Original Text of Article 102 of Indian Constitution:
(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament
- 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;
- if he is of unsound mind and stands so declared by a competent court;
- if he is an undischarged insolvent;
- 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;
- if he is so disqualified by or under any law made by Parliament.
Explanation.—For the purposes of this clause] a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State.
(2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.
Explanation of Article 102 of Indian Constitution:
The Article 102 of Indian Constitution has provided for the disqualification of members of Parliament in certain conditions:
- If the person is holding any office of profit under the central or state government (except for the office of minister or any other offices exempted by Parliament);
- If the person is not an Indian citizen, has voluntarily acquired the citizenship of a foreign state, or has declared his allegiance to a foreign state,
- If s/he is of unsound mind and declared so by a court.
- If s/he is a discharged solvent,
- If the person is disqualified under any law made by the Parliament.
In addition to the Constitution, the Representation of People Act 1951 provides additional grounds for disqualification:
- If the person has been found guilty of electoral offences and corrupt practices in elections;
- If the person is convicted of an offence resulting in imprisonment of more than 2 years. However, this provision does not apply in the case of preventive detention;
- If the person fails to declare accounts of his/her election expenditure,
- If the person has been convicted for promoting enmity between different groups or for the offence of bribery;
- If the person has been dismissed from government service on account of corruption or disloyalty towards state;
- If the person has been penalised for advocating or practising social evils such as Sati, dowry, untouchability;
- The person must not have any interest in government contracts and services; The person must not be a director or managing agent in a corporation in which the government has 25% or more stake.
If any question arises regarding the disqualification of members of the legislative assembly, the governor’s decision is final. The Governor makes the decision based on the opinion of the Election Commission, and that opinion is binding.
The Parliament has provided for the disqualification of representatives on the grounds of defection. These Provisions have been added to the 10th Schedule of the Constitution:
- If the person voluntarily gives up the membership of the party on whose symbol s/he has been elected to the House;
- If the person abstains from voting or votes against the directions of the party whip.’
- If any independent elected representative joins a political party,
- If any nominated representative joins a political party after the expiration of 6 months,
The disqualification under the 10th Schedule is adjudicated by the Speaker in the case of Lok Sabha and by the Chairman in the case of Rajya Sabha.
Detail Provisions of the Act:
- Grounds of disqualification of a member of a political party: A member of a House belonging to any political party will be disqualified if:
- If s/he voluntarily gives up the membership of such political party;
- If s/he votes or abstains from voting in conflict with the directions of the party without obtaining permission of such party and such voting or abstention has not been condoned by such political party.
- Grounds of disqualification of an independent member: If an independent member (not elected as a candidate of a political party) of a House joins any political party after his election, he is liable for disqualification under this law.
- Grounds of disqualification of an independent member: If a nominated member of a House joins a political party 6 months after s/he has taken his/he seat, then s/he is liable for disqualification on the grounds of defection. It means s/he can join any political party within 6 months of taking his seat without inviting disqualification.
Exceptions mentioned in the act
- In cases of Merger: A member of a House will not be disqualified if his/her original political party merges with another political party or a new political party is formed by such merger. [A merger takes place if 2/3rd of the members have agreed to such a merger].
- If a member is elected as presiding officer: If a member, after being elected as presiding officer of the House, voluntarily gives up the membership of the party and re-joins it after s/he ceases to hold the office, then it does not invite disqualification under the anti-defection act.
- 91st Constitutional Amendment Act (2003): Earlier, there was a provision in the Anti-defection Act that provided exemption from disqualification on account of split by one-third of members of the legislature party. This exemption was omitted by the Amendment Act.
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