374 Election Laws, Practice and Procedure QUALIFICATIONS AND DISQUALIFICATIONS FOR MEMBERSHIP OF THE LEGISLATIVE bl ASSEMBLY OF THE UNION TERRITORY OF PUDUCHERRY 4 Qualifications 4 Disqualifcations INTRODUCTION Qualifications and Disqualifications, Two Different Concepts Any person aspiring to be a member of Parliament or of a state legislature in India, whether by election or by nomination, must be qualified, and must not be disqualified, under the Constitution or under any law for such membership. Qualifications are those positive attributes of a person which make him eligible to occupy @ Particular Position, post or public ofice. Disqualifications,pn the other hand, are those negative aspects ofa person which militate against his occupying such position, post or public office, despite his being qualified therefor. Under the Constitution, ‘qualifications’ and “disqualifications’ for membership of Parliament and state legislatures are two different concepts and ‘lack of qualification’ would not be tantamount to ‘disqualification’.! Therefore, the Constitution prescribes certain qualifications and also. certain disqualifications separately. The qualifications for membership of Parliament are Prescribed in art 84, whereas disqualifications for such membership are laid down in art 102. Likewise, art 173 prescribes the qualifications for membership of state legislatures and it is art 191 which lays down disqualifications therefor? However, striking a somewhat different note in Rajbala and Ors v State of Haryana and Ors and All India Democratic Women’s Association v State of Haryana,’ the Supreme Court has observed that: 39. The distinction between the expressions qualification and disqualification in the context of these four Articles is little intriguing, There is no cleat indication in any one of these four Articles or in any other part of the Constitution as to what is the legal distinction between those two expressions. In common parlance, it is understood that a qualification or disqualification is the existence or absence of 4 particular state of affairs, which tenders the achievement of a particular object 1. See Shyamdeo Pd Singh v Nawal Kishore Yadav AIR 2000 SC 3000; see also Election Commission's opinion dated 31 October 1981 to the President in Re Pranab Kumar Mukherjee, ‘opinion dated 19 November 1992 in Re Suraj Mandal and Ors, and opinion dated 24 June 2013 to the Governor of Madhya Pradesh in re Rajendra Saluja. 2 Qualifications and disqualifcations for membership of Jammu and Kashmir state legislature are separately prescribed in the Constitution of Jammu and Kashmir and in Part VI of the Jammu and Kashmir Representation ofthe People Act; 1957, Qualifications ad disqualifications for membership of the legislative assemblies of the National Capital Territory of Delhi and Union Territory of Pondicherry are also prescribed separately in the Government of National Capital ‘Territory of Delhi Act, 1991, and the Government of Union Territories, Act 1963, respectively. All these have been discussed separately in this chapter, 3 2016(3) SC) 328.Qualifications and Disqualificationsfor Membership of Parliament and State Legislatures 375 either possible or impossible. Though there are two sets of Articles purporting to stipulate qualifications and disqualifications, there is neither any logical pattern in these sets of Articles nor any other indications which enables discernment of the legal difference between the two expressions. We reach such a conclusion because citizenship of India is expressly made a condition precedent under Article 84 and 173 for membership of both Parliament and State Legislatures. Lack of citizenship is also expressly stipulated to be a disqualification for membership of either of the above mentioned bodies under Articles 102 and 191. In view of the stipulation under Articles 84 and 173 — citizenship is one of the requisite qualifications for contesting election to either Parliament or the State legislature, we do not see any reason nor is anything brought to our notice by learned counsel appearing on either side to again stipulate under the articles 102 and 191 and lack of citizenship renders a person disqualified from contesting elections to those bodies. Learned counsel appearing on their side are also unanimously of the same opinion. We are, therefore, of the opinion that the distinction between qualifications and disqualifications is purely semantic. The Supreme Court has further observed in Election Commission of India v Bajrang Bahadur Singh and Ors‘ that: 38...there are two classes of disqualification contemplated under Article 191 [and Article 102], (i). disqualifications which last only for a limited period, thar is, during the currency of certain events specified under Article 191 [and Article 102], (ii) statutory disqualifications prescribed under Section 8, Section 8A, Section 9 and Section 10A which render a person ineligible for a period specified under each of the above-mentioned provisions. The disqualifications under Sections 9A and 10 of the Act are akin to the disqualifications contemplated under clauses (a) to (d) of Article 191(1) where the period of disqualification is co-terminus with the currency of the event which renders a person ineligible, both for being chosen as or for being a Member of the Legislature. Nonetheless, ‘on the acquisition of the disqualification by a legislator, he ceases to bea legislator forthwith by operation of law. However, the cessation of the disqualifying factor cannot put such a person back in the legislature without his being elected once again; of course, such person is entitled to contest any election under the RR ‘Act, the moment the disqualifying factor ceases to exist as the disqualification is co-terminus with the disqualifying EVENT. “The Kerala High Court has also held that every disqualification has a definite tenure prescribed by law and there cannot be any life ban imposed against a person’ Th the context of the above observation of the Supreme Court in the case of Rajbala (Gupra); it is submitted, with dite respect, that there is an important distinguishing 4. AIR 2016 SC 2301; 2015(6) SC} 402; ILC-2015-SC-CIVIL-Apr-7. 5. Jobn Jobn v State Election Commission and Ors AIR 2015 Ker 227,e7s. Election Laws, Practice and Procedure Ad disqualficarons in that whereas the qualification, under arts 84 and 173 apply ‘being chosen as (thats 10 say. for Bes elesed or nominated as) a member of Parliament or of a state legis atures the cisqualifications “being chosen as’, and ‘for being’ (that is to under arts 102 and 191 apply both to ‘being ¢ ie aliecari say, for continuing as) such member. In other words, whereas the q a ications must be fulfilled at the time of contesting an election, or being nominated, as a member of Parliament or of a state legislature, the disqualifications have relevance both at the time of election or nomination and also thereafter at all times for Continuing as such member, if clected or nominated. Impliedly, even if an elected Oh nominated member loses the qualification which he fulfilled at the time of his election or nomination, hig membership of the House concerned is not affected, but if he becomes disqualified after his election or nomination, he will lose the membership of the House, as he wil] be disqualified ‘for being’ such member. For example, one of the essential qualifications for a candidate for clection to Parliament or a state legislature is that he must be q citizen of India. If after election, he ceases to be an Indian citizen on any ground under the Citizenship Act, 1955, he must vacate his seat in the House concerned and that is why loss of citizenship has been made specific disqualification under the Constitution, In the case of Rajendra Saluja, a member of the Madhya Pradesh legislative assembly, it was contended before the Governor of the state that Shri Saluja was not cligible to continue as a member of the assembly as he had contested and won the election from a constituency reserved for the scheduled castes and his scheduled castes certificate was subsequently cancelled by the state’ sereening committee. The Madhya Pradesh High Court had also upheld the decision of the screening committee. However, the Election Commission, on the matter being referred to it for its opinion by the Governor, opined that such question of loss of qualification could not be raised before the Governor under art 192(1), nor could it be enquired into by the Election Commission.§ In Jose Padickal v Ibrahim Sulaiman Sait and Ors,’ it was alleged that a member of the Kerala legislative assembly, by giving a call for boycott of the Republic Day celebrations, had violated the oath to bear true faith and allegiance to the Constitution, which he had taken to be qualified for election under art 173(a) and for taking a sea in the assembly under art 188, and ic was contended that he was no longer eligible to continue as. member of the state assembly. The Kerala High Court, however did not accept that contention, holding that the violation of oath taken at the time of becoming member did not constitute disqualification for continuing as a member after election and that the high court could not add new disqualification, Similarly, i was contended that Shri Pranab Kumar Mukherjee, who was elected to the Council of States from the State of West Bengal, had become disqualified to eontinue as a member of that Council on his name being deleted from the electoral sll in Wess Bengal, which was an essential qualification for election to the Council from that state, The Election Commission opined to the President that the deletion of his name from the electoral roll did not affect his continuance as member of the Council of feature between qualifications an 6 Opinion dated 24 June 2013 to the Governor of Madhya Pradesh in te Rajendh 7 Original Petition No 22 of 1987 before the Kerala High Court. in re Regeridra Saluje!Qualifications and Disqualifcationfor Membership of Parliament and State Legislatures 377 srates, as the lack of qualification did not amount to disqualification for continuing gs member of Parliament.* Likewise, Shri Murasoli Maran was also held to be not disqualified to continue as a member of the Council of States for allegedly inciting the burning of the Constitution by writing some provocative articles in the magazine Murasolie Another significance feature worth noticing in this behalf is that, apart from those qualifications and disqualifications which have been specifically laid down by the Constitution itself, itis only the Parliament which alone is empowered to prescribe any additional qualifications and disqualifications, not only for membership of Parliament but also for membership of state legislatures [arts 84(c), 102(1)(¢), 173(c) and 191(1) (Q)]. In Shrikant v Vasantrao,"° the Supreme Court held that ‘it is not possible to add to or subtract from the disqualifications, either on the ground of convenience, of on the grounds of equity or logic or perceived legislative intention’. As qualifications and disqualifications are two different and distinct concepts, every candidate is required to make a declaration in his nomination paper that he is qualified and not also disqualified for being chosen to fill the seat which he intends to contest [Forms 2A to 2E (Forms of Nomination Papers), 1961 Rules]. At the time of scrutiny of nomination papers, the returning officer also has to be satisfied that the candidate is qualified and is not disqualified for being chosen to fill the seat [s 36(2)(a), 1951 Act]. Crucial Date for Determining Qualifications and Disqualifications “The crucial date for determining whether a candidate is qualified and is not disqualified for contesting an election is not the date on which the candidate files his nomination paper but is the date fixed for the scrutiny of nominations on which the returning officer scrutinises his nomination paper (s 36(2)(a), ibid.]. In the earlier stages, there was some doubt and confusion on this issue. Section 32 of the 1951 Act provided, and still provides, that any person may be nominated as a candidate for election to fill a seat in Parliament or in a state legislature, if he is qualified to be chosen to fill such seat. One view was that the candidate should be qualified on the date on which his nomination paper is filed. The other view was that he should be qualified on the date onwhich the returning officer scrutinises his nomination paper. This ambiguity in law ‘was removed in 1961 by amending s 36(2)(a) of the 1951 Act by the Representation of the People (Amendment) Act, 1961, to expressly provide that the returning officer shall determine whether a candidate is qualified or disqualified, on the date fixed for the scrutiny of nominations. As such, the existence of qualifications and non-existence of disqualifications are to be enquired into by the returning officer with reference to the date of scrutiny of nominations."! For example, if candidate is below the prescribed 8 Election Commission's opinion dated 13 October 1981 in Re Pranab Kumar Mukherjee. 9) See the Election Commission's opinion dated 26 December 1988 to the President in Re Murasoli Maran. 10 2006(2) SCC 682. , M1 Padman Meher and Anr. v State of Orissa AIR 1981 SC 457; BR Kapoor v State of Tamil Nadu AIR 2001 SC 3435; (2001) 7 SCC 231. ICR p ei