Disqualication proceedings against MLAs

The Supreme Court stayed the disqualification of   six Himachal Pradesh MLAs who were appointed as Chief Parliamentary Secretaries (CPS) in 2023 by providing them temporary relief. 

Disqualification Proceedings Against MLAs

Disqualification proceedings against Members of the Legislative Assembly (MLAs) can arise due to various reasons, including holding an office of profit, defection, or other violations of constitutional provisions.

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Provisions for Disqualification of a Member of the Legislative Assembly

• Constitutional Provisions (Article 191)
  • A person can be disqualified if:
  • Holding an Office of Profit: They hold a government position that earns profit unless exempted by state law.
  • Mental Fitness: They are declared mentally unfit by a court.
  • Insolvency: They are declared insolvent and have not cleared it.
  • Citizenship: They are not an Indian citizen, have taken foreign citizenship, or are loyal to another country.
  • Parliament’s Laws: Disqualified under any law made by Parliament.
• Anti-Defection Law (Schedule 10)
  • The Tenth Schedule of the Indian Constitution outlines rules for disqualifying members of Parliament and State Legislatures on grounds of defection.
  • Introduced through the 52nd Constitutional Amendment Act, 1985, it is commonly referred to as the Anti-Defection Act.
  • Grounds for Disqualification
    • Voluntary Resignation
      • A member is disqualified if they voluntarily gives up his party membership
    • Voting Against Party Directives
      • Members are disqualified if they vote or abstain from voting against their party’s instructions without prior approval.
    • Independently Elected Members
      • An independent member who joins any political party after election will face disqualification.
    • Nominated Members
      • A nominated member joining a political party after six months from their nomination will be disqualified.
  • Decision Authority
    • The Speaker or Chairman of the respective House decides on disqualification matters.
    • Their decision is considered final.
    • Proceedings

• • • • Disqualification-related proceedings under this Schedule are treated as legislative proceedings of Parliament or the State Legislature.
• Disqualification Under Parliamentary Law: Rules under the Representation of the People Act (RPA), 1951
  • Disqualification for Conviction
    • A legislator convicted under the Prevention of Corruption Act (PCA), 1988:
      • Punishment is limited to a fine Only: Disqualified for six years from the date of conviction.
      • Imprisonment:
        • Disqualified from the date of conviction until the imprisonment ends.

• • • • • Plus, an additional six years after release.
  • Other Grounds for Disqualification
    • Found guilty of election offences or corrupt practices during elections.
    • Dismissed from government service for corruption or disloyalty to the state.
    • Convicted for:
      • Promoting enmity between groups.
      • Bribery or similar crimes.
    • Failed to submit election expense accounts within the required time.
    • Holding an interest in government contracts, works, or services.
    • Being a director, managing agent, or holding an office of profit in a government-owned corporation with at least 25% government shareholding.
    • Punished for social crimes such as:
      • Untouchability.
      • Dowry practices.
      • Sati rituals.

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How Disqualification is Different from Suspension?