Disqualifications and Vacating of Seats in Parliament

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Under the Constitution, a person shall be disqualified for being elected as a member of Parliament:

1.       if he holds any office of profit under the Union or state government (except that of a minister or any other office exempted by Parliament).8

2.       if he is of unsound mind and stands so declared by a court.

3.       if he is an undischarged insolvent.

4.       if he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance to a foreign state; and

5.       if he is so disqualified under any law made by Parliament.

The Parliament has laid down the following additional disqualifications in the Representation of People Act (1951);

                                             i.            He must not have been found guilty of certain election offences or corrupt practices in the elections.

                                           ii.            He must not have been convicted for any offence resulting in imprisonment for two or more years. But, the detention of a person under a preventive detention law is not a disqualification.

                                         iii.            He must not have failed to lodge an account of his election expenses within the time.

                                         iv.            He must not have any interest in government contracts, works or services.

                                           v.            He must not be a director or managing agent nor hold an office of profit in a corporation in which the government has at least 25 per cent share.

                                         vi.            He must not have been dismissed from government service for corruption or disloyalty to the State.

                                        vii.            He must not have been convicted for promoting enmity between different groups or for the offence of bribery.

                                      viii.            He must not have been punished for preaching and practicing social crimes such as untouchability, dowry and sati.

On the question whether a member is subject to any of the above disqualifications, the president’s decision is final. However, he should obtain the opinion of the election commission and act accordingly.

Disqualification on Ground of Defection

The Constitution also lays down that a person shall be disqualified from being a member of Parliament if he is so disqualified on the ground of defection under the provisions of the Tenth Schedule. A member incurs disqualification under the defection law:

1.       if he voluntary gives up the membership of the political party on whose ticket he is elected to the House;

2.       if he votes or abstains from voting in the House contrary to any direction given by his political party;

3.       if any independently elected member joins any political party; and

4.       if any nominated member joins any political party after the expiry of six months.

The question of disqualification under the Tenth Schedule is decided by the Chairman in the case of Rajya Sabha and Speaker in the case of Lok Sabha (and not by the president of India). In 1992, the Supreme Court ruled that the decision of the Chairman/Speaker in this regard is subject to judicial review.

Vacating of Seats

In the following cases, a member of Parliament vacates his seat.

1. Double Membership

A person cannot be a member of both Houses of Parliament at the same time.

Thus, the Representation of People Act (1951) provides for the following:

(a) If a person is elected to both the Houses of Parliament, he must intimate within 10 days in which House he desires to serve. In default of such intimation, his seat in the Rajya Sabha becomes vacant.

(b) If a sitting member of one House is also elected to the other House, his seat in the first House becomes vacant.

(c) If a person is elected to two seats in a House, he should exercise his option for one.

Otherwise, both seats become vacant.

Similarly, a person cannot be a member of both the Parliament and the state legislature at the same time. If a person is so elected, his seat in Parliament becomes vacant if he does not resign his seat in the state legislature within 14 days9.

2. Disqualification

If a member of Parliament becomes subject to any of the disqualifications specified in the Constitution, his seat becomes vacant. Here, the list of disqualifications also include the disqualification on the grounds of defection under the provisions of the Tenth Schedule of the Constitution.

3. Resignation

A member may resign his seat by writing to the Chairman of Rajya Sabha or Speaker of Lok Sabha, as the case may be. The seat falls vacant when the resignation is accepted. However, the Chairman/Speaker may not accept the resignation if he is satisfied that it is not voluntary or genuine.

4. Absence

A House can declare the seat of a member vacant if he is absent from all its meetings for a period of sixty days without its permission. In computing the period of sixty days, no account shall be taken of any period during which the House is prorogued or adjourned for more than four consecutive days.

5. Other cases

A member has to vacate his seat in the Parliament:

(a)    if his election is declared void by the court;

(b)    if he is expelled by the House;

(c)     if he is elected to the office of President or Vice-President; and

(d)    if he is appointed to the office of governor of a state.

If a disqualified person is elected to the Parliament, the Constitution lays down no procedure to declare the election void. This matter is dealt by the Representation of the People Act (1951), which enables the high court to declare an election void if a disqualified candidate is elected. The aggrieved party can appeal to the Supreme Court against the order of the high court in this regard.