Qualifications and disqualifications for membership of Legislative Assembly

Qualifications and
 disqualifications for
   membership of
Legislative Assembly

                         1

Any person aspiring to be Member of
State Legislature, whether by election or
by nomination, must be qualified and must
not be disqualified under the Constitution
or under any law for such membership.
Crucial date for determining whether a
candidate is qualified or disqualified is not
the date of filing nomination paper but the
date fixed for the scrutiny of nominations.

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Constitutional Qualifications
        (Article 173 of the Constitution)
Citizenship of India.

Oath or affirmation to bear true faith and
allegiance to the Constitution.

Minimum qualifying age.

Any other qualification prescribed by
Parliament.

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Oath or Affirmation under the
Constitution of India [Article 173 (a)]
Every candidate has to make and
subscribe either an oath in the name of
God or a solemn affirmation in the form
prescribed for the purpose in the Third
Schedule to the Constitution.
The purpose of this oath or affirmation is
that the person undertakes to bear true
faith and allegiance to the Constitution and
uphold the sovereignty and integrity of
India.
                                           4

Persons before whom oath or affirmation to be
made :
 Returning Officer or any of the Assistant
  Returning Officers of the constituency.
 All stipendiary Magistrates of the first class,
  District Judges and persons belonging to judicial
  service of the State.
 Superintendent of the prison if the candidate is
  confined in a prison.
 Commandant of the detention camp if under
  preventive detention.
 Medical Superintendent/Medical Practitioner in
  case candidate is confined to bed.
 Diplomatic or Consular Representative of India in
  the country, if the candidate is out of India.
 Any other person nominated by the Election
  Commission, on application made to it.
                                                      5

Oath or Affirmation – when to be made :

Oath or affirmation must be made after the
 nomination paper has been submitted to RO.

It must be made before the commencement
 of the date of scrutiny of nominations, i.e.,
 latest by mid-night of the date preceding the
 date of scrutiny.

                                             6

Oath or affirmation by a candidate
contesting election from more than one
constituency :
Making and subscribing of requisite oath or
 affirmation in one constituency is sufficient;

Separate Oath or affirmation required if
 contesting elections both to the House of the
 People and to a State Legislative Assembly at
 a simultaneous election.

                                             7

Age qualification
                    [Article 173(b)]
A person shall not be qualified to be chosen to fill a seat
in the State Legislative Assembly, unless he is of 25
years of age.
Age qualification should be fulfilled by the candidate on
the date fixed for the scrutiny of nominations [section 36
(2) (a) of 1951-Act].

                                                          8

Statutory qualifications
                 [Article 173(c)]

Qualifications for election         to   a   State
Legislative Assembly (s 5) :
In the case of the constituencies reserved for
 SCs or STs, the candidate should be a member
 of any of those castes or tribes, and an elector
 for any Assembly Constituency in the State;

In the case of any other constituency in the
 State, candidate should be an elector for any
 Assembly Constituency in that State.

                                                     9

Constitutional Disqualifications
             [Article 191(1)]
Holding Office of profit under the Govt of
India or Govt of any State, other than an
office exempted under law.
Unsoundness of mind,
Un-discharged insolvent.
Non-citizenship of India or acknowledgement
of allegiance or adherence to a foreign State.
Any other disqualification prescribed by
Parliament.
                                             10

Office of profit under the Government
[Article 191(1)(a)]:
All questions whether a particular person is
 holding an office of profit under the
 government or not have to be decided by
 applying the following tests to the facts and
 circumstances of each case in the light of
 Supreme Court decision in Shivamurthy
 Swami Inamdar Vs. Agadi Sanganna
 Andanappa [(1971) 3 SCC 870] :-
  Whether     the    government    makes   the
    appointment;
  Whether the government has the right to
    remove or dismiss the holder;

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contd….
  Whether any remuneration is paid;

  Does the government exercise any control over
    the performance of those functions.

However, all State Legislatures have passed Acts
 removing disqualification in respect of certain
 offices mentioned therein under Art 191(1)(a).
Please refer to Bihar Legislature(Removal of
 Disqualifications) Act, 1950, as amended from
 time to time.

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Some other relevant judgments
In Satrucharla Chandrasekhar Raju v
Vyricherla Pradeep Kumar Dev (AIR 1992
SC 1959) it was held that power of Govt to
appoint a person to the office or power to
revoke the appointment at its discretion is
a test to decide if the office is an office
under the Govt for this purpose.

                                          13

More judgments
In Shibu Soren v Dayanand Sahay (AIR
2001 SC 2583), Supreme Court held, on
the point of „profit‟ that „profit‟ connotes
pecuniary gain. If there is some pecuniary
gainreceivable by the person other than
„compensation‟ to defray out-of-pocket
expenses (TA,DA, etc), that amounts to
„profit‟.

                                               14

Judgments….
In Bhagwati Prashad Dixit Ghorewala vs
Rajiv Gandhi (AIR 1986 SC 1534) it was
held that Members of Parliament and
State Legislatures are not holding office of
profit as they are elected as Members and
not appointed by Government.

                                           15

Office under loacal authority
In Guru Govinda Basu vs Shankari Prasad
Ghosal (AIR 1964 SC 254), Supreme
Court held that only holders of OOP under
the Central or State Govt are disqualified.
Holders of office under local authority are
NOT disqualified under the Constitution for
being chosen as members of Parliament
or State Legislature.

                                          16

Unsoundness of mind [Article 191
(1) (b)]:

A person is disqualified if he is of
 unsound mind and stands so declared
 by a competent court.

Mere allegation not sufficient – such
 person should be so declared by a
 competent court under the Indian
 Lunacy Act, 1912.

                                     17

Un-discharged insolvent [Article 191 (1)
(c)]:
A person adjudged insolvent by a competent
 insolvency court under the Provincial Insolvency
 Act, 1920 and has not been discharged from
 insolvency under the provision of that Act, is
 disqualified for contesting an election to State
 Legislature.

Mere commission of acts of insolvency not a
 ground for disqualification.

In Thampanoor Ravi vs Charupara Ravi (AIR
 1999 SC 3309) Supreme Court held that
 disqualification is incurred only when a competent
 Insolvency Court declares a person „insolvent‟.

                                                 18

Non-citizenship   of    India      or
acknowledgement of allegiance or
adherence to a foreign State [Article
191 (1) (d)]:
Citizenship of India a fundamental and
 essential qualification – additionally a
 person shall be disqualified for being
 chosen as, and also for being a Member of
 State Legislature if he is not a citizen of
 India, or has voluntarily acquired the
 citizenship of a foreign State or is under
 any acknowledgement of allegiance or
 adherence to a foreign State.

                                          19

Statutory disqualifications
             [Article 191 (1) (e)]
Parliament empowered to make statutory
laws    prescribing disqualifications for
membership for both Parliament and State
Legislatures :
– Disqualifications so prescribed by Parliament
  under Representation of the People Act,
  1951 are :
    Disqualification on conviction for certain offences
    (Section 8).
    Disqualification on ground of commission of
    corrupt practices (Section 8A).
                                                      20

Disqualification for dismissal from govt. service
for corruption or disloyalty (Section 9).

Disqualification for contract with “appropriate
government” (Section 9A).

Disqualification for holding office       under
government company (Section 10).

Disqualification for failure to lodge account of
election expenses (Section 10A).

                                               21

Disqualification on conviction for
       certain offences (s 8)
Offences inviting disqualification on conviction
specified in three categories mentioned in sub-
sections (1) to (3).
Conviction by Trial Court attracts disqualification;
Release on bail does not remove disqualification,
unless conviction is also stayed during pendency of
appeal;
Disqualfication arises only on conviction and not at
any prior stage.

                                                       22

Sectio 8…
For offences listed in sub-section (1), mere
conviction leads to disqualification, even if
there is no sentence of imprisonment.
For the tree offences listed in sub-section
(2), disqualification arises only in cases of
conviction and sentence of imprisonment
for a minimum period of six months.
For other offences, conviction with2 years‟
sentence leads to disqualification.
                                            23

Period of disqualification u/s 8
Period of disqualification is 6 years from
the date of conviction. In the event of
imprisonment, period would be the entire
period of imprisonment and a further
period of six years after release from jail.
After expiry of the above period, the
disqualification of ends.

                                               24

Disqualification on account of
       corrupt practices(s 8A)
Disqualification u/s 8A for corrupt practices
arises only on an order passed by the
President on the opinion tendered by the
Commission.
If there is any such case, the name(s) will be
circulayted from ECI. Only those persons are
disqualified whose list is circulated by ECI
from time to time.

                                            25

Disqualification for dismissal from
 government service for corruption
         or disloyalty (s 9)
A candidate dismissed from government
service within the last five years must
produce a certificate from ECI that he was
not dismissed for corruption or disloyalty;
Such certificate must be filed with the
nomination paper, otherwise nomination shall
be rejected [Section 33(3)].

                                           26

Disqualification for contract with
 appropriate government (s 9A)
Contract should be subsisting on the date of scrutiny
of nominations;
Contract should be with „appropriate government‟;
„Appropriate     government‟   means      Central
Government in the case of election to Parliament,
and State Government in the case of election to
State Legislature;
Contract should be either for supply of goods or for
execution of works.

                                                    27

Disqualification for holding office
under government company (s 10)
Only Secretary, Manager or Managing Agent
of government company is disqualified;
„Government company‟ means any company,
corporation, etc., in which appropriate
government has not less than 25% share;
„Appropriate Government‟ has same meaning
as explained above in the case of contract
with government.

                                         28

Disqualification for failure to
  lodge account of election
      expenses (s 10A)
Only those persons are disqualified whose
list is circulated by ECI from time to time.
Disqualification U/s 10A is for specific period
of 3 years.        Pl. go through the list of
disqualified persons in respect of your State
carefully.

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Thanks
    K.F. Wilfred

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