Qualifications and Disqualifications of Candidates Seeking Election and of Sitting Elected Members of Parliament and State Legislatures

5/9/24, 12:35 AM Law Relating To Elections - Chapter 4 - Qualifications and Disqualifications of Candidates Seeking Election And Of Sitting Ele…
CHAPTER 4
Qualifications and Disqualifications of Candidates seeking Election and of Sitting Elected

Members of Parliament And state legislatures
Introduction
Qualification is an eligibility to occupy certain position or post in any office; therefore, it is a

positive attribute of a person in order to get a particular place or position. Disqualification, on the
other hand, puts a bar to a person to occupy any position or post, in spite of having certain
qualifications for that post or position, hence, it is a negative attribute of a person. For the
membership in Parliament or in the State Legislatures, whether by election or nomination, any
person must be qualified and must not be disqualified, under the Constitution or any other law in
order to get such membership. Election Commission opined that, under the Constitution,
‘qualifications’ and ‘disqualifications’ for membership of Parliament and State legislatures are two
different concepts and lack of qualification would not tantamount to ‘disqualification’. Therefore, the
Constitution of India provides ‘qualifications’ and ‘disqualifications’ separately. The qualifications for
membership of Parliament and State Legislatures are provided in Article 84 and Article 173
respectively. Likewise, the disqualifications are laid down in Article 102 and Article 191 for
Parliament and State Legislatures respectively.
The most important distinguishing feature between qualifications and disqualifications is that
whereas the qualifications under Articles 84 and 173 apply to ‘being chosen as’ the disqualifications
under Articles 102 and 191 apply both to ‘being chosen as’, and ‘for being’ such member. In Jose
Padickal v. Ibrahim Sulaiman Sait,1 it was contended 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
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1. Original Petition No. 22 of 1987 before the Kerala High Court.
to the Constitution, which he had taken to be qualified for election under Article 173(a) and for
taking a seat in the Assembly under Article 188, and it was also contended that he was no longer
eligible to continue as a member of the State Assembly. The Kerala High Court, however, rejected
the contention and held 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. The Election Commission opined to the President in the matter of
disqualifications of Pranab Kumar Mukherjee as his name was deleted from the electoral roll, that
the deletion of his name from the electoral roll did not affect his continuance as member of the
Council of States, as the lack of qualification did not amount to disqualification for continuing as
member of Parliament.
In Articles 84, 102, 173 and 191, it is specifically mentioned that Parliament alone is empowered to
prescribe any additional qualifications and disqualifications, for the membership of Parliament as
well as for State Legislatures.
As discussed above, qualifications and disqualifications are two different concepts, therefore, every
candidate is required to make a declaration in the form of nomination paper that he is qualified to
contest the election and not disqualified as such. Section 39(2)(a) of the Representation of the
student.manupatra.com/Academic/Abk/Law-Relating-To-Elections/chapter4.htm 1/34
People Act, 1951 provides that, 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.
Discuss the qualifications for membership of Parliament and State Legislatures?
Qualification for Membership of Parliament and State Legislatures
The qualifications for the membership of Parliament and State Legislatures are provided by the
Constitution of India and supplemented by enacted law of Parliament.
Article 84 of the Constitution has laid down the qualifications for membership of Parliament as:
(a) Citizen of India;
(b) Not less than 30 years of age for the Council of State and in case of the House of the
People, not less than 25 years of age; and
(c) Possesses such other qualifications as may be prescribed by or under any law made by
Parliament.
According to Article 173 of the Constitution, the qualification for membership of the State
Legislature is:
(a) Citizen of India;
(b) Not less than 25 years of age for Legislative Assembly and not less than 30 years of age
for the Legislative Council; and
(c) Possesses such other qualifications as may be prescribed by or under any law made by
Parliament.
Sine qua non Qualifications
(i) Person must be a Citizen of India
Articles 84(a) and 173(a) provide that, a person shall not be qualified to be chosen to fill a seat in
Parliament and State Legislatures, if he is not a citizen of India. Whereas, Articles 102(1)(d) and
191(1)(d) says that, a person shall be disqualified for being chosen as a member of either House of
Parliament or State Legislatures, if he is not a citizen of India.
Citizenship of India is governed by the Constitution of India as well as the enacted law made by the
Parliament. Part II of the Constitution is exclusively devoted to the citizenship.
Constitutional Provisions for CiTizenship
Article Provisions Notes, if any
5. On 26 January, 1950 every person who has The expression ‘Every Person’
his domicile in the territory of India and— includes—
(a) who was born in the territory of (a) a prisoner;
India; or
(b) either of whose parents was born (b) a member of the armed
in the territory of India; or forces
(c) who has been ordinarily resident (subject to the power of
in the territory of India for less Parliament to modify the
than five years, shall be a citizen rights as in Article 33)
of India immediately preceding
such commencement.
6. Rights of citizenship of certain persons
who have migrated to India from
Pakistan
7. Rights of citizenship of certain migrants
to Pakistan
8. Rights of citizenship of certain persons
of Indian origin residing outside India
9. Person voluntarily acquiring citizenship
of a foreign State, he shall not be a
citizen of India
10. Every person who is a citizen of India
under any provisions of this Part, subject
to the provisions made by Parliament,
will continue to be such citizen
11. Parliament has power to make any
provision with respect to the acquisition
and termination of citizenship and all
other matters relating to citizenship
(ii) Oath or Affirmation
Discuss the qualification for contesting candidate relating to the concept of "oath and
affirmation'.
According to Articles 84(a) and 173(a), every person to be qualified to contest an election to
Parliament or a State Legislature 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 Constitution.
Prior to 1963, no candidate was required to make or subscribe an oath or affirmation, but, was
prescribed with the Constitution (Sixteenth Amendment) Act, 1963, on the recommendation of the
Committee on National Integration and Regionalism that ‘every candidate for the membership of a
State Legislature or Parliament, and every aspirant to, and incumbent of, public office should
pledge himself to uphold the Constitution and preserve the integrity and sovereignty of the Union’.
In V.R. Sutaria v. N.P. Bhanvadia,1 the Supreme Court observed that, real purpose of the oath is
that the person concerned must give an undertaking to bear true faith and allegiance to the
Constitution and uphold the sovereignty and integrity of India.
Likewise, in P.N. Singh v. H.P. Singh,2 the Apex Court found that, the requirement of making and
subscribing the oath or affirmation by a candidate is mandatory. The failure to make the oath or
affirmation will render the nomination paper of the candidate liable to rejection. At the time of the
first election of the House of the People from Sikkim in 1977, after it became part of the Indian
union, the nomination papers of all the candidates except one, were rejected as they had failed to
make and subscribe the requisite oath or affirmation. The only candidate who had made the oath
was declared elected unopposed.
In Aad Lal v. Kanshi Ram,3 in the form of oath submitted by a candidate the expressions ‘swear in
the name of God’ and ‘solemnly affirm’ were both there and the one or the other alternative was
not struck off. But the endorsement made on the form by the returning officer, before whom the
oath was taken made it clear that the candidate had made and subscribed the oath in the name of
God and that the words ‘solemnly affirm’ were not scored out in the form due to rush of work. But
these words were scored out in the certificate issued by him to the candidate immediately after he
had taken the oath. The Supreme Court held that in the circumstances, the candidate had made
and subscribed a valid oath at the time of filing his nomination paper. In V.R. Sutaria v. N.P.
Bhanvadia, a candidate to contest election for Gujarat Legislative Assembly took oath in Gujarati
and in the Gujarati form, the words Legislative Assembly were translated as ‘Rajya Sabha’. The
issue before the Supreme Court was whether the oath in such wrong form was validly taken. The
Supreme Court held that there was substantial compliance with the requirements of Article 173(a)
in the circumstances surrounding the making and subscribing of the oath, even if its compliance
was not literal, as the vital requirements of taking the oath were met.
Oath or Affirmation to be made before Whom?
Oath & affirmation to be made before whom?
When oath or affirmation to be made?
Articles 84(a) and 173(a) provide that, the requisite oath or affirmation under the Constitution is to
be made and subscribed by the candidates before some person authorised in that behalf by the
Election Commission.
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1. MANU/SC/0033/1968 : AIR 1970 SC 765.
2. MANU/SC/0108/1968 : AIR 1968 SC 1064.
3. MANU/SC/0344/1979 : AIR 1980 SC 1358.
Through the Notification of March, 1968, the Election Commission has authorised several persons
in this behalf, and principally, the oath or affirmation may be made and subscribed before the
returning officer or any of the assistant returning officers of the constituency from which the
candidate is seeking election. In addition, all Stipendiary Magistrates of the first class, district
Judges and persons belonging to the judicial service of a State are also so authorised. If, for any
reason, a candidate cannot appear before any of the aforesaid persons for making and subscribing
the oath or affirmation, the following persons have also been authorised by the Election
Commission in this behalf:
(a) where the candidate is confined in prison, the superintendent of the prison;
(b) where the candidate is under preventive detention, the commandant of the detention
camp;
(c) where the candidate is confined to bed in a hospital or elsewhere owing to illness or any
other cause, the medical superintendent in charge of the hospital or the medical practitioner
attending on him;
(d) where the candidate is out of India, the diplomatic or consular representative of India in
the country where the candidate happens to be or any person authorised by such diplomatic
or consular representative;
(e) where the candidate is for any other reason unable to appear or prevented from
appearing before the returning officer concerned or any assistant returning officer as
aforesaid, any other person nominated by the Election Commission on application made to
it in this behalf.
In P.N. Vallarasu v. M.G. Ramachandran,1 the issue was whether a person covered by any of the
clauses (a) to (e) above must make and subscribe the oath before the person referred to in that
very clause or he could do so before any other authorised person also. In that case, Shri M.G.
Ramachandran, the then Chief Minister of the State of Tamil Nadu, was undergoing treatment in
Brooklyn Hospital in New York in the United States of America, and he was a candidate for election
to the Tamil Nadu Legislative Assembly from Andipatti Assembly Constituency. The secretary of his
political party made a request to the Election Commission to authorise a person before whom Shri
Ramachandran could make and subscribe the oath or affirmation. The Election Commission
thereupon issued a telex message to the Ambassador of India and the Consulate General of India
in New York, instructing them that they may authorise one of the Indian medical practitioners
attending on Shri Ramachandran to administer the oath or affirmation to him. But, instead, Shri
Ramachandran made and subscribed the affirmation before the consular agent of the Consulate
General of India, New York. It was contended that the affirmation was not valid, as he should have
made such affirmation before the
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1. 83 ELR 378.
medical practitioner attending on him in terms of Clause (c) above and the Election Commission’s
above referred telex message. The Madras High Court did not agree with that contention and held
that the oath or affirmation could be made before any of the persons authorised by the Election
Commission, including the diplomatic or consular representative of India or any person authorised
by such diplomatic or consular representative where a candidate happened to be out of India, and
that the various Clauses (a) to (e) were not mutually exclusive.
When oath or affirmation to be made? Since, the time of oath or affirmation has not been
prescribed by the Constitution, the confusion prevailed initially. But, the pronouncements of the
Supreme Court have removed the doubt in this regard.
In Pashupati Nath Singh v. Harihar Prasad Singh,1 the Supreme Court held that the words ‘having
been nominated’ in the prescribed form of oath or affirmation clearly show that such oath or
affirmation cannot be made by a candidate before he is nominated and thus it has to be made and
subscribed after he has been nominated. In Pashupati Nath Singh’s case, the Apex Court held that
a candidate should be qualified and not disqualified from the earliest moment of the day on which
the scrutiny of nomination papers is taken up by the Returning Officer. Thus, the requisite oath or
affirmation so as to be qualified to contest an election must be taken latest by the midnight of the
date preceding the commencement of the date of scrutiny of nominations at that midnight hour. In
Haji Saif-ud-din v. M.A. Khan,2 Jammu and Kashmir High Court held the decision of the Returning
Officer in not allowing a candidate to take oath on the date of scrutiny of nominations but before he
commenced scrutiny, and consequently rejecting his nomination invalid.
Therefore, every candidate should be careful to make and subscribe the oath or affirmation only
after and not before his nomination paper has been presented to the Returning Officer, but well
before the commencement of the date of scrutiny of nominations.
In case of a candidate contesting from more than one parliamentary or assembly constituencies,
making and subscribing of the oath or affirmation in one such constituency is sufficient and he does
not have to make or subscribe the oath or affirmation in other constituencies from where he is
contesting.
In Khader Khan Hussain Khan v. Nijalingappa,3 the Supreme Court held that once the requisite
oath or affirmation is made and subscribed by a candidate in respect of one nomination paper, the
necessary qualification under the Constitution is obtained by him and that removes the bar laid
down in Article 84(a) or, as the case may be, in Article 173(a) in respect of all the constituencies
from where he is contesting elections.
However, where a candidate is contesting elections to both the Houses of the People and to the
State Legislative, in such a case, that candidate shall have
________________________
1. MANU/SC/0108/1968 : AIR 1968 SC 1064.
2. 40 ELR 35.
3. MANU/SC/0264/1969 : AIR 1969 SC 1034.
to make and subscribe separate oaths or affirmations, since the oaths or affirmations for elections
to the Parliament and State Legislatures are made under separate provisions of the Constitution.
Discuss the manner to make or subscribe oath or affirmation.
Manner to Make or Subscribe Oath or Affirmation
Under Articles 84(a) and 173(a) every candidate should make and subscribe oath or affirmation.
But, administration of oath or affirmation is not necessary under these articles, when a candidate
makes and subscribe it. In G. Vasantha Pali V. C.K. Ramaswamy,1 Madras High Court held that, the
words ‘maker’ and ‘subscribe’ in these articles indicate that the declaration of the oath or
affirmation shall be reduced in writing and signed in token of acceptance of the same. The word
‘subscribe, itself means to write under something or to give consent to something written by
signing one’s name underneath.
In A.S.B.M. Singh v. Rajiv Gandhi,2 it was held that, the oath or affirmation will not be invalid for
the reason that while the candidate made it, the returning officer was sitting and not standing.
Articles 84(a) and 173(a) do not require the returning officer to be in a particular position (sitting
or standing) at the time of making the oath or affirmation by the candidate. It will be the
responsibility of the candidate himself to ensure that the original form of oath or affirmation is
produced before the Returning Officer concerned before the time fixed for the scrutiny of
nomination papers. Where, however, the candidate is confined in a prison or detention camp, it is
the responsibility of the Superintendent or Commandant of such prison or camp to forward the
original form to the Returning Officer of the concerned constituency and also to inform him
telegraphically or otherwise of the fact of the candidate having made and subscribed the oath or
affirmation on the particular date and hour.
The Election Commission has instructed that the mere signing on the paper on which the form of
oath or affirmation is written is not sufficient. The authorised person before whom the oath or
affirmation is made and subscribed should ask the candidate to read it loudly and then to sign and
put the date on the paper. If the candidate is illiterate or unable to read the form, the authorised
person should read out the oath or affirmation, and ask the candidate to repeat the same and
thereafter take his thumb impression on the form.
Penalty for Sitting and Voting before Making Oath or Affirmation
According to Article 193, if a person sits or votes as a member of the Legislative Assembly or the
Legislative Council of a State before he has complied with the requirements of Article 188, (which
provides that every member before taking his seat, make and subscribe before the Governor, or
some person appointed by him, an oath or affirmation as prescribed in Third Schedule) he is
prohibited from so doing by the provisions of any law made by Parliament or the Legislature of the
State and he shall be liable in respect of each
_________________________
1. MANU/TN/0238/1978 : AIR 1978 Mad 342.
2. MANU/UP/0030/1991 : AIR 1991 All 145.
day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due
to the State.
Discuss briefly the disqualification on the ground of `age' with the help of decided cases.
(iii) Qualifying Age
According to Article 84(b) and 173(b), a person shall not be qualified to be chosen to fill a seat, if
he does not attain minimum age prescribed below:
For Parliament:
To fill a seat in Minimum age of the candidate
Council of States 30 years
House of the People 25 years
For State Legislatures:
To fill a seat in Minimum age of the candidate
Legislative Council 30 years
Legislative Assembly 25 years
In A. Ambalal v. H. Gomanbhai,1 the Apex Court held that, if a candidate has not attained the
minimum qualifying age on the date of scrutiny of nominations, his election shall be void even if he
has completed the qualifying age on the date of his election, as his nomination paper shall be
deemed to have been improperly accepted.
In case a candidate does not mention his age in nomination paper, his nomination paper shall be
rejected. In B.L. Gupta v. Jwala Prasad,2 the Supreme Court held that every candidate must
indicate his age in the column meant for the purpose in the nomination paper. Failure to do so will
be a defect of substantial character and the nomination paper shall be liable to rejection on this
ground. During the general election in 1984 to the House of the People, Ch. Charan Singh, failed to
mention his age in his nomination paper, though there was no doubt about his fulfilling the required
age for qualification his nomination paper was rejected.
In M. Nayak v. SDO, Jaipur,3 the Court held that, normally, the age of a candidate as shown in the
electoral roll may be accepted as his correct age by the Returning Officer. But such entry in the
electoral roll is not conclusive, particularly where a doubt or objection is raised that the candidate is
below the minimum qualifying age. In such a case, the burden of proof will lie initially on the
objector to prove that the candidate is below age, and it will shift on the candidate if some prima
facie evidence is led by the objector. In Biran Mal Singhvi v. Anand Purohit,4 the Supreme Court
observed that copies of extracts of school register, certificate and mark list of secondary education
board were produced, but no person conversant with the date of birth of the candidate was
examined.
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1. MANU/SC/0345/1968 : AIR 1968 SC 1455.
2. MANU/SC/0193/1960 : AIR 1960 SC 1049.
3. MANU/OR/0072/1982 : AIR 1982 Ori 221.
4. MANU/SC/0052/1988 : AIR 1988 SC 1796
The rejection of the nomination in that case based on the documents produced, showing that the
candidate was below 25 years of age was held valid.
Extracts from the Representation of the People Act, 1951
Section 3. Qualification for Membership of the Council of States
A person shall not be qualified to be chosen as a representative of any State or Union territory in
the Council of States unless he is an elector for a Parliamentary constituency in that State or
territory.
Section 4. Qualifications for Membership of the House of the People
A person shall not be qualified to be chosen to fill a seat in the House of the People, unless—
(a) in the case of a seat reserved for the Scheduled Castes in any State, he is a member of
any of the Scheduled Castes,
whether of that State or of any other State, and is an elector for any Parliamentary
constituency;
(b) in the case of a seat reserved for the Scheduled Tribes in any State (other than those in
the autonomous districts of Assam), he is a member of any of the Scheduled Tribes,
whether of that State or of any other State (excluding the tribal areas of Assam), and is an
elector for any Parliamentary constituency;
(c) in the case of a seat reserved for the Scheduled Tribes in the autonomous districts of
Assam, he is a member of any of those Scheduled Tribes and is an elector for the
Parliamentary constituency in which such seat is reserved or for any other Parliamentary
constituency comprising any such autonomous district.
(cc) in the case of the seat reserved for the Scheduled Tribes in the Union territory of
Lakshadweep, he is a member of any of those Scheduled Tribes and is an elector for the
Parliamentary constituency of that Union territory;
(ccc) in the case of any other seat allotted to the State of Sikkim, he is an elector for the
Parliamentary constituency for Sikkim;
(d) in the case of any other seat, he is an elector for any Parliamentary constituency.
Section 5. Qualifications for Membership of a Legislative Assembly
A person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State
unless—
(a) in the case of a seat reserved for the Scheduled Castes or for the Scheduled Tribes of
that State, he is a member of any of those castes or of those tribes, as the case may be,
and is an elector for any Assembly constituency in that State;
(b) in the case of a seat reserved for an autonomous district of Assam, he is a member of a
Scheduled Tribe of any autonomous district and is an elector for the Assembly constituency
in which such seat or any other seat is reserved for that district; and
(c) in the case of any other seat, he is an elector for any Assembly constituency in that
State:
Provided that for the period referred to in clause (2) of Article 371A, a person shall not be
qualified to be chosen to fill any seat allocated to the Tuensang district in the Legislative
Assembly of Nagaland unless he is a member of the regional council referred to in that
article.
Section 5A. Qualifications for Membership of Legislative Assembly of Sikkim
(1) Notwithstanding anything contained in Section 5, a person shall not be qualified to be chosen to
fill a seat in the Legislative Assembly of Sikkim (deemed to be the Legislative Assembly of that
State duly constituted under the Constitution) unless—
(a) in the case of a seat reserved for Sikkimese of Bhutia-Lepcha origin, he is a person
either of Bhutia or Lepcha origin and is an elector for any Assembly constituency in the
State other than the constituency reserved for the Sanghas;
(b) in the case of a seat reserved for Sikkimese of Nepali origin, he is a person of Nepali
origin and is an elector for any Assembly constituency in the State;
(c) in the case of a seat reserved for Scheduled Castes, he is a member of any of the castes
specified in the Representation of Sikkim Subjects Act, 1974 and is an elector for any
Assembly constituency in the State; and
(d) in the case of a seat reserved for Sanghas, he is an elector of the Sangha constituency.
(2) Notwithstanding anything contained in Section 5, a person shall not be qualified to be chosen to
fill a seat in the Legislative Assembly of the State of Sikkim, to be constituted at any time after the
commencement to the Representation of the People (Amendment) Act, 1980 (8 of 1980), unless—
(a) in the case of a seat reserved for Sikkimese of Bhutia-Lepcha origin, he is a person
either of Bhutia or Lepcha origin and is an elector for any Assembly constituency in the
State other than the constituency reserved for the Sanghas;
(b) in the case of a seat reserved for Scheduled Castes, he is a member of any of those
castes in the State of Sikkim and is an elector for any Assembly constituency in the State;
(c) in the case of a seat reserved for Sanghas, he is an elector for the Sangha constituency;
and
(d) in the case of any other seat, he is an elector for any Assembly constituency in the
State.
Explanation.—In this sub-section “Bhutia” includes Chumbipa, Dopthapa, Dukpa, Kagatey,

Sherpa, Tibetan, Tromopa and Yolmo.
Section 6. Qualifications for Membership of a Legislative Council
(1) A person shall not be qualified to be chosen to fill a seat in the Legislative Council of a State to
be filled by election unless he is an elector for any Assembly constituency in that State.
(2) A person shall not be qualified to be chosen to fill a seat in the Legislative Council of a State to
be filled by nomination by the Governor unless he is ordinarily resident in the State.
Section 7. Disqualifications for Membership of Parliament and State Legislatures
According to Section 7(b), “disqualified” means disqualified for being chosen as, and for being a
member of either House of Parliament or of the Legislative Assembly or Legislative Council of a
State.
Section 8. Disqualification on Conviction for Certain Offences
(1) A person convicted of an offence punishable under—
(a) Section 153A (offence of promoting enmity between different groups on ground of
religion, race, place of birth, residence, language, etc., and doing acts prejudicial to
maintenance of harmony) or Section 171E (offence of bribery) or Section 171F (offence of
undue influence or personation at an election) or sub-section (1) or sub-section (2) of
Section 376 or Section 376A or Section 376B or Section 376C or Section 376D (offences
relating to rape) or Section 498A (offence of cruelty towards a woman by husband or
relative of a husband) or sub-section (2) or sub-section (3) of Section 505 (offence of
making statement creating or promoting enmity, hatred or ill-will between classes or
offence relating to such statement in any place of worship or in any Assembly engaged in
the performance of religious worship or religious ceremonies) of the Indian Penal Code (45
of 1860); or
(b) the Protection of Civil Rights Act, 1955 (22 of 1955), which provides for punishment for
the preaching and practice of “untouchability”, and for the enforcement of any disability
arising therefrom; or
(c) Section 11 (offence of importing or exporting prohibited goods) of the Customs Act,
1962 (52 of 1962); or
(d) Sections 10 to 12 (offence of being a member of an association declared unlawful,

offence relating to dealing with funds of an unlawful association or offence relating to
contravention of an order made in respect of a notified place) of the Unlawful Activities
(Prevention)
Act, 1967 (37 of 1967); or
(e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or
(f) the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or
(g) Section 3 (offence of committing terrorist acts) or Section 4 (offence of committing

disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of
1987); or
(h) Section 7 (offence of contravention of the provisions of Sections 3 to 6) of the Religious

Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or
(i) Section 125 (offence of promoting enmity between classes in connection with the
election) or Section 135 (offence of removal of ballot papers from polling stations) or
Section 135A (offence of booth capturing) or clause (a) of sub-section (2) of Section 136
(offence of fraudulently defacing or fraudulently destroying any nomination paper) of this
Act, or
(j) Section 6 (offence of conversion of a place of worship) of the Place of Worship (Special
Provisions) Act, 1991; or
(k) Section 2 (offence of insulting the Indian National Flag or the Constitution of India) or
Section 3 (offence of preventing singing of National Anthem) or the Prevention of Insults to
National Honour Act, 1971;
shall be disqualified for a period of six years from the date of such conviction.
(2) A person convicted for the contravention of—
(a) any law providing for the prevention of hoarding or profiteering; or
(b) any law relating to the adulteration of food or drugs; or
(c) any provisions of the Dowry Prohibition Act, 1961 (28 of 1961); or
(d) any provisions of the Commission of Sati (Prevention) Act, 1987 (3 of 1988);
and sentenced to imprisonment for not less than six months, shall be disqualified from the
date of such conviction and shall continue to be disqualified for a further period of six years
since his release.
(3) A person convicted of any offence and sentenced to imprisonment for not less than two years
[other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from
the date of such conviction and shall continue to be disqualified for a further period of six years
since his release.]
(4) Notwithstanding anything in sub-section (1), sub-section (2) and sub-section (3) a
disqualification under either sub-section shall not, in the case of a person who on the date of the
conviction is a member of Parliament or the Legislature of a State, take effect until three months
have elapsed from that date or, if within that period an appeal or application for revision is brought
in respect of the conviction or the sentence, until that appeal or application is disposed of by the
court.
Explanation.—In this section—
(a) “law providing for the prevention of hoarding or profiteering” means any law, or
any order, rule or notification having the force of law, providing for—
(i) the regulation of production or manufacture of any essential

commodity;
(ii) the control of price at which any essential commodity may be

brought or sold;
(iii) the regulation of acquisition, possession, storage, transport,

distribution, disposal, use or consumption of any essential
commodity;
(iv) the prohibition of the withholding from sale of any essential

commodity ordinarily kept for sale;
(b) “drug” has the meaning assigned to it in the Drugs and Cosmetics Act, 1940 (23
of 1940);
(c) “essential commodity” has the meaning assigned to it in the Essential

Commodities Act, 1955 (10 of 1955);
(d) “food” has the meaning assigned to it in the Prevention of Food Adulteration Act,
1954 (37 of 1954).
Section 8A. Disqualification on Ground of Corrupt Practices
(1) The case of every person found guilty of a corrupt practice by an order under Section 99 shall
be submitted, as soon as may be after such order takes effect, by such authority as the Central
Government may specify in this behalf, to the President for determination of the question as to
whether such person shall be disqualified and if so, for what period:
Provided that the period for which any person may be disqualified under this sub-section shall in no
case exceed six years from the date on which the order made in relation to him under Section 99
takes effect.
(2) Any person who stands disqualified under Section 8A of this Act as it stood immediately before
the commencement of the Election Laws (Amendment) Act, 1975 (40 of 1975), may, if the period
of such disqualification has not expired, submit a petition to the President for the removal of such
disqualification for the unexpired portion of the said period.
(3) Before giving his decision on any question mentioned in sub-section (1) or on any petition
submitted under sub-section (2), the President shall obtain the opinion of the Election Commission
on such question or petition and shall act according to such opinion.
Section 9. Disqualification for Dismissal for Corruption or Disloyalty
(1) A person who having held an office under the Government of India or under the Government of
any State has been dismissed for corruption or for disloyalty to the State shall be disqualified for a
period of five years from the date of such dismissal.
(2) For the purposes of sub-section (1), a certificate issued by the Election Commission to the
effect that a person having held office under the Government of India or under the Government of
a State, has or has not been dismissed for corruption or for disloyalty to the State shall be
conclusive proof of that fact:
Provided that no certificate to the effect that a person has been dismissed for corruption or
for disloyalty to the State shall be issued unless an opportunity of being heard has been
given to the said person.
Section 9A. Disqualification for Government Contracts, etc.
A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in
the course of his trade or business with the appropriate Government for the supply of goods to, or
for the execution of any works undertaken by that Government.
Explanation.—
For the purposes of this section, where a contract has been fully performed by the
person by whom it has been entered into with the appropriate Government, the
contract shall be deemed not to subsist by reason only of the fact that the
Government has not performed its part of the contract either wholly or in part.
Section 10. Disqualification for Office under Government Company
A person shall be disqualified if, and for so long as, he is a managing agent, manager or secretary
of any company or corporation (other than a co-operative society) in the capital of which the
appropriate Government has not less than twenty-five per cent share.
Section 10A. Disqualification for Failure to Lodge Account of Election Expenses
If the Election Commission is satisfied that a person—
(a) has failed to lodge an account of election expenses, within the time and in the manner
required by or under this Act, and
(b) has no good reason or justification for the failure,
the Election Commission shall, by order published in the Official Gazette, declare him to be
disqualified and any such person shall be disqualified for a period of three years from the
date of the order.
Section 11. Removal or Reduction of Period of Disqualification
The Election Commission may, for reasons to be recorded, remove any disqualification under this
Chapter (except under Section 8A) or reduce the period of any such disqualification.
According to Article 101 of the Constitution, if a member of either House of Parliament becomes
either member of both Houses of Parliament or becomes member of both Parliament and State
Legislature, he shall have to resign from one membership.
Article 102(1) provides disqualification for a person for being chosen as member of either House of
Parliament, if—
(a) he holds any office of profit;
(b) he is of unsound mind;
(c) he is undischarged insolvent;
(d) he is not a citizen of India;
(e) he is so disqualified by or under any law made by Parliament.
Article 102(2) says that a person shall be disqualified for being a member of either House of
Parliament if he is so disqualified under the Tenth Schedule.
The Tenth Schedule has been given below:
Tenth Schedule
[Articles 102(2) and 191(2)]
“The Tenth Schedule does not, in providing for an additional grant for disqualification and for
adjudication of dispute disqualifications, seek to create a non-judicial constitutional area. The
power to resolve such disputes vested in the Speaker or Chairman a judicial power”—Supreme
Court.
Provisions as to Disqualification on Ground of Defection
Para 2. Disqualification on Ground of Defection.—
(1) Subject to the provisions of paragraphs 4 and 5, a member of a House belonging to any
political party shall be disqualified for being a member of the House—
(a) if he has voluntarily gives up his membership of such political party; or
(b) if he votes or abstains from voting in such House contrary to any direction issued
by the political party to which he belongs or by any person or authority authorised
by it in this behalf, without obtaining, in either case, the prior permission of such
political party, person or authority and such voting or abstention has not been
condoned by such political party, person or authority within fifteen days from the
date of such voting or abstention.
Explanation.—For the purposes of this sub-paragraph,—
(a) an elected member of a House shall be deemed to belong to the political

party, if any, by which he was set up as a candidate for election as such
member;
(b) a nominated member of a House shall,—
(i) where he is a member of any political party on the date of his

nomination as such member, be deemed to belong to such political
party;
(ii) in any other case, be deemed to belong to the political party of

which he becomes, or, as the case may be, first becomes, a member
before the expiry of six months from the date on which he takes his
seat after complying with the requirements of Article 99 or, as the
case may be, Article 188.
(2) An elected member of a House who has been elected as such otherwise than as a
candidate set up by any political party shall be disqualified for being a member of the House
if he joins any political party after such election.
(3) A nominated member of a House shall be disqualified for being a member of the House
if he joins any political party after the expiry of six months from the date on which he takes
his seat after complying with the requirements of Article 99 or, as the case may be, Article
188.
(4) Notwithstanding anything contained in the foregoing provisions of this paragraph, a

person who, on the commencement of the Constitution (Fifty-second Amendment) Act,
1985, is a member of a House (whether elected or nominated as such ) shall,—
(i) where he was a member of political party immediately before such

commencement, be deemed, for the purposes of sub-paragraph (1) of this
paragraph, to have been elected as a member of such House as a candidate set up
by such political party;
(ii) in any other case, be deemed to be an elected member of the House who has
been elected as such otherwise than as a candidate set up by any political party for
the purposes of sub-paragraph (2) of this paragraph or, as the case may be, deemed
to be a nominated member of the House for the purposes of sub-paragraph (3) of
this paragraph.
Para 3.* Disqualification on Ground of Defection not to Apply in Case of Split.—
Where a member of a House makes a claim that he and any other members of his
legislature party constitute the group representing a faction which has arisen as a result of
a split in his original political party and such group consists of not less than one-third of the
members of such legislature party,—
(a) he shall not be disqualified under sub-paragraph (1) of paragraph 2 on the

ground—
(i) that he has voluntarily given up his membership of his original political
party; or
(ii) that he has voted or abstained from voting in such House contrary to any
direction issued by such party or by any person or authority authorised by it
in that behalf without obtaining the prior permission of such party, person or
authority and such voting or abstention has not been condoned by such
party, person or authority within fifteen days from the date of such voting or
abstention; and
(b) from the time of such split, such faction shall be deemed to be the political party
to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be
his original political party for the purposes of this paragraph.
Difference between `defection' and `split'
Distinction between the Conception ‘Defection’ and ‘Split’ (in Paragraph 3)
The underlying premise in declaring an individual act of defection as forbidden is that true lure of
office or money could be presumed to have
___________________
* Paragraph 3 is now omitted by the Constitution (Ninety-first Amendment) Act, 2003 (w.e.f. 1-1-2004).
prevailed. Legislation has made this presumption on its own perception and assessment of that
extent standards of political proprieties and morality. At the same time Legislature envisaged the
need to provide for such “floor-crossing” on the basis of honest dissent. That a particular course of
conduct commend itself to a number of elected representatives might, in itself, lend credence and
reassurance to a presumption of bona fides. The presumptive impropriety of motives progressively
weakens according as the number of sharing the action and there is nothing capricious and
arbitrary in this legislative perception of the distinction between ‘defection’ and ‘split’.1
Para 4. Disqualification on Ground of Defection not to Apply in Case of Merger.—
(1) A member of a House shall not be disqualified under
sub-paragraph (1) of paragraph 2 where his original political party merges with another
political party and he claims that he and any other members of his original political party—
(a) have become members of such other political party or, as the case may be, of a
new political party formed by such merger; or
(b) have not accepted the merger and opted to function as a separate group,
and from the time of such merger, such other political party or new political party or
group, as the case may be, shall be deemed to be the political party to which he
belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original
political party for the purposes of this sub-paragraph.
(2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original
political party of a member of a House shall be deemed to have taken place if, and only if,
not less than two-thirds of the members of the legislature party concerned have agreed to
such merger.
Para 5. Exemption.—
Notwithstanding anything contained in this Schedule, a person who has been elected to the
office of the Speaker or the Deputy Speaker of the House of the People or the Deputy
Chairman of the Council of States or the Chairman or the Deputy Chairman of the
Legislative Council of a State or the Speaker or the Deputy Speaker of the Legislative
Assembly of a State, shall not be disqualified under this Schedule,—
(a) if he, by reason of his election to such office, voluntarily gives up the
membership of the political party to which he belonged immediately before such
election and does not, so long as he continues to hold such office thereafter, rejoin
that political party or become a member of another political party; or
(b) if he, having given up by reason of his election to such office his membership of
the political party to which he belonged immediately before such election, rejoins
such political party after he ceases to hold such office.
_______________________
1. Kihota Hollohon v. Zachilhu, MANU/SC/0753/1992 : AIR 1993 SC 412.
Scope of Para 6
Para 6. Decision on Questions as to Disqualification on Ground of Defection.—
(1) If any question arises as to whether a member of a House has become subject to
disqualification under this Schedule, the question shall be referred for the decision of the
Chairman or, as the case may be, the Speaker of such House and his decision shall be final:
Provided that where the question which has arisen is as to whether the Chairman or the
Speaker of a House has become subject to such disqualification, the question shall be
referred for the decision of such member of the House as the House may elect in this behalf
and his decision shall be final.
(2) All proceedings under sub-
paragraph (1) of this paragraph in relation to any question as to disqualification of a

member of a House under this Schedule shall be deemed to be proceedings in
Parliament within the meaning of Article 122 or, as the case may be, proceedings in
the Legislature of a State within the meaning of Article 212.
“The Paragraph 6 (1) of the Tenth Schedule, to the extent it seeks to impart finality
to the decision of the Speaker/Chairman is valid. But in Paragraph 6(1) does not
detract from or abrogate judicial review under Articles 136, 226 and 227 of the
Constitution in so far infirmities based on violations of Constitutional mandates, mala
fieds, non-compliance with Rules of Natural Justice and perversity are concerned.
The deeming provision in Paragraph 6 (2) of the Tenth Schedule attracts an

immunity analogous to that in Articles 122(1) and 212(1) of the Constitution. The
deeming provision, having regard to the words “be deemed to be proceedings in
Parliament” or “Proceedings in the Legislature of a State” confines the scope of the
fiction accordingly.”1
Scope of Para 7
Para 7. Bar of Jurisdiction of Courts.—
Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect
of any matter connected with the disqualification of a member of a House under this
Schedule.
“Paragraph 7 of the Tenth Schedule, in clear terms and in effect, excludes the jurisdiction of
all Courts, including the Supreme Court under Article 136 and the High Courts under
Articles 226 and 227 to entertain any challenge to the decision under Para 6 on any ground
of illegality or perversity, not only at an interim stage but also after the final decision on the
question of disqualification on the ground of defection.”1
Para 8. Rules.—
(1) Subject to the provisions of sub-paragraph (2) of this paragraph, the Chairman or the
Speaker of a House may make rules for giving effect to the provisions of this Schedule, and
in particular, and without prejudice to the generality of the foregoing, such rules may
provide for—
(a) the maintenance of registers or other records as to the political parties if any, to
which different members of the House belong;
____________________
1. Kihota Hollohon v. Zachilhu, MANU/SC/0753/1992 : AIR 1993 SC 412.
(b) the report which the leader of a legislature party in relation to a member of a House
shall furnish with regard to any condonation of the nature referred to in Clause (b) of sub-
paragraph (1) of paragraph 2 in respect of such member, the time within which and the
authority to whom such report shall be furnished;
(c) the reports which a political party shall furnish with regard to admission to such political
party of any members of the House and the officer of the House to whom such reports shall
be furnished; and
(d) the procedure for deciding any question referred to in sub-paragraph (1) of paragraph 6
including the procedure for any inquiry which may be made for the purpose of deciding such
question.
(2) The Rules made by the Chairman or the Speaker of a House under sub-paragraph (1) of this
paragraph shall be laid as soon as may be after they are made before the House for a total period
of thirty days which may be comprised in one session or in two or more successive sessions and
shall take effect upon the expiry of the said period of thirty days unless they are sooner approved
with or without modifications or disapproved by the House and where they are so approved, they
shall take effect on such approval in the form in which they were laid or in such modified form, as
the case may be, and where they are so disapproved, they shall be of no effect.
(3) The Chairman or the Speaker of a House may, without prejudice to the provisions of Article 105
or, as the case may be, Article 194, and to any other power which he may have under this
Constitution direct that any wilful contravention by any person of the rules made under this
paragraph may be dealt with in the same manner as a breach of privilege of the House.
Short note on the Tenth Schedule of the Constitution of India
Therefore, the Tenth Schedule inter alia provides that:
(i) an elected member of Parliament or a State Legislature, who has been elected as a
candidate set up by a political party and nominated member of Parliament or a State
Legislature who is a member of a political party at the time he takes his seat would be
disqualified on the ground of defection if he voluntarily relinquishes his membership of such
political party or votes or abstains from voting in the House contrary to any direction of
such party;
(ii) an independent member of Parliament or a State Legislature will be disqualified if he

joins any political party after his election;
(iii) a nominated member of Parliament or a State Legislature who is not a member of a

political party at the time of his nomination and who has not become a member of any
political party before the expiry of six months from the date on which he takes his seat shall
be disqualified if he joins any political party after the expiry of the said period of six
months;
(iv) no disqualification would be incurred where a member claims that he belongs to a

group representing a faction arising from a split in a party or merger of a party in another
provided that in the event of a split the group consists of not less than one‑third of the
members of the legislature party and in case of a merger of not less than two‑thirds of the
members of the legislature party, concerned;
(v) no disqualification is incurred by a person who has been elected to the office of the
Speaker or the Deputy Speaker of the House of the People or of the Legislative Assembly of
a State or to that office of the Deputy Chairman of the Council of States or the Chairman or
the Deputy Chairman of the Legislative Council of a State, if he severs his connection with
his political party;
(vi) the question as to whether a member of a House of Parliament or State Legislature has
become subject to disqualification will be determined by the Chairman or the Speaker of the
respective House; where the question is with reference to the Chairman or the Speaker
himself it will be decided by a member of the concerned House elected by it in that behalf;
(vii) the Chairman or the Speaker of a House has been empowered to make rules for giving
effect to the provisions of the Schedule. The rules are required to be laid before the House
and are subject to modifications/disapproval by the House;
(viii) all proceedings in relation to any question as to disqualification of a member of a

House under the Schedule will be deemed to be proceedings in Parliament within the
meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State
within the meaning of Article 212; and
(ix) notwithstanding anything in the Constitution, no court will have any jurisdiction in
respect of any matter connected with the disqualification of a member of a House.
It was a sad commentary on our political processes and legislative intentions that the Tenth
Schedule that came to be known as the Anti-Defection Law did not implement some of the most
significant recommendations of the Chavan Committee on Defections, viz. those relating to (a) the
Prime Minister or the Chief Minister being only from among the members of the popular House, (b)
debarring every defector from being appointed a Minister, and (c) putting a ceiling on the size of
ministries both at the Union and the State levels.
Weaknesses in Anti-defection Law and Suggestions for Reform
Briefly discuss the provisions of Anti-Defection Law. What suggestions would you give for the
change in the Anit-Defection Law?
Do you agree with the view that the Anti-Defection Law has completely failed to curb the evil of
unprincipled defection? What are your suggestions for reform of the Anti-Defection Law?
(1) Several terms like ‘political parties’, ‘split’, ‘merger’, etc., have not been defined and many of
the problems have been caused by this ambiguity. Writers on the subject have been saying for a
long time that the terms needed to be defined clearly. The Tenth Schedule defined a “legislature
party” and an “original political party” in either case with reference to a “political party” but
unfortunately a “political party” has not been defined. It would be necessary to define a political
party and lay down conditions for its recognition for purposes of the Anti-Defection Law. It is
particularly imperative in view of the constitutional provision of Para 3 of the Tenth Schedule to the
effect that the breakaway faction following a split would be deemed to be a “political party” for
purposes of Para 2(1).
(2) Direction 120 of the Directions by the Speaker provides for recognizing a parliamentary party
or group. To be recognized as a party, the minimum number required is one-tenth of the
membership and for a group it should be at least 30. But, after the Anti-Defection Law, every
member of the House who is not elected as an independent or nominated, belongs to his party
even if he be the only member of his party, i.e., irrespective of the number of its members in the
House, every party that is represented in the House comes to automatically get constitutional
recognition as a party. Thus, there is some contradiction between the constitutional provisions and
the Speaker’s Directions. One of the two would need to be amended. Until that is done, the
confusion would obviously prevail and the Direction would stand only to the extent that it does not
contravene the former.
(3) The 1989 amendment to the Representation of the People Act sought to define “political party”
as an association or a body of individual citizens of India registered with the Election Commission
as a political party under Section 29A. On the other hand, Para 4 of the Tenth Schedule provided
inter alia that a member would not be disqualified on grounds of defection if his original political
party merged with another political party and he claimed that he and any other members of his
original political party had “not accepted the merger and opted to function as seperate group” and
from the time of such merger such group would be deemed to be his political party and original
political party. The question would be whether this position would be reconcilable in a situation
where the original political party might have dissolved itself both inside and outside the Legislature
and merged with another party—old or newly formed—or in a situation where one or more
members might claim to have not accepted merger and remained in the original political party in
the House while the original party might not have remained any more in existence as a political
party outside.
(4) The objective of the Anti-Defection Law was stated to be to cure the evil of unprincipled
defection by Legislature while leaving scope for realignment of forces in the House by way of
merger of two or more legislature parties or split in an existing party as part of the process of
reaching ideological polarization or the like. In other words, the Anti-Defection Law allowed as
legitimate party splits and mergers. By using the device of expelling as many members of the
breakaway faction claiming a split as might be necessary to reduce them to less than one third,
some party leaderships of the day have tried to completely nullify every legitimate split in their
ranks irrespective of the Constitutional sanction for such split. Also, Paragraph 3 of the Tenth
Schedule can be interpreted in two different ways. One interpretation may be that under it a split
in the original political party of the member is a condition precedent for the Speaker to recognize a
split in the legislature party. If that be the correct constitutional position, the Speaker has to satisfy
himself that a split in original political party of the member has actually taken place before
recognizing the split in the legislature party. But, another perhaps equally feasible interpretation
may be that it is not the job of the Speaker under the Tenth Schedule to decide whether a split in
the original political party has taken place or not. Whenever any claim is made by a member of the
House that he and any other members of his legislature party constitute a group representing a
faction which has arisen as a result of the split in his original party, all that the Speaker is required
to do is to ascertain whether the group (member and his companions) consists of not less than
one-third of the members of the legislature party. If this requirement is met, the speaker is bound
to hold that the member concerned shall not be disqualified. But, the doubts and differences have
to be set at rest by clarifying what is actually intended.
The Tenth Schedule needed to be amended to make the provisions of Paragraph 3* unambiguous
and to clearly lay down whether split was conceived as a one-time phenomenon occurring at a
particular moment and covering only those members who at that point of time constituted the
breakaway group or whether as a result of a split in his original political party every member was
allowed some time to make up his mind and decide which faction he should join. Split in an All-
India Party cannot after all be conceived as a sudden guillotine falling from above at a precise point
of time and cutting the party into two clear bits. It is a process and even in ideal conditions
members need time to decide which way to go.
(5) The number of political parties has to be reduced by law providing for a strict percentage of
nation-wide or state-wide vote being compulsory for recognition as a national or a State party. Only
national parties or alliances of parties around national parties should be able to contest seats for
Lok Sabha. State parties can seek representation in the Rajya Sabha and, of course, contest
elections for the Houses of State Legislatures.
(6) If defection is deemed to be an offence or a crime, distinction between individual and group
defection must be done away with. After all notwithstanding the Supreme Court decision on the
point, an act by an individual on his own cannot be deemed to be a crime if the same act
committed by a group of people—one-third of party membership—after entering into a conspiracy
to act together to defeat the objective of the law and throw out a legally constituted government to
take its place, is to be deemed entirely legal, legitimate and acceptable under the system. If we are
sincere about outlawing defections, anyone voluntarily changing his party affiliation after being
elected on a particular party ticket must automatically and immediately lose his seat in the
Legislature. There should be no exceptions and no provisos.
(7) The Tenth Schedule and the Rules framed thereunder do not stipulate the existence of any
‘unattached’ members in the House. Every member is a member of the party on the ticket of which
he contested the election or he is an ‘independent’ or a ‘nominated’ member. If it is proposed to
retain the Presiding Officer’s power of declaring a member as ‘unattached’, the category would
need to be specifically defined and provided for in the Anti-Defection Law.
_______________________
* Paragraph 3 is now omitted by the Ninety-first (Amendment) Act, 2003.
Also, if an elected member can be expelled by the party and declared ‘unattached’ by the Speaker,
it stands to reason that he becomes free from the bondage of affiliation to the political party on the
symbol of which he was elected to the House and if so, it should be permissible for him to join
another political party or form a new party.
(8) The language of the Constitution, Tenth Schedule, Para 2 obviously amounts to making
“defection” a cognizable offence inasmuch as it categorically says that a defecting member “shall
be disqualified”. But the rules have sought to considerably dilute or modify the intent and impact of
the provision by laying down in effect that no notice of defection by a member shall at all be taken
unless a petition is made and received in writing from another member. This flaw needs to be
corrected by amending either the constitutional provision or the rule. While the same provision
clearly seems to intend and ordain almost immediate disqualification or in any case the most
expeditious decision in the matter, the Rules have been so framed as to involve a most dilatory
procedure.
(9) Para 2 of the Tenth Schedule inter alia lays down that subject to other provisions, a member
will be disqualified if he votes or obtains from voting contrary to any “direction” issued by his
political party. But, question like what constitutes “direction”, how it is to be issued, who can
legitimately issue it etc., have not been addressed, and same should be addressed.
(10) The National Commission to review the working of the Constitution has recommended as
follows:
“The provision of the Tenth Schedule of the Constitution should be amended specifically to
provide that all persons defecting – whether individually or in groups – from the party or
the alliance of parties, on whose ticket they had been elected, must resign from their
Parliamentary or Assembly seats and must contest fresh elections. In other words, they
should lose their membership and the protection under the provision of split, etc., should be
scrapped. The defectors should also be debarred to hold any public office of a Minister or
any other remunerative political post for at least the duration of the remaining term of the
existing Legislature or until, the next fresh elections whichever is earlier. The vote cast by a
defector to topple a government should be treated as invalid. Further, the power to decide
questions as to disqualification on ground of defection should vest in the Election
Commission instead of in the Chairman or Speaker of the House concerned.”
It is agreed on all sides that the Tenth Schedule of the Constitution which embodies the Anti-
Defection Law has several serious lacunae which have caused tremendous damage to out body
politic and that amendments are called for urgently. We have, however, developed a strange
penchant for the politics of timing. Each leader tries to wait for the most opportune moment when
to do the right thing would be of the maximum political benefit to him and/or to his party until in
the process of this waiting, situation gets explosive, out of hand and beyond management. Delay in
bringing forward a comprehensive amendment only increases doubts about the bona fides of the
Government’s intentions. What is needed urgently is a comprehensive amendment of the Tenth
Schedule of the Constitution. This should be introduced at the earliest and circulated for eliciting
public opinion.
CaseLaws
When a person is Vice-Chancellor of an University
Mohd. Akram Ansari v. Chief Election Officer, (2008) 2 SCC 95
Facts:—
The appellant contested election to the Delhi Legislative Assembly in 2003 but lost.
Respondent was declared elected. At the time of election, it was also Chairman of Delhi
Wakf Board.
Issue:—
Whether Wakf (Delhi Amendments) Act, 2006 retrospective.

Section 31A of the Wakf Act, 1995 pertains to prevention of disqualification for membership
of Legislative Assembly of NCT of Delhi.
Decision:—
The Amendment Act of 2006 does not specifically state that it is retrospective. However use
of words “and shall be deemed” never to have been disqualified in Section 31A of the Wakf
Act, 1995 makes it clear that it is retrospective. Hence even if it was disqualified in the year
2003, he has to be deemed not to have been disqualified in view of Section 31A.
Joti Prasad Upadhya v. Kalka Prasad Bhatnagar, MANU/UP/0039/1962 : AIR 1962 All 128
Facts:—
The respondent was appointed by the Chancellor under Section 9 of the Agra University Act,
1926, as the Vice-Chancellor of the University of Agra, and he held this office on the date of
nomination and also in the date of election to the UP Legislative Council. The office of the
Vice-Chancellor was and is a whole time job carrying salary of Rs. 2,000 per month, and
furnished house, or in lieu thereof Rs. 200 per month as house allowance.
This was an appeal by the appellant under Section 116A the Representation of the People
Act, 1951 against the order of the Tribunal dismissing the election petition moved by him
under Section 81 of the Act calling in question the election of the respondent as member of
the UP Legislative Council from the UP west Graduates Constituency. The election was held
in the year 1960 to fill in two vacancies. The appellant and respondent along with three
others were candidates for election to the vacancies and the respondent and
Shyamanarayana, respondent were duly elected having secured the maximum number of
votes.
As the appointment was made by the Governor of Uttar Pradesh, though in his capacity as
the Chancellor of the University, it is contended on behalf of the appellant that respondent
held the office of profit under the State Government. Respondent who held the office of
profit contend that he held the office under the University of Agra, and not under the State
Government.
Issue:—
Whether, in the eyes of the law, the respondent held the office of profit under the State
Government?
Decision:—
The Allahabad High Court observed that, the power conferred on the State Government to
exercise control and supervision over the working of the University will not render the
university, or its officers subordinate to the State Government in the sense that they would
be disqualified to be chosen for, and being members of the State Legislature. It will be
found that the disqualification under Article 191 extends only to holders of an office of profit
under the Government of India or the Government of State other than an office declared by
the Legislature of the State by law not to disqualify its holder while the disqualification
under Article 58 for election as President and under Article 66 as Vice-President extends to
holder so of other offices of profit.
In other words, the officers of the University shall not stand disqualified for being chosen as
members of UP Legislative Council simply because the State Government has power under
the Agra University Act. When given the powers to exercise, control and supervision
conferred over its working. We, therefore, exclude from consideration the effect of the
powers and supervision conferred on the State Government under the Agra University Act
and with regard to the alleged disqualification under Article 191. We shall have to confine
overselves, in the circumstances of the present case, to the mode of appointment.
If the appointment of the Vice-Chancellor by the Chancellor of the University is not deemed
to be an appointment made by the State Government, the Vice-Chancellor of the Agra
University shall not be disqualified and can be chosen as a member of the UP Legislative
Council. As already mentioned above the Chancellor cannot be equated with the State
Government and the two cannot be placed on the same footing, and consequently an
appointment made by the Chancellor cannot be deemed to have been made by the State
Government.
The provisions of the Constitution also indicate that the Governor functions in two different
capacities, which cannot be confused with each other. The powers exercised by him are
executive and legislative, while exercising the executive power of the State, he can be
deemed to be functioning as or to be the State Government, but not while exercising power
as a member of the State Legislature.
When the same person can exercise power other than as the Head of the Executive, there is
no reason why the same rule be not applied to exercise of power by the same person as
Chancellor of the University, it is only when the Governor exercises the executive power
that he can be compared with the State Government, and consequence when he discharges
duties of the Chancellor, he cannot be deemed to be as the head of the executive and to be
acting as the State Government. Vice-Chancellor is appointed by the Governor in his
capacity as Chancellor of the University distinct form his office as the head of Executive, and
the appointment cannot be deemed to have been made by the office of the Vice-Chancellor
or said to be under, the State Government by virtue of the appointment having been made
by the Governor in another capacity.
The High Court held that, the respondent, Vice-Chancellor of the Agra University, was not
holding an office of profit under the State Government, nor under the Government of India
nor in any manner disqualified to stand for election and be chosen member of the UP
Legislative Council. Thus, the Election Tribunal was right in dismissing the election petition
preferred by the appellant.
When a person is a Chartered Accountant
Guru Gobinda Basu v. Sankari Prasad, AIR 1968 SC 254
Facts:—
Guru Gobinda Basu who is a Chartered Accountant and a partner of the firm of Auditors
carrying on business under the name and style of G. Basu and Company. The firm acted as
the auditor of certain companies and corporation, such as the Life Insurance Corporation of
India, the Durgapur Projects Ltd. and the Hindustan Steel Ltd., on payment of certain
remuneration. The appellant was also a Director of the West Bengal Financial Corporation
having been appointed or nominated as such by the State Government of West Bengal. The
appointment carried with it the right to receive fees or remuneration as Director of the said
corporation.
In February-March, 1962, the appellant was elected to the House of the People from
Constituency No. 34 (Burdwan Parliamentary Constituency) which is a single-member
constituency. The election was held in February 1962, he having secured 1,55,485 votes as
against his rival who secured 1,30,015 votes. This election was challenged by two voters of
the said constituency by means of an election petition dated April 10, 1962.
Issue:—
Whether the appellant was disqualified from being chosen as, and for being, a member of
the House of the People under Article 102(1)(a) of the Constitution?
Decisions:—
Election Tribunal:—
The Election Tribunal held that the appellant was a holder of offices of profit both
under the Government of India and the Government of West Bengal and was,
therefore, disqualified from standing in the election under Article 102(1)(a) of the
Constitution. The Election Tribunal accordingly allowed the election petition and
declared that the election of the appellant to the House of the People was void.
High Court:—
There was an appeal to High Court under Section 116A of the Representation of the People
Act, 1951. The High Court dismissed the appeal, but granted a certificate of fitness under
Article 133(1)(c) of the Constitution.
Supreme Court:—
The Supreme Court observed that: The appointment of the appellant as also his
continuance in office rests solely with the Government of India in respect of the Companies.
His remuneration is also fixed by the Government. The Court assumed for the purpose of
this appeal that the two companies are statutory bodies distinct from Government but we
must, remember at the same time that they are Government companies with in the
meaning of the Indian Companies Act, 1956 and 100% shares are held by the Government.
In the performance of his functions the appellant is controlled by the Comptroller and
Auditor-General who himself is undoubtedly holder of an office of profit under the
Government though there are safeguards in the Constitution as to his tenure of office and
removability therefrom. Under Article 148 of the Constitution the Comptroller and Auditor-
General of India is appointed by the president and he can be removed from office in like
manner and on the like ground as a Judge of the Supreme Court. The salary and other
conditions, of service of the Comptroller and Auditor-General shall be such as may be
determined by Parliament by law and until they are so determined shall be as specified in
the Second Schedule to the Constitution. Under Clause (4) of Article 148 the Comptroller
and Auditor-General is not eligible for further office either under the Government of India or
under the Government of any State after he was ceased to hold his office. Cause (5) of the
said Article lays down that subject to the provisions of the Constitution and of any law made
by Parliament, the administrative powers of the Comptroller and Auditor-General shall be
such as may be prescribed by rules made by the President after consultation with the
Comptroller and Auditor-General. Under Article 149 of the Constitution the Comptroller and
Auditor-General shall perform such duties and exercise such powers in relation to the
accounts of the Union and of the States and of any other authority or body as may be
prescribed by or under any law made by Parliament and, until provision in that behalf is so
made, shall perform such duties and exercise such powers in relation to the accounts of the
Union and the States as were conferred on or exercisable by the Auditor-General of India
immediately before the commencement of the Constitution in relation to the accounts of the
Dominion of India and of the Provinces respectively. The reports of the Comptroller and
Auditor-General of India relating to the accounts of the Union have to be submitted to the
President and the reports of the Comptroller and Auditor-General relating to the accounts of
a State have to be submitted to the Governor from the aforesaid provisions. It appears to
us that the Comptroller and Auditor-General is himself a holder of an office of profit under
the Government of India, being appointed by the President by Rules made by the President,
subject to the provisions of the Constitution and of any law made by Parliament. Therefore
if we look at the matter from the object of view of substance rather than that of form, it
appears to us that the appellant as the holder of an office of profit in the two Government
Companies, the Durgapur Projects Ltd. and Hindustan Steel Ltd., is really under the
Government of India, he is appointed by the Government of India, he is removable from
office by the Government of India, he performs functions for two Government Companies
under the control of the Comptroller and Auditor-General who himself is appointed by the
President and whose administrative powers may be controlled by Rules made by the
President.
The Apex Court held that, where the several elements the power to appoint, the power to
dismiss, the power to control and give directions as to the manner in which the duties of the
office are to be performed, and the power to determine the question of remuneration are to
present in given case, then the officer in question holds the office the authority so
empowered.
For the reasons given above, the Election Tribunal and the High Court were right in coming
to conclusion that the appellant has an auditor of the two Government Companies held an
office of profit under the Government of India within the meaning of Article 102(1)(a) of the
Constitution. As such he was disqualified for being chosen as, and for being a member of
either House of Parliament.
When a person is employed in a Municipality
Ashok Kumar Bhattacharya v. Ajay Biswas, (1985) 1 SCC 151
Facts:—
The petitioner-appellant was a voter in the West Tripura Parliamentary Constituency. He

contested the mid-term Lok Sabha election held in 1988 from the West Tripura
Parliamentary Constituency as a nominee of Congress (I). There were six candidates
including the petitioner contesting the said election. The respondent was a CPI (M)
candidate. December 8, 1979 was the date of filing of the nominations. Nominations were
scrutinised onDecember 11, 1979 and the withdrawal date was December 13, 1979. On
January 6, 1980 the polling was held and the result of the election was declared on January
8, 1980. The main contest was between the petitioner-appellant and the respondent. The
respondent had secured 1,98,335 votes as against the appellant who had secured 1,42,990
votes. The respondent was declared elected.
The respondent was employed in Agartala Municipality and held the post carrying the scale
of pay of Rs. 8,180 per month. The Commissioners of the Agartala Municipality were
superseded by a Municipal Act, 1932 as extended to the State of Tripura in 1975. The effect
of Section 554 of the said Act is that during the period of supersession the power and duties
of the Commissioners and Chairman shall be exercised and performed by the Administration
appointed by the State Government under that section. The respondent who was under
suspension at the time of suppression was dismissed from service in the Agartala
Municipality on December 20, 1975. The Sate Government thereafter had confirmed the
order of dismissal. When the Left Front Government came in power in the State of Tripura,
respondent was reinstated to the post of Accountant-in-charge of Agartala Municipality on
May 6, 1978 with immediate effect by the Administrator. So at the relevant time he was an
Assistant Accountant and was Accountant-in-charge under the Agartala Municipality drawing
a monthly salary of Rs. 200.
Issue:—
Whether the respondent was disqualified for office of profit under the Government of Tripura
within the meaning of Article 102(1)(a) of the Constitution?
Decision:—
The Apex Court observed that the true principle behind this provision in Article 102(1)(a) is
that there should not be any conflict between the duties and the interest of an elected
member. Government controls various activities in various spheres again various measures.
But to Judge whether employees of any authority or local authority under the control of
Government become Government, measure and nature of control must be judged in the
light of the facts and circumstances in each case so as to avoid any possible conflict
between personal interests and duties.
For determination of the question whether a person holds an office under the Government
each case must be measured and judged in the light of the relevant provisions and the
sections and having regard to the provisions of the Agartala Municipal Act, 1932 as
extended to Tripura, the provisions of which have been set out here in before, we are of the
opinion that the Government does not control officers like the respondent and that he
continues to be an employee of the Municipality though his appointment is subject to
authority does not cease to become independent entity separate from Government.
Whether in a particular case it is so or not must depend upon the facts and circumstances of
the relevant provision. To make in all cases employees of Local Authorities subject to the
Control of Government, holders of office of profit under the Government would be to
obliterate the specific differentiation made under Article 58(2) of the Constitution and to
extend disqualification under Article 102(1)(a) to extent not warranted by the language of
the article.
The Supreme Court held that, having noted the relevant provisions, we are of the opinion
that the respondent was not at the relevant time a holder of office of profit under the
Government. Some amount of control of the State Government is recognised even in a
Local Authority which is taken account of under Article 58.
When a person is a Government Contractor
Lalitshwar Prasad Sahai v. Bateshwar Prasad, AIR 1966 SC 580
Facts:—
The appeal arises out of the election of the respondent Sri Bateshwar Prasad, to the Bihar
Legislative Assembly from Lal Ganj North constituency. The appellant was one of the
candidates. He filed an election petition, alleging inter alia that the election of the
respondent, was void as he was disqualified under Section 7(d) of the Representation of the
People Act 1951, had entered into various contracts with the Government and that these
contracts were subsisting on January 14, 1962, the date fixed for filing nomination papers.
The Election Tribunal, after reviewing both oral and documentary evidence, it held that the
respondent had entered into contracts to do flooring work in the Rajender Surgical Block of
Patna Medical Hospital and that these were subsisting on the date of the nomination, viz.,
January 14, 1962. The Election Tribunal further held that by virtue of Clause 39(c) of the
condition embodied in the agreement, it was not at all necessary for the Public Works
Department to have entered into a contract with the respondent’s company, called the
Patna Flooring Company in the result the Election Tribunal declared the election of the
respondent to the Bihar Legislative Assembly from the Lal Ganj North constituency as void,
but refused the prayer of the petitioner before to be declared elected.
Issue:—
Whether the election of the respondent is void and he was disqualified under Section 7(d) of
the R.P. Act 1951, under the above-mentioned circumstances?
Decision:—
High Court:—
The High Court observed that, “it is difficult to accept the contention of the learned
counsel of the respondent that a transaction may be void under the Contract Act,
but its actual existence may still be a disqualification under present Section 7(d)”.
In conclusion, the High Court held that the respondent had not incurred a
disqualification under Section 7(d) of the Act, and accordingly set aside the
judgment and order of the Election Tribunal.
Supreme Court:
The Court observed that, comparing the old Section 7(d) and the new Section 7(d),
there is no doubt that there has been a change in the working. One change is quite
clear and that is that the contract now must have been entered in the course of his
trade or business by a person with the appropriate Government. Previously it need
not have been a contract in the course of trade or business. The words were much
wide and included any contract entered into for his benefit or on his own account or
a contract in which he had any share or his disqualification. The Court come to a
finding that there was admittedly a contract in the beginning. The fact that the plaint
does not allege any subsequent non-acceptance or refusal to ratify by the
Government would not stop the respondent from proving in this case that on the
material on record it is clear that the Government had not ratified the contract with
the respondent, filed by the Government in the money suit cannot be used to
destroy the inference which clearly arises from the documents referred to above. It
is doubtful whether the written statement can be taken into consideration at all.
In the result there was no contract between the respondent and the Government
subsisted at the relevant time, viz., the date of the nomination, and the respondent
was not disqualified under Section 7(d). The appeal accordingly dismissed.
When a person is holding the post of teacher
Biharilal Dobray v. Roshan Lal Dobray, AIR 1984 SC 385
Facts:—
The appellant, the respondent and some others were nominated as candidates at the
election to the Uttar Pradesh Legislative Assembly from Kanauj (SC) Assembly constituency
at the general elections held in the year 1980. The nomination paper of the respondent was,
however, rejected by the Returning Officer by his order dated May 5, 1980 on the ground
that he was holding an office of profit under the Government of the State of Uttar Pradesh
and hence was disqualified under Article 191(1)(a) of the Constitution for being chosen as a
member of the Legislative Assembly. After such rejection the polling took place on May 28,
1980 and the appellant who secured the highest number of votes was declared elected on
June 1, 1980. Aggrieved by the result of the election, the respondent who was not allowed
to contest the election by reason of the rejection of his nomination paper filed an election
petition before the High Court of Allahabad challenging the correctness of the order of
rejection of his nomination paper and the result of the election which was held thereafter.
He contended that since the post of an Assistant Teacher in a Basic Education School which
he held was not an office of profit under the State Government the rejection of his
nomination was improper and, therefore, the election of the appellant was liable to be
declared as void as provided in Section 100(1)(c) of the Representation of the People Act,
1951. The High Court being of the opinion that the post held by the respondent was not an
office of profit under the State Government held that the rejection of his nomination was
improper and the election of the appellant was liable to be declared as void.
Issue:—
Whether the respondent was holding office of profit, and his nomination paper was rightly
rejected by the returning officer?
Decision:—
The Apex Court observed that, the object of enacting

Article 191(1)(a) is that a person who is elected to a Legislature should be free to carry on
his duties fearlessly without being subjected to any kind of governmental pressure. The
term “office of profit under the Government” used in Clause (a) of Article 191(1) though
indeterminate is an expression of wider import than a post held under the Government
which is dealt with in Part XIV of the Constitution. For holding an office of profit under the
Government a person need not be in the service of the Government and there need not be
any relationship of master and servant between them. An office of profit involves two
elements, namely, that there should be an office and that it should carry some
remuneration. The true test of determination of the question whether a statutory
corporation is independent of the Government depends upon the degree of control the
Government has over it, the extent of control exercised by the several other bodies or
committees over it and their composition, the degree of its dependence on Government for
its financial needs and the functional aspect, namely, whether the body is discharging any
important Government function or just some function which is merely optional from the
point of view of Government.
The various provisions of the UP Basic Education Act and the Rules thereunder show that
the State Government exercises administrative, disciplinary and financial control and in fact
overall control over the UP Board of Basic Education and its employees. Thus the Board is
not an authority which is truly independent of the Government and every employee of the
Board is in fact holding his office under the Government. This is not even a case of
attempting to pierce the veil and trying to find out the true nature of something after
uncovering it but a case where its true nature i.e., the subordination of the Board and its
employees to the Government is writ large on the face of the Act and the Rules made
thereunder.
The Supreme Court held that, having considered all aspects of the question in the light of
the high purposes underlying Article 191(1)(a) of the Constitution, we are of the view that
the respondent was holding an office of profit under the State Government and his
nomination was rightly rejected by the Returning Officer. The judgment of the High Court is,
therefore, liable to be reversed.
When a person is a Government Contractor
On the Ground of ‘Government Contract’
Abdul Rahiman Khan v. Sadasiva Tripathi, AIR 1969 SC 302
Facts:—
In the general elections, the respondent was declared elected to the Legislative Assembly of
Orissa. The appellant filed an election petition on the ground that the appellant was carrying
on the business of a building contractor and that in pursuance of a notification issued by the
Government of Orissa he had submitted tenders for construction of buildings of the Rental
Housing Scheme at the rates specified therein. Those tenders were accepted and the
appellant had carried out a part of the construction work but had thereafter stopped the
work because he suffered serious injuries which necessitated his detention in a public
hospital. The appellant claimed that at his request the contract was cancelled, and on that
account at the date of the filing of his nomination there was between him and the State of
Orissa no subsisting contract for execution of works undertaken by him, and that in any
event there was in law no contract between him and the State relating to the execution of
works which disqualified him from standing at the election as a candidate for a seat in the
State Legislative Assembly.
In January 1965 tenders were invited by the Government of Orissa for construction of
buildings under the Rental Housing Scheme. The tenders submitted by the appellant were
accepted and on March 30, 1965, the appellant and the Executive Engineer signed an
agreement.
Issue:—
Whether appellant could not be disqualified under Section 9A of the R.P. Act merely because
the contracts were not enforceable against the State because of Article 299(1) of the
Constitution?
Decision:—
The Apex Court observed that, the explanation to Section 9A contemplates a case where
the contract has been fully performed by the contractor, but not by the Government. But
where the contract has not been wholly performed or completed by the contractor, unless
the contractor shows that the contract had been determined by mutual consent, he cannot
claim that there was no subsisting contract at the date of the filing of the nomination paper.
Such a case does not fall within the explanation to Section 9A.
Counsel for the appellant contented that the contract for execution of works was between
the State and the appellant and Article 299 of the Constitution applied thereto, and since
the contract was not shown to be executed in the name of the Governor, and by an
authority competent to execute the contract on behalf of the Governor, the disqualification
under Section 9A did not apply. The Court held that, a contract resulting from the
acceptance of a tender by the State Government, though not enforceable by a suit against
the State Government by reason of its not having been executed in the manner prescribed
by
Article 299(1) of the Constitution must still be regarded as disqualifying the person entering
into contract from standing as a candidate for election to the State Legislature under the
Representation of the People Act. If the contract is treated by both the parties as binding
subsisting contract it will operate as disqualification.
When the person is a Government Contractor
Konappa R. Nadgouda v. Vishwanath Reddy, AIR 1969 SC 447
Facts:—
The election concerned the Yadagiri constituency and was held in February 1967, during the
general elections. To begin with, there were seven candidates. Of these five withdrew
leaving the seat to be contested by the appellant and the first respondent. The first
respondent was returned as the successful candidate having obtained 4000 votes in excess
of his reval. In March, 1967, the defeated candidate referred an election petition.
The first respondent was a partner in a firm known as the Yadagiri Construction Company,
Yadagiri. This firm held several contracts from the Mysore Government. In this appeal, we
are concerned with two contracts only which were the construction of (1) a road known as
“Nalwar Sonthi Road” in Calbarga Division for a distance of four miles, and (2) a dispensary
building for Primary Health Center at Wadagana.
Issue:—
Whether the election of Vishwanath Reddy is void?
Contention of Petitioner:—
That the contracts were subsisting on January 28, 1967 when the nominations were filed
and the subsistence of the contracts with the Government rendered the election of the first
respondent void. The election petitioner claimed that he was entitled to be declared elected
after considering that the votes cast in favour of the 1st respondent as thrown away.
Decision:—
High Court dismissed the petition on the ground that although these agreements contained
clause for maintenance and repairs over a period of time after the completion the work of
construction, that did not make the contracts to subsist therefore, that too was not a
disability. Again some of the items from these two contracts might not have been
completed, still the contracts as a whole were substantially performed and, therefore, there
was no bar to the candidature of the Vishwanath Reddy.
Supreme Court observed that there were two contracts one for the construction of a road
for a distance of four miles and the other the construction of a dispensary building. Two
separate agreements have been produced which were entered into by the Yadagiri
Construction Company with the Government for the execution and performance of these
contracts. It was urged in the High Court by the election petitioner that both the contracts
remained incomplete and, therefore they subsisted and that candidate was under
disqualification and could not stand for the election. The contract for the construction of the
road, entered into by the Yadagiri Construction Company included twelve items which the
firm had to complete.
Applying these observations in the context of construction of buildings and roads, is obvious
that if some part is found defective and has to be done again, the contract of execution as
such is still to be fully performed. It is possible to describe the action taken as one to repair
the defect, but in essence it is a part of the contracts was required to be but in essence it is
a part of the contract of execution, because no execution can be said to be proper or
complete till it is properly executed. Taking the fact that some portion of the original
contracts remained to be performed with the fact that under the contracts the contractor
was required not only to complete the original work but to repair defects or
re-do something which he had not properly done, therefore, it is the matter must fall within
Section 9A of the Representation of the People Act. This is not a case like the supply of a
refrigerator which after giving service for some time goes out of order and something has to
be done to replace a part which is defective. The analogy is not quite opposite. Here the
building was completed very recently and the flooring had to be re-done and various other
things were left unfinished and those had to be completed by the contractor. Similarly in
relation to the road was in actual use, under the contract, mile and hectometer stones had
to be fixed and certain other stones fixed at curves and boundaries. This was not done, The
two contracts, therefore, were not fully performed and under Clause 20 of the agreement, it
was incumbent upon the contractor to complete this part of his obligation. In our opinion,
the High Court was in error in holding that the contracts had been fully performed and,
therefore, Section 9A did not apply.
The Court held that the appeal must succeed and the election of Vishwanath Reddy is void.
The votes cast in favour of the first respondent must be treated as thrown away.
Anti-Defection Law
Briefly discuss the Constitutional validity of the Tenth Schedule in the light of Kihoat Hollohon
v. Zachilhu case.
Kihoat Hollohon v. Zachilhu, MANU/SC/0753/1992 : AIR 1993 SC 412
Issue:—
In this case, common question was raised as to the constitutional validity of the constitution
(52nd Amendment) Act, 1985, in so far as it introduced the Tenth Schedule in the
Constitution of India.
Decision:—
The Supreme Court observed that, democracy is a part of the basic structure of our
Constitution, and rule of law, and free and fair elections are basic features of democracy.
One of the postulates of free and fair elections is provision for resolution of election disputes
as also adjudication of disputes relating to subsequent disqualfications by an independent
authority. It is only by a fair adjudication of such disputes relating to validity of elections
and subsequent disqualifcations of members that true reflection of the electoral mandate
and governance by rule of law essential for democracy can be ensured. In the democratic
pattern adopted in our Constitution, not only the resolution of election dispute is entrusted
to a judicial tribunal, but even the decision on question as to disqualification of members
under Articles. 103 and 192 is by the President/Governor in accordance with the opinion of
the Election Commission. The constitutional scheme, therefore, for decision on questions as
to disqualification of members after being duly elected, contemplates adjudication of such
disputes by an independent authority outside the House, namely, President/Governor in
accordance with the opinion of the Election Commission, all of whom are high constitutional
functionaries with security of tenure independent of the will of the House. Sub-clause (e) of
Clause (1) in Articles 102 and 191 which provide for enactment of any law by the
Parliament to Prescribe any disqualification other than those prescribed in earlier
sub-clauses of Clause (1), clearly indicates that all disqualifications of members were
contemplated within the scope of Articles 102 and 191. Accordingly, all disqualifications
including disqualification on the ground of defection, in our constitutional scheme, are
different species of the same genus, namely, disqualification, and the constitutional scheme
does not contemplate any difference in their basic traits and treatment. It is undisputed that
the disqualification on the ground of defection could as well have been prescribed by an
ordinary law made by the Parliament under Articles 102(1)(e) and 191(1)(e) instead of by
resort to the constitutional power of enacting the Tenth Schedule. That itself indicates that
all disqualifications of members according to the constitutional scheme were meant to be
decided by an independent authority outside the House such as the President/Governor, in
accordance with the opinion of another similar independent constitutional functionary, the
Election Commission of India, who enjoys the security of tenure of a Supreme Court Judge
with the same terms and conditions of office. Thus, for the purpose of entrusting the
decision on the question of disqualification of a member, the constitutional scheme
envisages an independent authority outside the House and not within it, which may be
dependent on the pleasure of the majority in the House for its tenure.
The Speaker’s office is undoubtedly high and has considerable aura with the attribute of
impartiality. This aura of the office was even greater when the Constitution was framed and
yet the framers of the Constitution did not choose to vest the authority of adjudicating
disputes as to disqualification of members to the Speaker; and provision was made in
Articles 103 and 192 for decision of such disputes by the President/Governor in accordance
with the opinion of the Election Commission. The reason is not far to seek.
The Constitution is not designating the Speaker as the authority to decide election disputes
and questions as to disqualification of members under Articles 103, 192 and 329 and opting
for an independent authority outside the House, the framers of the Constitution had in this
manner kept the office of the Speaker away from this controversy. There is nothing unusual
in this scheme if we bear in mind that the final authority for removal of a Judge of the
Supreme Court and High Court is outside the Judiciary in the Parliament under Article
124(4). On the same principle the authority to decide the question of disqualification of a
member of Legislature is outside the House as envisaged by Articles 103 and 192.
In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such
dispute with no provision for any appeal or revision against the Speaker’s decision to any
independent outside authority. This departure in the Tenth Schedule is a reverse trend and
violates a basic feature of the Constitution since the Speaker cannot be treated as an
authority contemplated for being entrusted with this function by the basic postulates of the
Constitution, notwithstanding the great dignity attaching to that office with the attribute of
impartiality.
It is the Vice-President of India who is ex officio Chairman of the Rajya Sabha and his
position, being akin to that of the President of India, is different from that of the Speaker.
Nothing said herein relating to the office of the Speaker applies to the Chairman of the
Rajya Sabha, that is, the Vice-President of India. However, the only authority named for the
Lok Sabha and the Legislative Assemblies is the Speaker of the House and entrustment of
this adjudicatory function fouls with the constitutional scheme and, therefore, violates a
basic feature of the Constitution. Remaining part of the Tenth Schedule also is rendered
invalid notwithstanding the fact that this defect would not apply to the Rajya Sabha alone
whose Chairman is the Vice-President of India, since the Tenth Schedule becomes
unworkable for the Lok Sabha and the State Legislatures. The Statutory exception of
Doctrine of Necessity has no application since designation of authority in the Tenth Schedule
is made by choice while enacting the Legislation instead of adopting the other available
options.
The Court held, that, even if the entire Tenth Schedule cannot be held unconstitutional
merely on the ground of absence of ratification of the Bill, assuming it is permissible to
strike down para 7 alone, the remaining part of the Tenth Schedule is rendered
unconstitutional also on account of violation of the aforesaid basic feature. Irrespective of
the view on the question of effect of absence of ratification the entire Tenth Schedule must
be struck down as unconstitutional.
—————
© Universal law Publishing Co.

Qualifications and Disqualifications of Candidates Seeking Election and of Sitting Elected Members of Parliament and State Legislatures

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Qualifications and Disqualifications of Candidates Seeking Election and of Sitting Elected Members of Parliament and State Legislatures

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5/9/24, 12:35 AM Law Relating To Elections - Chapter 4 - Qualifications and Disqualifications of Candidates Seeking Election And Of Sitting Ele…

Qualifications and Disqualifications of Candidates seeking Election and of Sitting Elected

Qualification is an eligibility to occupy certain position or post in any office; therefore, it is a

1. Original Petition No. 22 of 1987 before the Kerala High Court.

Discuss the qualifications for membership of Parliament and State Legislatures?

Qualification for Membership of Parliament and State Legislatures

(a) Citizen of India;

(a) Citizen of India;

Sine qua non Qualifications

(i) Person must be a Citizen of India

Constitutional Provisions for CiTizenship

Article Provisions Notes, if any

his domicile in the territory of India and— includes—

(a) who was born in the territory of (a) a prisoner;

in the territory of India; or forces

(c) who has been ordinarily resident (subject to the power of

in the territory of India for less Parliament to modify the

than five years, shall be a citizen rights as in Article 33)

of India immediately preceding

6. Rights of citizenship of certain persons

who have migrated to India from

7. Rights of citizenship of certain migrants

8. Rights of citizenship of certain persons

of Indian origin residing outside India

9. Person voluntarily acquiring citizenship

of a foreign State, he shall not be a

10. Every person who is a citizen of India

under any provisions of this Part, subject

to the provisions made by Parliament,

will continue to be such citizen

11. Parliament has power to make any

provision with respect to the acquisition

and termination of citizenship and all

other matters relating to citizenship

(ii) Oath or Affirmation

Oath or Affirmation to be made before Whom?

Oath & affirmation to be made before whom?

When oath or affirmation to be made?

1. MANU/SC/0033/1968 : AIR 1970 SC 765.

2. MANU/SC/0108/1968 : AIR 1968 SC 1064.

3. MANU/SC/0344/1979 : AIR 1980 SC 1358.

1. MANU/SC/0108/1968 : AIR 1968 SC 1064.

3. MANU/SC/0264/1969 : AIR 1969 SC 1034.

Discuss the manner to make or subscribe oath or affirmation.

Manner to Make or Subscribe Oath or Affirmation

Penalty for Sitting and Voting before Making Oath or Affirmation

1. MANU/TN/0238/1978 : AIR 1978 Mad 342.

2. MANU/UP/0030/1991 : AIR 1991 All 145.

(iii) Qualifying Age

To fill a seat in Minimum age of the candidate

Council of States 30 years

House of the People 25 years

For State Legislatures:

To fill a seat in Minimum age of the candidate

Legislative Council 30 years

Legislative Assembly 25 years

1. MANU/SC/0345/1968 : AIR 1968 SC 1455.

2. MANU/SC/0193/1960 : AIR 1960 SC 1049.

3. MANU/OR/0072/1982 : AIR 1982 Ori 221.

4. MANU/SC/0052/1988 : AIR 1988 SC 1796

Extracts from the Representation of the People Act, 1951

Section 3. Qualification for Membership of the Council of States

Section 4. Qualifications for Membership of the House of the People