Members of Parliament Disqualification

Members of Parliament Disqualification

Members of Parliament Disqualification

This article details the grounds on the basis of which Members of the Parliament can be disqualified and seats in the Parliament can be declared vacant.

Members of Parliament Disqualification

Article 101- deals with the vacation of seats and disqualification. The grounds for vacancies of seats in Parliament:

  • Completion of Tenure
  • Death
  • Resignation – By addressing the resignation letter to the presiding officer of the House
  • If a member of Parliament is appointed as governor of a state, his seat in Parliament will be deemed vacant from the day he enters the office of government
  • If a member is consistently absent for a period of 60 days without informing the presiding officer, then his seat in the house will be considered vacant.
  • If a person is elected as a member of both Lok Sabha and State Legislative Assembly then he has to resign from one of the seats within the time period specified by the President else his seat in Lok Sabha will be deemed vacant

Article 102 – deals with the Disqualification from membership

Article 102(1): The grounds for disqualification under this article are:

  • On acquiring citizenship of a foreign country
  • Office of profit
  • Unsound mind
  • On the basis of any law made by the Parliament


Article 102(2): deals with disqualification on grounds of defection

The word defection generally abandonment, desertation or running away from duty. Subash Kashyap defines defection as any change in political label and includes following cases –

  • when a member elected on a party ticket joins another party
  • when a member elected on a party ticket, resigns from it and remains independent
  • when an independent member, after being elected, joins a political party

Thus all cases of horse trading – carpet crossing [From ruling party to opposition party], floor crossing [from opposition party to ruling party] and line crossing [from one opposition party to another] for personal gains amount to political defection and it is listed as one of the grounds for disqualification of membership from the Central and State Legislature in the Constitution.

52nd Constitutional Amendment Act 1985, Anti- Defection Act

The Anti Defection Act 1985 aims to disqualify MLA’s and MP’s on the grounds of political defection. It amended Articles 101, 102, 190 and 191 of the constitution regarding vacation of seats and disqualification from membership of Parliament and State Legislatures and added a new schedule (Tenth Schedule) to the Constitution.

 The act provides for disqualification under the following grounds:

  • When an independent member of a house joins a political party.
  • When an elected member of a political party resigns from his party and joins another party
  • When a nominated member of a house joins a political party after 6 months of his nomination.
  • When an elected member of a political party abstains from voting or votes against party whip and his/her action is not condemned by his political party within 15 days of his action.

The act provides for the following exemptions under which a member cannot be disqualified:

  • If a nominated member joins a political party within 6 months from the date of his nomination.
  • If a party splits, not less than 1/3rd members of a legislative party break away and form a splinter group of the same political party.(This was repealed by the 91st CAA, 2003)
  • If a Speaker or Deputy Speaker of Lok Sabha, Speaker or a Deputy Speaker of Legislative Assembly, Deputy Speaker of Rajya Sabha or Chairman or Deputy Chairman of a State Legislative Council resigns from his political party upon being elected to that office and rejoins the same political party from which he originally resigned after relinquishing the office.
  • If not less than 2/3rd of the members of a legislative party breakaway from the parent party and form a new party or merge with another party

Other provisions of the Act

  • The authority to decide on the question of disqualification of a member is vested in the presiding officer of the house, this decision is final and binding (Para 6)
  • If the presiding officer becomes the subject for disqualification, then it shall be decided by a member elected by the house (Para 6)
  • The decision of presiding officer under the Act cannot be questioned in a Court of Law.

Consequences of disqualification under the Act

If a member is disqualified on the ground of Political Defection, then the seat represented by him/her is deemed vacant and the disqualified member can contest in re-elections. So the Act does not impose any ban from contesting polls nor punishment for defection.

Constitutional Validity of the Act

SC in Kihoto Hollohon vs Zachillu, 1993 upheld the Constitutional validity of the Act. However, it struck down Para 7 as unconstitutional and void as it took away the power of Judicial Review from the Courts. It further laid down the grounds on which the whip issued by a political party under Para2 (1) (b) of the act shall be binding on its party members. The grounds are

  • It is a motion of confidence or no-confidence.
  • Vote of thanks to President’s or Governor’s address.
  • It is on a matter which was a major policy and programme on which the political party to which the member belongs went to the polls.
  • It is on a matter which was an integral policy and programme of the political party on the basis of which it approached the electorate.
  • It is likely to bring about a change in the Government
  • It is likely to prevent a change in the Government.

Reforms to the Act

The 91st Constitutional Amendment Act 2003, introduced the following reforms –

  • It removed Para 3 relating to 1/3rd rule leading to formation of a splinter group of a party.
  • It added 75(1A) and 164(1A) under which the strength of the Council of Ministers at the Union and State has been fixed at not more than 15% of the total strength Lok Sabha and 15% of total Strength of State Legislative Assemblies subject to a minimum of 12 ministers at state level.
  • It added 75(1B) and 164(1B) under which an MP or MLA who has been disqualified under the Anti-Deflection Act shall be ineligible to hold any office of profit under state for the rest of the duration of the house or the rest of his tenure or till he is re-elected to the house, whichever is earlier.

Art 103 – deals with decision on disqualification of members. It states that:

  • If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of Article 102, the question shall be referred for the decision of the President who will consult the Central Election Commission. The decision of the President shall be final



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