DISQUALIFICATION OF LEGISLATORS

INTRODUCTION

• Article 327 and 328 of the Constitution confers the power on parliament and state legislature respectively to make rules for elections to Parliament and state legislature.

• Consequently, the Parliament has passed Representation of People Act (RPA), 1951 to regulate the conduct of elections

PROVISIONS FOR DISQUALIFICATION

• Holding office of profit {A102 for Parliament and A191 for state legislatures)- the president may remove the representative based on the advice of the Election Commission of India {ECI) under A103.

• Defection {Under 10th Schedule added as part of 52nd Amendment, 1985)

• RPA, 1951 {Under various sections to prevent criminalisation of politics)

SALIENT FEATURES OF RPA

DISQUALIFICATION UNDER RPA 1951

• Section 8 (1): Disqualification on conviction for "certain offences" such as bribery , rape etc for a period of six years from date of conviction

• Section 8 (3): Disqualification on conviction for "any offence" {other than "certain offences") and sentenced to imprisonment for not less than two years shall be disqualified from the date of such conviction and remains disqualified for a period of six years after his release Eg:- Further, SC in Lily Thomas Vs U.O.I (2013) ruled conviction of representatives would immediately lead to disqualification according to sec 8

• Section 8A: Disqualification on ground of corrupt practices: Disqualification for 6 years from the date of conviction if found guilty of corrupt practices by a court. Corrupt practices as defined under section 123 incudes bribery, obtaining assistance from govt officials or undue influence during elections etc Eg:- Indira Gandhi's disqualification in Indira Gandhi v. Raj Narain (1975) case

• Section 9: Dismissal from government service: A representative is disqualified for 5 years if he/she had been earlier dismissed from government service for corruption or disloyalty to the state.

• Section 9A: Disqualification for government contracts: A representative is disqualified if they have any subsisting contracts with the government

• Section 10A: Disqualification for failure to lodge an account of election expenses: A representative is disqualified

for three years if they fail to submit the account of their election expenses within the prescribed time.

PROCEDURES FOR DISQUALIFICATION

• Any candidate or elector could file an election petition for such pre-election disqualification matters in the High Court within 45 days from date of election of the representative.

PROVISIONS AVAILABLE FOR THE REMOVAL OF DISQUALIFICATION

• Appeal to Supreme Court against High Court verdict on the election petition within 30 day

• Approach ECI under Section 11 of RPA, except against disqualification on for corrupt practices

• Application to the President/Governor: President {Art 103) / Governor {Art 192) performs adjudicatory and declaratory roles on post-election disqualification matters based on prior opinion of ECI

Case law :- SC in Consumer Education and Research Society vs Union of India (2009), ruled that president being the adjudicatory authority holds such powers.

• Court order: challenging the disqualification verdict

Case Law :- SC stay on conviction of Rahul Gandhi in a defamation case (2023) by a Gujarat court resulted the reinstation of Gandhi's MP status

Case Law :- Lok Prahari v Union of India (2018): SC ruled, disqualification triggered by a conviction will be reversed if the conviction is stayed

CONCLUSION