A question has arisen whether a Member of Parliament convicted by a court of law and awarded imprisonment of two years or more warrants being disqualified again by the President in terms of Article 102 read with Article 103 of the Constitution. With respect to disqualification of a Member of a State legislature, similar provisions are enshrined in Articles 191 and 192. A constricted, or rather an erroneous, view is gaining currency that the words used in the Constitution are ‘a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament’, if he incurs any of the disqualifications mentioned under Article 102 (1). Further, it is being said that a matter of disqualification must be referred to the President who shall give his decision, which will be final, after obtaining the opinion of the Election Commission (EC) and in accordance with such opinion.

Such an argument is utterly flawed as it is against the spirit of the Constitution, the law, judicial dicta and well-established parliamentary practice. The words ‘shall be disqualified’ are being given a very parochial rather than a harmonious construction. It is being said that after incurring any of these disqualifications, the MP has to be disqualified again with the decision of the President. If a question arises whether a member has incurred any of the disqualifications under Article 102(1), the question shall be referred to the President and who shall give his decision which shall be final in accordance with the opinion of the EC.

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Now, it must be noted that the words used in Article 103 are ‘if any question arises’ whereas Article 102(1) mentions the disqualifications. The grounds mentioned under Article 102(1) come under three categories. First, disqualifications on the ground of ‘unsoundness of mind’, ‘undischarged insolvency’ and loss of Indian citizenship. On these grounds, there is no recorded case so far of any member having been disqualified. But, nevertheless, it is clear from the Article that the concerned House can disqualify a member once he incurs these disqualifications.

Second, in case a representation is received by the President about the alleged assumption of an office of profit by a member, the representation is referred to the EC by the President for opinion. Jaya Bachchan was disqualified by the President w.e.f.14 July 2004 on receipt of a petition that she was occupying an office of profit under the UP Government. Following her disqualification, there was a spate of representations including a representation against Sonia Gandhi who was chairperson of National Advisory Council. To avoid possible political upheaval, the Parliament (Prevention of Disqualification) Act, 1959 was amended in 2006 retrospectively w.e.f. 4 April 1959. The result was that the membership of Jaya Bachchan and Sonia Gandhi was saved and similar petitions became infructuous.

In contrast, where a member is disqualified by a court of law, he stands disqualified from the date of the judgement. Shibu Soren was disqualified by the Apex Court in 2001on the ground of holding an office of profit. He was a member of Rajya Sabha and following the verdict of the Court, he stood disqualified and the Rajya Sabha Secretariat issued a notification to that effect. Once disqualified by a Court, there is no question or propriety to refer the matter to the EC as the question of disqualification stands settled by judicial dicta. Thirdly, the Speaker can disqualify a member under the Tenth Schedule on ground of defection. The decision of the Speaker is final under the Tenth Schedule subject of course to judicial review. An allegation of defection is not referred to the President or the EC. There is yet another category when a member can be expelled by the House without reference to any outside body or authority. Art.101 in respect of Parliament and Art. 190 in respect of State Legislature provide that in case a member remains absent from the House continuously for a period of sixty days without the approval of the House, his seat may be declared vacant. The motion for such removal is usually moved by the Minister for Parliamentary Affairs, and once approved by the House, the seat is declared vacant. Three members of the Provisional Parliament in April 1950, a member of the Lok Sabha (S.N.Mahapatra) in 1956, and a member of the Rajya Sabha (Baljinder Singh Hamdard) in December 2000 were expelled under Art. 101(4).

A member can be expelled by the House for unbecoming conduct. H.G. Mudgal in 1951 and 10 members of Lok Sabha and one member of Rajya Sabha in 2005 were expelled by the respective Houses for ‘cash for query’, that is unbecoming conduct of a legislator. The expulsions were upheld by the Apex Court in Raja Ram Pal v. Hon’ble Speaker Lok Sabha (2007). None of these cases were referred to the President for approving the expulsions since the legislature itself is competent to do so.

Under section 10A of the Representation of the People Act, 1951, an elected member can be disqualified by the EC for failure to lodge account of election expenses. A member of Rajya Sabha was disqualified by the EC in July 1991 and the Rajya Sabha Secretariat issued the notification of disqualification. The matter was not referred to the President.

In terms of Article 102(1)(e), apart from the anti-defection law which is adjudicated by the Speaker/Presiding Officer, a member can be disqualified by or under any law by a court of law. The legal position after the judgement of the Apex Court in the Lily Thomas case (2013) is that a conviction which carries a sentence of two years or more will automatically result in disqualification since the Apex Court also struck down section 8(4)of the Representation of the People Act, 1951, as being unconstitutional.

The earliest case is of Rasheed Masood who lost his membership of Rajya Sabha due to conviction in a corruption case in 2013. Lalu Prasad and Jagdish Sharma too were unseated from the Lok Sabha following their conviction and sentence of imprisonments which were for more than two years. There was no reference by either House to the President or the EC since they had been disqualified by the Court. The Lok Sabha Secretariat issued a notification informing the stakeholders including the EC about the vacancy caused due such disqualification.

So, the House cannot defer the date of disqualification of a member disqualified by the Court. Once the question of disqualification is judicially settled, a legislature cannot delay or stall the same, except by enacting a new law or by amending the extant act. The secretariat only issues notification about the vacancy so that the EC takes recourse to fill the vacancy thus caused. However, disqualification of a member would be untenable if the conviction is stayed as reiterated by the Appellate Court in the Lok Prahari case, 2018. It is therefore incumbent upon the legislature Secretariat to reinstate the membership with equal speed and alacrity once the decision of conviction is stayed by an Appellate Court. (The writer is a retired Addl Secretary, Lok Sabha and a member of Delhi Bar Council. Views expressed are personal.)