Parliament bring proposals before the parliament and it will make the law after scrutinizing, according to the provisions of the constitution.

Composition of Parliament

The concept of the parliamentary form of government has been adopted from the British constitution. The term Parliament is derived from the French expression ‘Parle’ which means to Speak. Parliament is a body of representatives elected by the people in order to make laws according to their needs in accordance with the constitution. Although the Indian constitution follows the British pattern, the Parliament of India is not sovereign. The laws and rules made by them should not be contrary to the basic structure of the constitution. It should be subjected to the review of the judiciary to check whether it is against the constitution or not. The Indian parliament is the creature of the constitution and derives all its powers from the constitution. It is not a sovereign body.

Article 79 clearly states that there should be a parliament for the union. It consists of three organs, the President, Rajya Sabha and Lok Sabha. Most members of both houses of parliament are elected members and some of them are nominated by the president among distinguished persons having special knowledge in literature, art, social service and so on.

The President of India

President is one of the organs of the parliament. Article 52 of the Indian Constitution, clearly states that there should be a president of India. He is the commander of the defense force in India. All executive actions of the state will be taken in his name. The constitution of India bestows him with many powers such as executive power, Legislative power, Judicial power, Emergency power, ordinance-making power and so on.

Though he is not a member of either house of parliament, he is a constituent part and an integral part of the parliament. If he is elected to any house of parliament, his seat in such house will be vacant.

Rajya Sabha

Rajya Sabha is the upper house of the parliament, consisting of representatives of states and union territories, indirectly elected by the members of the legislative assembly of the state in accordance with proportional representation by means of social service and so on. The maximum strength of this house is fixed at 250, out of which 238 are to be representatives of different states and union territories and 12 are to be nominated members by the president.

Unlike Lok Sabha, it is a permanent body and it will not be subject to dissolution. However, its members are elected for a period of six years but one-third of its members retire at the expiration of every second year.

Lok Sabha

Lok Sabha is the lower House of the parliament, consisting of representatives directly elected by the people. The maximum strength of this House is fixed at 550, out of which 530 are to be representatives of the states by direct election from territorial constituencies in the state and 20 are representing the union territories. Reserved seats of Anglo Indians were discontinued by the 126th Constitutional Amendment, 2019.

Unlike the Rajya Sabha, it is not a permanent body and it will be subject to dissolution. It continues for 5 years from the date on which it holds its first meeting after being constituted. The president may, however, dissolve it even before its tenure and it may be extended by the by-law of parliament for a period of one year during the time of the proclamation of emergency.

Qualification of Members of Parliament

Article 84 prescribes the following qualifications to be eligible for being a member of either house of Parliament.

  • He must be a citizen of India.
  • Minimum age 30 years in Rajya Sabha and 25 years in Lok Sabha.
  • He must make an oath or affirmation before some persons authorized on that behalf by the Election Commission.
  • He must possess some qualifications prescribed by parliament. For this purpose, Parliament enacted the Representation of People Act, 1951. Sections 3 and 4 of the same act provide that a person to be qualified for being a member of either house of parliament must be registered as a voter in any of the parliamentary constituencies.

Disqualification of Members of Parliament

Article 102 of the Indian Constitution, deals with some grounds for disqualification of a member of either house of parliament. The following are grounds for a member of parliament to be disqualified;

1. A person of unsound mind.

2. A person of the undischarged insolvent.

3. Disqualification for holding of profit:

The concept of holding office has been adopted from the British parliament model. The term ‘office of profit’ has neither been defined in the constitution of India nor in the Representation of People Act. But, it is interpreted to mean ‘Monetary gain ‘. As It is defined nowhere, it is developed through many case laws regarding this. In the case of Abdul Shukoor v. Election Tribunal, the honorable court held introduced some tests to be identified whether it is the office of profit or not. The honorable court introduced some tests to be identified as to whether the office of profit or not.

  1. Whether the government has the power of appointment.
  2. Whether the government has the right to dismiss the holder of the office.
  3. Whether the government pays remuneration.
  4. Whether the functions performed by the holder of the office, are for the government.
  5. Whether the government exercises control over the performance of those functions.

4. Disqualification under the Representation of People Act:

The representation of people act, enacted by the Parliament, provides some grounds for the disqualification of members of parliament. A person shall not be a member of parliament if-

  1. He must have been found guilty in the practice at an election.
  2. He must have been convicted for an offense resulting in imprisonment for a term of two or more years.
  3. He must have failed to lodge an account for election expenses.
  4. He must not have been interested or shared in government services.
  5. He must not be a director or manager of profit in a corporation in which government has at least 25% share.
  6. He must not have been dismissed from the government service due to corruption or disloyalty to the state

5. Disqualification on the ground of Defection:

Anti-defection law coming into effect by 52nd Amendment Act made necessary changes in Articles 101, 102, 190 and 191 and added a tenth schedule to the constitution. Anti-defection law is a law that prohibits elected representatives of a party from violating his party’s whip or joining another party after being elected as a representative.

Anti-defection law is implemented by the 52nd Amendment Act, during the Rajiv Gandhi government in the year of 1985.

The second paragraph of the tenth schedule states that a member of a house belonging to any political party will be disqualified for being a member of either house of parliament;

  1. If he voluntarily gives up his membership in such a political party.
  2. If he votes or abstains from voting contrary to the directions of his political party unless prior permission is given to him.
  3. A member elected as an independent candidate shall be disqualified if he joins any party after being elected.

Exceptions

  1. Where the original political party merges with another party, provided 2/3 of the members of the party agreed to such a merger.
  2. When a member of a political party is elected as the presiding officer, he may give up the membership of that party and become a member of another party.

6. Disqualification due to vacation of seats:

Article 101 (1) provides that no person shall be elected as a member of both houses of parliament. The parliament enacted the Representation of People Act for this purpose and it provides that-

  1. If a person is elected to both houses of parliament simultaneously, he must choose the house in which he desires to serve, within 10 days soon after the publication of the result. If he fails to choose the house within the prescribed time, his seat in the Rajya Sabha will become vacant.
  2. A person already a member of Rajya Sabha, is elected to Lok Sabha, and he may choose the house he desires to serve within 10 days. If he fails to choose within the prescribed time, his seat in Rajya sabha will become vacant.
  3. A person already a member of Lok Sabha, is elected to Rajya Sabha, he may choose the house he desires to serve within 10 days. If he fails to choose, his seat in Lok sabha will become vacant.

Article 102 (2) provides that no person shall be member both of parliament and of a house of the Legislature of the state as per the Prohibition of Simultaneous Membership Rules, 1950. This rule describes that if any person is elected to both parliaments and the house of the Legislature of state, at the same time, he may make the choice of the house he desires to serve within 14 days. In default of such choice within the prescribed time, his seat in parliament will become vacant.

Article 102 (3) provides that any member of either house of parliament can resign his seat by addressing to the presiding officer i.e. chairman in the Rajya Sabha and speaker in the Lok Sabha. A chairman of Rajya Sabha and speaker of Lok Sabha can resign their seat by addressing to deputy chairman and deputy speaker respectively. On the acceptance of their resignation, their seat will be vacant.

Article 101 (4) provides that if a member of either house of parliament is absent for a period of sixty days, without prior permission of the house which he belongs, his seat in the such house will become vacant.

Conclusion

The Parliament of India is the supreme legislative body of the Republic of India and it is a union legislature composed of a president and both houses of parliament. Although it follows the British government pattern, it is not a sovereign authority. When the members of either house of parliament bring any proposal, the law made by the parliament, in the wake of it, should be in accordance with the constitution. Both elected and nominated members have in Lok sabha and Rajya sabha and they are directly and indirectly elected respectively. Both the Indian constitution and the Representation of People Act provide some qualifications that must be satisfied for qualified to be a member of either house of parliament.

Reference

Constitutional Law of India by Dr. J. N. Pandey

The Constitutional Law of India by Narendra Kumar

The Constitution of India by P.M. Bakshi

This article has been written by El-Varith Fahad. AP, studying B.A.LL.B at Markaz Law College at Calicut, Kerala

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