Editorial

Introduction

Disqualification of legislators refers to a legal process by which a member of a legislative body, such as a parliament, or state legislature, is rendered ineligible to hold office or serve in that legislative body.

Legal Aspect of Disqualification

Constitution of India (COI)

• Article 102 of the Constitution of India, 1950 (COI) provides - Disqualifications for membership as a member of Parliament and mentions following grounds:
  • 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 acknowledgment of allegiance or adherence to a foreign State;
    • (e) if he is so disqualified by or under any law made by Parliament.
    • (2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.
• Article 191 of COI mentions the grounds for Disqualifications for membership from the Legislative Assembly or Legislative Council of a State which are same as mentioned above under Article 102.
• Also, Schedule X of COI deals with the grounds of disqualification for defection.
• It is popularly referred to as the ‘Anti-Defection Law’ and was inserted by the 52nd Amendment to the Constitution (1985). Here are the key provisions:
  • Disqualification on Grounds of Defection:
    • A Member of Parliament or a Member of a State Legislature (MLA or MLC) can be disqualified if they voluntarily give up the membership of the political party on whose ticket they were elected.
    • They can also be disqualified if they vote or abstain from voting in the legislature contrary to the party's directives without obtaining prior permission from the party.
  • Exemption: The Anti-Defection Law provides exemptions in cases of a merger of political parties. Members are exempted from disqualification when at least two-thirds of the members of the original political party merge with another political party. Furthermore, for this exemption to apply, members must either:
    • Become members of the party they have merged with.
    • Choose not to accept the merger and opt to function as a separate group.
  • Decision Making Authority: The decision to disqualify a member from a House rest with the Presiding officer of the house.

Representation of People Act, 1951

• Section 8 of the Act Representation of People Act, 1951 (RPA) specifies different categories of offences leading to the disqualification of sitting Members of Parliament, Members of Legislative Assembly and MLCs. Some of which are where a person is convicted under:
  • A person convicted of an offence punishable under—
    • Offences under Section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or Section 171E (offence of bribery) or section 171F (offence of undue influence or personation at an election) or sub-section (1) or sub-section (2) of Section 376 or Section 376A or Section 376B or Section 376C or Section 376D (offences relating to rape) or Section 498A (offence of cruelty towards a woman by husband or relative of a husband) or sub-section (2) or sub-section (3) of Section 505 (offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) of the Indian Penal Code, 1860.
    • The Protection of Civil Rights Act, 1955, which provides for punishment for the preaching and practice of “untouchability”, and for the enforcement of any disability arising therefrom.
    • Section 11 (offence of importing or exporting prohibited goods) of the Customs Act, 1962.
    • Sections 10 to 12 (offence of being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place) of the Unlawful Activities (Prevention) Act, 1967.
    • The Foreign Exchange (Regulation) Act, 1973.
  • Clause (3) of Section 8 was added in the year 1989 in the Act stating that the person must be convicted for at least for 2 years to be covered by this section to initiate the disqualification proceeding.

Judicial Precedents on Law of Defection

• The SC in the case of K. Prabhakarn v. P. Jayaranjan (2005) stated that the clause is inserted in Section 8 of the RPA to prevent people having a criminal background from being a part of country’s governance. The court further added that those who break the law should not make the law.
• In the matter of Lily Thomas v. Union of India (2013), SC has stated that if any sitting MP or MLA is convicted by virtue of the provisions of Section 8 of the RPA he shall be considered disqualified vide this judgment. The SC in this judgement has also iterated that Section 8(4) of RPA which mentions that a three-month window is allowed to legislators to appeal against such a conviction delaying the disqualification till exhaustion of time period provided for appeal as unconstitutional.
• In the case of Rama Narang v. Ramesh Narang & Ors. (1995), the apex court held that the appellate court can exercise its power to stay a conviction proceeding under Section 389 of the Code of Criminal Procedure, 1973 and High Court by using its inherent powers under section 482 of the Code.
• An order to stay a conviction cannot be made a rule but can be used in the rarest of rare cases as stated in the case of Ravikant S Patil v. Sarvabhouma S Bengali (2007) and the same was reiterated in the case of Navjot Singh Sidhu v. State of Punjab & Another (2007).

Measures to Enhance Efficacy of Anti-Defection Law

Defection laws are intended to promote political stability and uphold the integrity of the democratic process. Some of the measures that can be taken for enhancing the efficacy can be:

• By Ensuring that anti-defection laws have clear and unambiguous provisions, leaving no room for interpretation or manipulation.
• Establishing a specific time frame within which the presiding officer of the legislature should make a decision on disqualification cases. Delayed decisions can undermine the effectiveness of the law.
• Imposition of stricter penalties on legislators who violate anti-defection laws may evade unnecessary activities that lead to disqualification.
• Increasing transparency by making the process of disqualification hearings easily accessible to the public.

Conclusion

A well-crafted regulatory framework not only serves as a bulwark against corruption but also merges the attention of parliamentarians and legislators towards the pursuit of better governance. In present times, where the integrity of democratic institutions is of paramount importance, the prudent regulation of the 10th Schedule and other laws pertaining to disqualification of legislators can pave the way for a more accountable, efficient, and effective democratic system.