Sep 22, 2023

When can an MLA be Disqualified?

Recently, the Supreme Court directed the Maharashtra Speaker Rahul Narwekar to set down a timeline and schedule to decide disqualification petitions against Chief Minister Eknath Shinde and other rebel Shiv Sena MLAs by the Uddhav Thackeray faction of Shiv Sena. On May 11th, the Supreme Court had decided that the Maharashtra Speaker will take a decision regarding the disqualifications, however no proceedings had been held in the last four months. 

In this Weekly, let’s take a look at what is the process of disqualification of MLAs under Indian law. 

What are the qualifications required to be an MLA?

  • They should be a citizen of India
  • They should not be less than 25 years of age for the Legislative Assembly, and 30 years of age for the Legislative Council. (Some states like Maharashtra, Karnataka, Uttar Pradesh have 2 houses.) 
  • They should not be convicted of any offence and sentenced to imprisonment of 2 or more years. 
  • They should be of sound mind. 
  • They should be a voter from a constituency within the state from which they are contesting to be an MLA. 

What are the ways and reasons an MLA can be disqualified?

Under Article 191 of the Indian Constitution, an MLA can be disqualified if:

  • They hold an office of profit under the Government of India or a state other than an office that the Legislature declares will not disqualify the holder. 
  • If they are declared to be of unsound mind by a competent court.
  • If they are an undischarged insolvent, i.e. they are not able to repay their debts. 
  • If they are not a citizen of India or have voluntarily acquired the citizenship of another state or have an allegiance or adherence to the laws of a foreign state. 

If anyone has to be disqualified due to the conditions in Article 191, the decision for disqualification will rest with the Governor of the state. However, the Governor has to consult with the Election Commission to reach this decision. 

They can also be disqualified under Schedule 10 of the Constitution of India, Anti-Defection Law

  • If an MLA voluntarily gives up the membership of a political party.
  • If an MLA either votes or abstains from voting in the House according to the directions issued by their political party, without obtaining prior permission from the party. 
  • If an MLA elected independently of any party, joins a political party after the election. 
  • However, if one-third of the members of the party the MLA belongs to, surrender their membership, the provisions of Anti- Defection Law won’t apply. Instead, it will be considered a split. 

The decision to disqualify based on anti-defection rests with the Speaker of the house. 

Under the Representation of the People Act, 1951 (RP Act), an MLA can be disqualified if:

  • They are found guilty of an illegal practice with regards to the election
  • If they are convicted and sentenced to imprisonment under Section 8 of the Act for matters like promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. 

In Lily Thomas v. Union of India, and Lok Prahari v. Union of India, the Supreme Court ruled that any MP, MLA or MLC who is convicted of a crime and given a minimum imprisonment of 2 years, loses their membership of the House with immediate effect. 

However, the disqualification can be reversed if a higher court grants a stay on the conviction or decides the appeal in favor of the convicted person. 

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