Qualification and Disqualification

This article is written by Soumya Shekhar, Som Law College Prayagraj ,UP , 4th Semester (LL.B) ,intern under  Legal Vidhiya.

Abstract

Any individual trying to be a Member of Lok Sabha or be it Legislative Assembly, regardless of whether by political race or by designation, must be fit and should not be precluded under the Constitution or any law for such enrolment. The vital date for deciding if a competitor is qualified or disqualified is not the date of recording the selection paper but rather the date fixed for the analysis of nominations. Meaning  opinions in the biggest vote- grounded system on the earth will  really be a test given the size of the nation and of its  crowd, Indian public races have been the biggest appointive exercise on the earth since the time the main public races in 1952. also, the social, semantic, ethnical, and strict variety of the Indian culture, just as the government idea of the Indian state, make this function an especially intricate bone.

Keywords – Member of lok-sabha, legislative assembly, qualified, disqualified, election commission, vote grounded system, nominations, appointment.

Introduction

India is one of the world’s largest democratic country and has a written Constitution which controls the external matters of its subjects. Citizens of the Country choose their representatives and these representatives form a legislative body known as Parliament. The Parliament of India is the supreme legislative body of the Republic of India. Although the Parliament of India is an absolute legislative authority, all laws made by them should be in accordance with provisions provided by the constitution which is considered as supreme. The main function of the parliament is to make laws. It mainly consists of the president, the Upper House. Rajya Sabha and the Lower House i.e. Lok Sabha. Members of the Houses of Parliament bring proposals before the parliament and it will make the law after scrutinizing, according to the provisions of the constitution.

Any person aspiring to be Member of Lok Sabha/ Legislative Assembly, whether by election or by nomination, must be good and mustn’t be disqualified under the Constitution or under any law for similar class. pivotal date for determining whether a seeker is good or disqualified is not the date of filing nomination paper but the date fixed for the scrutiny of nominations.

Qualification of candidate in Election

There are few articles in The Constitution of India which help us study the election process as well as the qualifications and disqualifications required to be a suitable candidate for election.  

•           Article 84 briefs us about the Qualification for Membership of Parliament.

Capability for participation of Parliament an individual won’t be capable to be picked to fill a seat in Parliament except if he,

1. Will be an occupant of India, and makes and buys in before some individual approved for that benefit by the Election Commission a pledge or confirmation as indicated by the structure established for the reason in the Third Schedule.
2. Is, on interpretation of a seat in the Council of States, at the very least thirty years old and, on interpretation of a seat in the House of the People, at the very least a quarter-century old enough and
3. Has such different capabilities as might be endorsed for that benefit by or beneath any law made by Parliament.

•           Article 173 briefs us about Qualification for members of the State Legislative.

Capability for enrolment of the State Legislature an individual won’t be able to be picked to fill a seat in the Legislature of a State except if he,

1. Will be a resident of India, and makes and buys in before some individual approved for that benefit by the Election Commission a pledge or confirmation as per the structure set out for the reason in the Third Schedule.
2. Is, on account of a seat in the Legislative Assembly, at the very least a quarter-century old enough and on account of a seat in the Legislative Council, at the very least thirty years old and
3. Has such different capabilities as might be endorsed for that benefit by or under any law made by Parliament.

•           Qualifications of Article 84 & Article 173

The constitutional qualifications according to Articles 84 for turning into an individual from Member of Parliament and 173 for turning into an individual from State Legislature r of the Constitution are

1. Citizenship of India.
2. Oath or insistence to shoulder genuine confidence and loyalty to the Constitution.Least qualifying age.
3. Some other capabilities are recommended by Parliament.

Disqualification of Members of Parliament

Article 102 of the Indian Constitution, deals with some grounds for disqualification of a member of either house of parliament. The following are grounds for a member of parliament to be disqualified;

1. A person of unsound mind.
2. A person of the undischarged insolvent.

3. Disqualification for holding of profit:

The concept of holding office has been adopted from the British parliament model. The term ‘office of profit’ has neither been defined in the constitution of India nor in the Representation of People Act. But, it is interpreted to mean ‘Monetary gain ‘. As It is defined nowhere, it is developed through many case laws regarding this. In the case of Abdul Shukoor v. Election Tribunal, the honorable court held introduced some tests to be identified whether it is the office of profit or not. The honorable court introduced some tests to be identified as to whether the office of profit or not.

1. Whether the government has the power of appointment.
2. Whether the government has the right to dismiss the holder of the office.
3. Whether the government pays remuneration.
4. Whether the functions performed by the holder of the office, are for the government.
5. Whether the government exercises control over the performance of those functions.

4. Disqualification under the Representation of People Act:

The representation of people act, enacted by the Parliament, provides some grounds for the disqualification of members of parliament. A person shall not be a member of parliament if-

1. He must have been found guilty in the practice at an election.
2. He must have been convicted for an offense resulting in imprisonment for a term of two or more years.
3. He must have failed to lodge an account for election expenses.
4. He must not have been interested or shared in government services.
5. He must not be a director or manager of profit in a corporation in which government has at least 25% share.
6. He must not have been dismissed from the government service due to corruption or disloyalty to the state

5. Disqualification on the ground of Defection:

Anti-defection law coming into effect by 52nd Amendment Act made necessary changes in Articles 101, 102, 190 and 191 and added a tenth schedule to the constitution. Anti-defection law is a law that prohibits tagged representatives of a party from violating his party’s scourge or joining another party after being tagged as a representative.

 Anti-defection law is enforced by the 52nd Amendment Act, during the Rajiv Gandhi government in the time of 1985.

The alternate paragraph of the tenth schedule countries that a member of a house belonging to any political party will be disqualified for being a member of either house of congress;

1. If he freely gives up his class in such a political party.
2.  If he votes or abstains from advancing contrary to the directions of his political party unless previous authorization is given to him.
3. A member tagged as an independent seeker shall be disqualified if he joins any party after being tagged.

Exceptions

1. Where the original political party merges with another party, handed2/3 of the members of the party agreed to such a junction.
2. When a member of a political party is tagged as the presiding officer, he may give up the class of that party and come a member of another party.

6. Disqualification due to vacation of seats:

Article 101( 1) provides that no person shall be tagged as a member of both houses of congress. The congress legislated the Representation of People Act for this purpose and it provides that.

1. he must choose the house in which he desires to serve, within 10 days soon after the publication of the result, If a person is tagged to both houses of congresssimultaneously.However, his seat in the Rajya Sabha will come vacant, If he fails to choose the house within the specified time.
2. A person formerly a member of Rajya Sabha, is tagged to Lok Sabha, and he may choose the house he desires to serve within 10days.However, his seat in Rajya sabha will come vacant, If he fails to choose within the specified time.
3. A person formerly a member of Lok Sabha, is tagged to Rajya Sabha, he may choose the house he desires to serve within 10days.However, his seat in Lok sabha will come vacant, If he fails to choose.

 Article 102( 2) provides that no person shall be member both of congress and of a house of the Legislature of the state as per the Prohibition of contemporaneous Class Rules, 1950. This rule describes that if any person is tagged to both congresses and the house of the Legislature of state, at the same time, he may make the choice of the house he desires to serve within 14 days. In dereliction of similar choice within the specified time, his seat in congress will come vacant.

Article 102( 3) provides that any member of either house of congress can abdicate his seat by addressing to the presiding officer i.e. president in the Rajya Sabha and speaker in the Lok Sabha. A president of Rajya Sabha and speaker of Lok Sabha can abdicate their seat by addressing to deputy president and deputy speaker independently. On the acceptance of their abdication, their seat will be vacant.

 Article 101( 4) provides that if a member of either house of congress is absent for a period of sixty days, without previous authorization of the house which he belongs, his seat in the similar house will come vacant.

Conclusion

The Parliament of India is the supreme legislative body of the Republic of India and it’s a union council composed of a chairman and both houses of congress. Although it follows the British government pattern, it isn’t a autonomous authority. When the members of either house of congress bring any offer, the law made by the congress, in the wake of it, should be in agreement with the constitution. Both tagged and nominated members have in Lok sabha and Rajya sabha and they’re directly and laterally tagged independently. Both the Indian constitution and the Representation of People Act give some qualifications that must be satisfied for good to be a member of either house of congress. It has a most economic impact on the enhancement of the good likewise, educated height of residers. Yet, the frame is n’t without traps. Notwithstanding, its failings or mars do n’t dwindle the greatness of the ideal of this frame. The failings of the frame are generally set up because of social, financial, or authentic factors curious to it, which can be excluded or limited. Further, the failings might be cured, not by lower, yet by further maturity rules system and, hence, in malignancy of certain failings, this frame has inconceivable favorable circumstances in discrepancy with all different fabrics of Government.

References

• https://lawcorner.in/qualification-and-disqualification-of-members-of-parliament/#Qualification_of_Members_of_Parliament  visited on 09/05/2023
• https://bnwjournal.com/2020/11/30/qualification-disqualification-of-candidates-in-elections/ visited on 10/05/2023
• https://himachal.nic.in/WriteReadData/l892s/6_l892s/1555913943.pdf  visited on 12/05/2023
• https://bnwjournal.com/2020/11/30/qualification-disqualification-of-candidates- in-elections/ visited on 12/05/2023