TOPIC- GROUDS OF DISQUALIFICATION OF MP & MLA WITH SPECIAL REFERNCE

TO OFFICE OF PROFIT & ANTI DEFECTION LAW

PREPARED BY -AKSHITA JAIN ASHOK K. MINJRAHUL MOHANTYSHARIKA SRISHTI(Students New Law College, BVP, Pune)

Ground of Disqualification of Members Of Parliament and State Legislature

I. Constitutional Disqualifications

II. Statutory Disqualifications

I. CONSTITUTIONAL DISQUALIFICATIONS

Art 102 (1)191 (1)

a. office of profit

b. Unsound mind

c. Insolvent d. Not a citizen

e. Disqualified under law

I. Constitutional Disqualifications

(1) A person shall be disqualified for being chosen as, and for being, a member of either House of

Parliament(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;

(b) if he is of unsound mind and stands so declared by a competent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is

under any acknowledgement of allegiance or adherence to a foreign State;

Article 102(1) members of the

Parliament

191 (1) Members of State legislature

(e) if he is so disqualified by or under any law made by Parliament Explanation

For the purposes of this clause a person shall not be deemed to hold an office

of profit under the Government of India or the Government of any State by

reason only that he is a Minister either for the Union or for such State

(2) A person shall be disqualified for being a member of either House of

Parliament if he is so disqualified under the Tenth Schedule

243-F(1) Disqualifications for

membership from Panchayat

243-V(1) Disqualifications for

membership from Municipality

(1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat or municipality

(a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State (b) if he is so disqualified by or under any law made by the Legislature of the State

Office of ProfitThe office of profit means an office to which some benefit is derived. The actual making of profit is not necessary. Profit means pecuniary gain or any material gain derived from the office. Profit may be received in the form of salary, remuneration etc. not as honorarium. Rationale of office of profitThe object of Articles 102(1)(a) and 191(1)(a) is that there should not be any conflict between the duties and interests of an elected member and to see that such an elected member can carry on freely and fearlessly his duties without being subjected to any kind of governmental pressure

Purpose is to secure independence of MPs and MLAs from

influence of the Government

Make them discharge their functions without fear or favour

The provision is thus designed to protect the democratic fabric

of the country from being corrupted by executive patronage.

Decision on Disqualification of MP’s MLA’s

Article 103 (1) When the question of disqualification of Member of Parliament arise the question of disqualification is referred to the President who will take a decision on the advice of the Election Commission and his decision shall be final

Article 192(1) When the question of disqualification of Member of S.L arise the question of disqualification is referred to the Governor who will take a decision on the advice of the Election Commission and his decision shall be final

 

• The courts determine from case to case whether the specific office involved may be characterized as an office under the government having regard to its various features. In Ashok kumar v. Biswas 1985 the court has observed that “ for determination of the question whether a person holds an office of profit under the government each case must be measured and judged in the light of relevant provision of the Act.

Case Laws

• In Ramakrishna Hegde’s case 1993, the court held that Hegde was not disqualified as he drew no salary but only allowances, etc. Though he held an office under the Central Government, it was not one of ‘profit’ as he was not getting any salary but only allowances.

• However, in the case of Jaya Bachchan v. Union of India 2006 the court was of a different opinion. The court in this case held that: “payment of honorarium, in addition to daily allowances in the nature of compensatory allowances, rent free accommodation and chauffer driven car at state expense, are clearly in the nature of remuneration and a source of pecuniary gain and hence constitute profit.”If there is pecuniary gain whether receiving it or not is immaterial, it is the office of profit.

Shibu Soren vs. Dayanand Sahay & Ors. 19 July, 2001

It was held by the Supreme Court that the office was one of profit. As Chairman of the

Interim Council he was receiving an honorarium of Rs. 1750/- per months; Daily

allowance at the rate of Rs. 150/- per day for the period spent outside the headquarters

besides traveling expenses as prescribed; Daily allowance at the rate of Rs. 120/- per

day for attending meetings of the interim council; Furnished rent free accommodation

(quarters) and A car with Driver. Therefore court held that all of this could not be

regarded as compensatory allowance, it amounted to salary and so the petitioner was

holding the office of profit.

II. Statutory DisqualificationsRepresentation of the People Act, 1951

1. Section 8 of RPA -person convicted of an offence punishable under following Sections of Indian penal code-

Section 153A- offence of promotion of enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony

Section 171E- offence of bribery

Section 171f- offence of undue influence or personation at an election

Section 376A, Section 376B, Section 376C and Section 376D- offences relating to rape

Section 498A- offences of cruelty towards a woman by husband or relative of a husband.

2. Section 8-A of RPA 1951- disqualification for a corrupt practice at an election

3. Dismissal for corruption or for disloyalty to the centre or State

4. Under section 9-A of RPA, He must not have any interest in government contracts, execution of government work or services

5. the holding of an office under a Government company contained in section 10 of RPA

6. under section 10-A - disqualification for failure to lodge account of election expenses within the time and in the manner required by the and under the Representation of the People Act, 1951.

DEFINITION OF ‘DEFECTION’

DEFINITION OF ‘DEFECTION’

• Any member of the house of Parliament or state legislative assembly who does not follow the orders of the political party to which they belong, then he comes under the purview of Anti Defection law.

What is defection?• Defection means “floor crossing” by a member of one political

party to another party.•Member of a party abandons loyalty towards that party to support

another party.• Defection was also known as Aaya Ram, Gaya Ram concept.

• Constitution of India initially did not refer to political parties.• No concept of multi-party system.• 1967 elections, Congress lost majority and from then onwards the concept of coalition government came into existence.• Resulted in large scale defections.• Affected functioning of the legislature.

HISTORY

• 52nd Amendment to remedy this situation• Arts. 101, 102, 190 and 191 changed• 10th Schedule laid down process of disqualification

of defecting members• Members of a Political Party• Nominated members• The intention was “to bring stability” to governments.

SOLUTION TO DEFECTION

According to para 2 of the 10th schedule a member of a house belonging to any political party shall be disqualified from being a member of the house-• If he has Voluntarily given up his membership of the political

party• If he votes or abstains from voting in the house contrary to any

direction issued by any political party on whose symbol he/she was elected.• Exception: prior permission or condoned by party within 15 days

of abstention or voting• Nominated member joining party 6 months after becoming an

MLA

GROUNDS OF DISQUALIFICATION

SPLITS AND MERGERS

• 91st Amendment 2003• Before this amendment a split in the party was recognized

when 1/3rd of its members defected• Post-amendment, 2/3rd defecting members constitute a merger

of partiesException to defection when;• Member of such merging party becomes a member of the new

political party• Member of such merging party chooses to function as a separate group

Nominated Members

• If the nominated member after being nominated joins any political party before the expiry of 6 months then it will not amount to defection.

• Whereas the elected members does not have any such privilege. If they will try to join other party would amount to defection.

Hence it is clear imbalance according to the outline of the anti defection provision.

Para 7 of 10th schedule

Bar of jurisdiction of courts- it is said in para 7 that

matters related to disqualification of members of the

house is referred to the chairman or the speaker of the

house as the case may be and their decision is final and

binding ,no court has the jurisdiction to decide the

disqualification of the member of house.

Kihota Hollohon v. Zachilhu and Others (1993) Issues: Is granting finality to the decision of the Speaker/ Chairman is valid? Held:This provision is valid however High Courts and the Supreme Court can exercise judicial review under the Constitution. But the Judicial review should not cover any stage prior to the making of a decision by the Speakers/ Chairmen.

CASE LAWS

Ravi S Naik v. Union of India (1994) Issue: Whether only resignation constitutes “voluntarily giving up” membership of a political party.

Judgment: There is a wider meaning of the words “voluntarily giving up membership”. The inference can be drawn from the conduct of the members also.

G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly (1996)

Issue: If a member is expelled from old party and he joins another party after being expelled, will it be considered as having voluntarily given up his membership?

Judgment: Once a member is expelled, he is treated as unattached member in the house but he continues to be a member of the old party as per the Tenth Schedule. If he joins a new party after being expelled, he can be said to have voluntarily given up membership of his old party.

Other recent example of defection are Arunachal Pradesh and Uttarakhand

• It affects the independence of MPs/ MLAs.• Constitution drafters didn’t intend to give the control of members to political parties. Interestingly, it’s only in the 10th schedule, which was included in 1985 that political parties are mentioned in constitution. (Also chief whip).• Many members speak up their mind and conviction –more discussion and thus better debates and solutions in parliament. Anti- defection law is against this.• In a diverse country like India, members also represent their constituencies. Hence, every member needs to be given voice to give voice to all regions and sections of the population.• No incentive for MPs/MLAs to research and understand on policies.

NEGATIVE IMPLICATIONS OF THE CURRENT ANTI-DEFECTION LAW:

CONCLUSION

In a very precise manner I would like to conclude this presentation on two notes, firstly As for free speech, of course it is restricted. Over the past 65 or so years in a series of cases, courts have placed a number of “time, place, and manner” restrictions on free speech. We can conveniently see that no right is absolute in nature, there are limitations on the name of Reasonable Restrictions .Secondly As it is accurately said that power corrupts and absolute power absolutely corrupts. Defection is not only anti-democratic but even a form of corruption for underlying motivation is personal gain and not any conscientious change of heart on the part of the defecting legislator.

THANK YOU