Maarg Manthan · Topic 20.4

Qualification for Membership of the State Legislature (Article 173)

Indian Polity › State Legislature · Topic 20.4

A state legislator must be an Indian citizen, take the prescribed oath, be at least 25 (assembly) or 30 (council), and satisfy other qualifications; the Governor decides disqualification after the Election Commission’s opinion, and the presiding officer decides defection.

5 min read · UPSC Prelims · Polity · State Legislature

At a Glance

What it is Conditions and disqualifications for membership
Articles Article 173 (qualification), Article 191 (disqualification)
Age 30 for the council; 25 for the assembly
Oath Before the Governor or a person appointed by the Governor
Exam link UPSC Prelims, Polity: State Legislature

Where Does It Fit?

This is the fourth topic of the category on the State Legislature. The rules mirror those for Parliament, with differences in who decides and who administers the oath.

Qualifications

A person must be a citizen of India; must make and subscribe to an oath or affirmation before a person authorised by the Election Commission, swearing to bear true faith and allegiance to the Constitution and to uphold the sovereignty and integrity of India; must be not less than 30 years of age for the council and 25 years for the assembly; and must possess other qualifications prescribed by Parliament. The Representation of the People Act, 1951 adds: a person to be elected to the council must be an elector for an assembly constituency in the state, and to qualify for the Governor’s nomination must be resident in the state; a person to be elected to the assembly must be an elector for an assembly constituency in the state; and a person who wants to contest a seat reserved for SCs or STs must belong to that category, though they can also contest general seats.

Disqualifications

A person is disqualified from being chosen as, or being, a member if he or she holds an office of profit under the Union or state government (except a minister or an office exempted by the state legislature); is of unsound mind and so declared by a court; is an undischarged insolvent; is not a citizen or has voluntarily acquired foreign citizenship or acknowledged allegiance to a foreign state; or is disqualified under a law of Parliament. The 1951 Act adds grounds similar to those for Parliament: electoral offences and corrupt practices; conviction with imprisonment of two or more years (preventive detention is not a disqualification); failure to lodge election expenses; interest in government contracts; directorship or office of profit in a corporation with at least 25% government share; dismissal for corruption or disloyalty; conviction for promoting enmity or bribery; and punishment for social crimes such as untouchability, dowry and sati.

The Governor decides questions of disqualification, but must obtain the opinion of the Election Commission and act accordingly. On the ground of defection under the Tenth Schedule, the Chairman (council) or Speaker (assembly) decides, not the Governor, and in Kihoto Hollohan (1992) the Supreme Court ruled that the decision is subject to judicial review.

Oath, Penalty and Pay

These rules mirror the position in Parliament, with the Governor in place of the President and the state legislature in place of Parliament for matters such as salaries and allowances. Every member must make and subscribe an oath or affirmation before the Governor or some person appointed by the Governor before taking the seat, swearing to bear true faith and allegiance to the Constitution, to uphold the sovereignty and integrity of India and to faithfully discharge the duty of the office. Unless the oath is taken, the member cannot vote or participate and does not enjoy privileges and immunities. A person is liable to a penalty of Rs 500 per day of sitting or voting before taking the oath, or when he or she knows of his disqualification or prohibition by law. Members receive such salaries and allowances as the state legislature determines.

Vacating a Seat

Ground	Rule
Double membership	Not in both Houses; if elected to both, one seat falls vacant under a law made by the state legislature
Disqualification	Seat becomes vacant, including on the Tenth Schedule
Resignation	In writing to the Chairman or Speaker; the seat falls vacant when accepted
Absence	House can declare the seat vacant if absent from all meetings for sixty days without permission
Other cases	Election declared void by the court; expulsion by the House; election as President or Vice-President; appointment as Governor

Why Is This Topic Important?

Comparison with Parliament Differences in authority are asked
Age facts 30 and 25
Disqualification list Same as Parliament

What Came Next?

The next topic covers sessions, prorogation and dissolution of the state legislature.

Key People and Terms

Elector Registered voter
Office of profit Paid government position
Tenth Schedule Anti-defection law
Penalty Rs 500 per day
Vacation of seat Ending of membership

Exam Corner

Points to Remember

30 (council) and 25 (assembly).
Oath before the Governor.
Disqualification decided by the Governor on the EC’s opinion.
Defection decided by the Speaker or Chairman.

Do Not Confuse With

State and Union authority Governor versus President; Speaker/Chairman versus Speaker/Chairman
Council and assembly qualifications 30 versus 25
Qualifications and disqualifications Article 173 versus 191

Memory Hook

Thirty for the council, twenty-five for the assembly; the Governor swears and decides, the Speaker rules on defection.

Mains Angle

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

Parallel rules Mirrors Parliament
Governor and EC Decision with advice
Defection Presiding officer; judicial review
Absence rule 60 days

A Question You May Face

An original practice question, not a past paper question.

“What are the qualifications and disqualifications for membership of the state legislature?”

How to Answer

Introduction Articles 173 and 191.
Qualifications Age and elector.
Disqualifications Constitutional and statutory.
Conclusion Defection and vacancy.

GS Relevance

Prelims: Indian Polity, state legislature. GS Paper 2: State legislature.

Frequently Asked Questions

What is the minimum age for the legislative assembly and council?

The minimum age is 25 years for the legislative assembly and 30 years for the legislative council. The person must also be a citizen of India and take the prescribed oath before a person authorised by the Election Commission.

Who decides disqualification of a member of the state legislature?

The Governor decides questions of disqualification, but must obtain the opinion of the Election Commission and act accordingly. For defection under the Tenth Schedule, the Speaker or Chairman decides, subject to judicial review. The Governor’s decision is final.

Who administers the oath to a state legislator?

Every member takes an oath or affirmation before the Governor or some person appointed by the Governor before taking a seat. Without the oath the member cannot vote, take part in proceedings or enjoy privileges and immunities.

When can a House declare a member’s seat vacant?

A House can declare the seat of a member vacant if the member is absent from all its meetings for a period of sixty days without permission, in addition to cases of disqualification, resignation, expulsion and election being declared void by a court.

What additional qualification applies to the legislative council?

A person elected to the council must be an elector for an assembly constituency in the state, and to be qualified for the Governor’s nomination, must be a resident of the state, as the Representation of the People Act, 1951 provides.

PYQ Practice — Statement Analysis

1 The minimum age for the legislative council is 25 years.

False

30 years.

2 The Governor decides disqualification after consulting the Election Commission.

True

And acts on its opinion.

3 The Tenth Schedule disqualification is decided by the Governor.