Maarg Manthan · Topic 16.14

Disqualifications of Members of Parliament (Articles 101–104)

Indian Polity › Parliament · Topic 16.14

An MP is disqualified for office of profit, unsound mind, insolvency, loss of citizenship, grounds under the RP Act, or defection under the Tenth Schedule; the President decides on the Election Commission’s opinion, and the Speaker or Chairman on defection.

5 min read · UPSC Prelims · Polity · Parliament

At a Glance

What it is The grounds on which a person cannot be, or ceases to be, a member
Articles Articles 101 to 104 and the Tenth Schedule
Decider The President, on the Election Commission’s opinion (defection: the presiding officer)
Defection Tenth Schedule, judicially reviewable
Exam link UPSC Prelims, Polity: Parliament

Where Does It Fit?

This is the last topic of the category on Parliament. The Constitution lists the grounds for disqualification, and the Representation of the People Act, 1951 adds more. The Tenth Schedule deals with defection.

Constitutional Disqualifications

Holding any office of profit under the Union or state government, except that of a minister or other offices exempted by Parliament.
Being of unsound mind and so declared by a court.
Being an undischarged insolvent.
Not being a citizen of India, or having voluntarily acquired citizenship of a foreign state, or being under acknowledgement of allegiance to a foreign state.
Being disqualified under any law made by Parliament.

Additional Grounds Under the Representation of the People Act, 1951

Having been found guilty of certain electoral offences or corrupt practices.
Having been convicted of an offence resulting in imprisonment for two or more years; preventive detention is not a disqualification.
Failing to lodge an account of election expenses within the time.
Having any interest in government contracts, works or services.
Being a director or managing agent, or holding an office of profit, in a corporation in which the government has at least 25% share.
Having been dismissed from government service for corruption or disloyalty to the State.
Having been convicted for promoting enmity between groups or for bribery.
Having been punished for preaching and practising social crimes such as untouchability, dowry and sati.

On the question of any such disqualification, the President’s decision is final, but the President must obtain the opinion of the Election Commission and act accordingly.

Disqualification on Ground of Defection

A person is disqualified from being a member if disqualified for defection under the Tenth Schedule. A member incurs disqualification: if voluntarily giving up membership of the political party on whose ticket elected; if voting or abstaining from voting in the House contrary to a direction of the party; if an independently elected member joins a political party; and if a nominated member joins a party after six months. The question is decided by the Chairman in the Rajya Sabha and the Speaker in the Lok Sabha, not the President. In Kihoto Hollohan (1992) the Supreme Court ruled that the decision is subject to judicial review.

Oath and Penalty Linked to Membership

Every member must take an oath or affirmation before the President or a person appointed by the President before taking a seat in the House. Until the oath is taken, the member cannot vote or participate in proceedings and does not become eligible for privileges and immunities. A person is liable to a penalty of Rs 500 for each day of sitting or voting before taking the oath, when knowing that he or she is not qualified or is disqualified, or when prohibited by a parliamentary law. These provisions complement the grounds of disqualification and are meant to keep the House free of persons who are not entitled to sit.

The Constitution also provides that the question of disqualification on the ground of defection under the Tenth Schedule is decided by the presiding officer. This is an exception to the general rule that the President decides disqualification after consulting the Election Commission. The Tenth Schedule gives the decision to the Chairman in the Rajya Sabha and the Speaker in the Lok Sabha.

Vacating Seats

Ground	Rule
Double membership	Not both Houses, and not Parliament and a state legislature; options within 10 days (Houses) or 14 days (state legislature)
Disqualification	Seat falls vacant if any ground, including the Tenth Schedule, applies
Resignation	In writing to the Chairman or Speaker; can be refused if not voluntary or genuine
Absence	Absence from all meetings for 60 days without permission; prorogued or adjourned periods over four consecutive days are excluded
Other cases	Election declared void by the court; expulsion by the House; election as President or Vice-President; appointment as Governor

If a disqualified person is elected, the Constitution lays down no procedure to declare the election void; the Representation of the People Act, 1951 enables the High Court to do so, with an appeal to the Supreme Court. A person who sits or votes knowing that he or she is disqualified is liable to a penalty of Rs 500 per day.

Why Is This Topic Important?

Every year Disqualification grounds are asked directly
Tenth Schedule Defection law
Link to 16.3 Qualification versus disqualification

What Came Next?

The next category covers the higher judiciary, starting with the Supreme Court.

Key People and Terms

Office of profit Paid government position
Undischarged insolvent Not cleared of insolvency
Tenth Schedule Anti-defection law
Kihoto Hollohan 1992 case; judicial review of presiding officer
Double membership Holding two seats

Exam Corner

Points to Remember

President decides after the Election Commission’s opinion.
Defection: Chairman or Speaker, subject to judicial review.
Absence for 60 days vacates the seat.
Two years’ imprisonment disqualifies; preventive detention does not.

Do Not Confuse With

President and Speaker deciding Ordinary grounds versus defection
10 days and 14 days Two Houses versus Parliament and a state legislature
Nominated member rule Six months to join a party

Memory Hook

Profit, mind, money, loyalty, law; two years inside; and the party whip under the Tenth Schedule.

Mains Angle

Questions on this topic usually ask about defection and criminalisation. Use these points to add depth.

Constitutional and statutory grounds Parliament adds conditions
Defection Presiding officer decides; reviewable
Role of the Election Commission Opinion binds the President
Vacating seats Multiple routes

A Question You May Face

An original practice question, not a past paper question.

“Discuss the grounds of disqualification of members of Parliament, including defection.”

How to Answer

Introduction Articles 101 to 104.
Grounds Constitutional and statutory.
Defection Tenth Schedule.
Conclusion Judicial review.

GS Relevance

Prelims: Indian Polity, Parliament. GS Paper 2: Parliament and anti-defection law.

Frequently Asked Questions

What are the constitutional grounds for disqualification of an MP?

A person is disqualified for holding an office of profit under the Union or a state, being of unsound mind declared by a court, being an undischarged insolvent, not being a citizen or acquiring foreign citizenship, or being disqualified under a law of Parliament.

Who decides the disqualification of a member of Parliament?

The President decides, but must obtain the opinion of the Election Commission and act accordingly, and the President’s decision is final. For disqualification on the ground of defection, the Chairman or Speaker decides, not the President.

What is disqualification on the ground of defection?

Under the Tenth Schedule, a member is disqualified for voluntarily giving up party membership, for voting or abstaining against the party direction, for an independent member joining a party, or for a nominated member joining a party after six months.

Is the Speaker’s decision on defection final?

No. In Kihoto Hollohan (1992), the Supreme Court ruled that the decision of the Chairman or Speaker on disqualification under the Tenth Schedule is subject to judicial review by the courts, so an aggrieved member can approach the High Court or Supreme Court.

When does a member vacate a seat?

A member vacates a seat on holding two seats, on disqualification, on resignation accepted by the presiding officer, on absence from all meetings for 60 days without permission, on the election being declared void, on expulsion, or on becoming President, Vice-President or Governor.

PYQ Practice — Statement Analysis

1 Preventive detention disqualifies a person from Parliament.

False

It is not a ground.

2 The Speaker decides defection disqualification in the Lok Sabha.

True

Subject to review.

3 A member absent for 60 days without permission can have his seat declared vacant.