Part V: The Union

Disqualifications of Members

Article 102: Disqualifications for Membership

--- Original Article ---

(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament—

• (a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;
• (b) if he is of unsound mind and stands so declared by a competent court;
• (c) if he is an undischarged insolvent;
• (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;
• (e) if he is so disqualified by or under any law made by Parliament.

(2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.

--- Amendments ---

• The original Article 102(1)(a) was amended by the Constitution (Forty-second Amendment) Act, 1976, but this was reversed by the Forty-fourth Amendment Act, 1978.
• Subsequent amendments included provisions from the Constitution (Fifty-second Amendment) Act, 1985, linking disqualifications to anti-defection laws under the Tenth Schedule.

Explanation

Article 102 of the Constitution of India establishes the conditions under which a person may be disqualified from being chosen as, or serving as, a member of either House of Parliament. These disqualifications include holding an office of profit, being of unsound mind, being an undischarged insolvent, not being a citizen of India, or being disqualified by law. Additionally, the Tenth Schedule disqualifies members on grounds of defection.

Clause-by-Clause Breakdown

• Office of Profit: If a person holds an office of profit under the Government, they are disqualified unless Parliament declares otherwise. This clause prevents conflicts of interest, ensuring public representatives act without external influence.
• Unsound Mind: Those declared of unsound mind by a competent court are disqualified, ensuring that members are capable of fulfilling their legislative duties.
• Undischarged Insolvent: Individuals who are undischarged insolvents are disqualified to maintain the financial integrity of Parliament.
• Citizenship: Only Indian citizens can serve in Parliament. This clause ensures allegiance to India, and disqualifies those who have acquired foreign citizenship.
• Anti-Defection Law: Introduced by the Fifty-second Amendment, members disqualified under the Tenth Schedule for defection cannot serve in Parliament.

Real-Life Examples

• Jaya Bachchan’s Disqualification (2006): Disqualified from Rajya Sabha for holding an office of profit as Chairperson of the Uttar Pradesh Film Development Council.
• AAP MLAs Case (2017): AAP MLAs faced disqualification for holding positions as parliamentary secretaries, invoking the office of profit clause.
• Defection in Madhya Pradesh (2020): 24 MLAs defected from the ruling coalition, resulting in disqualification under the anti-defection law.

Historical Significance

The inclusion of Article 102 reflects the framers' intent to maintain the integrity and competence of Parliament. The addition of the Tenth Schedule in 1985, particularly the anti-defection law, was a significant development to curb political instability and ensure party discipline in India’s parliamentary system.

Legislative History

Article 102 of the Indian Constitution was originally formulated and debated as Article 83 in the Draft Constitution and incorporated into the Constitution in 1949. Significant amendments, including the Forty-second, Forty-fourth, and Fifty-second Amendments, have shaped its current form, addressing concerns like office of profit and defection.

--- Amendments ---

• The Constitution (Forty-second Amendment) Act, 1976: This amendment substituted clause (a) of Article 102(1), stating that an individual would be disqualified if they held "any office of profit under the Government of India or any State" unless Parliament declared by law that the office did not disqualify its holder. However, this amendment was later reversed by the Forty-fourth Amendment Act of 1978.
• The Constitution (Forty-fourth Amendment) Act, 1978: Reversed the changes made by the Forty-second Amendment, restoring the original text of Article 102(1)(a).
• The Constitution (Fifty-second Amendment) Act, 1985: Introduced the anti-defection law, adding clause (2) to Article 102, which disqualified members based on the provisions of the Tenth Schedule, primarily addressing political defections and ensuring party discipline.

Debates and Deliberations

During the Constituent Assembly debates, several amendments were proposed regarding Article 102 (originally Article 83 in the Draft Constitution). Dr. B. R. Ambedkar introduced changes to sub-clause (d), suggesting that a person should be disqualified if they ceased to be a citizen of India or voluntarily acquired the citizenship of another country. This reflected the importance of undivided loyalty to India.

Shri H. V. Kamath proposed deleting certain parts of sub-clause (d), arguing that the term "acknowledgment of allegiance or adherence to a foreign State" was sufficient, and additional wording was unnecessary. However, the Assembly decided to retain the original wording for clarity and specificity.

Mr. Naziruddin Ahmad opposed the inclusion of sub-clause (e), which allowed Parliament to create further disqualifications through legislation. He believed that disqualifications should be explicitly mentioned in the Constitution to avoid potential misuse by ruling political parties. His concern was that it could give too much power to future Parliaments. However, the Assembly trusted that future legislative actions would be subject to public scrutiny and oversight.

Similarly, Prof. Shibban Lal Saksena suggested replacing sub-clause (e) with specific provisions that disqualified members based on criminal convictions, election offenses, and non-reporting of election expenses. This was rejected as the Assembly believed Parliament should have the flexibility to define disqualifications through laws.

One more critical amendment came from Shri Rohini Kumar Chaudhuri, who expressed concern over sub-clause (b) regarding the mental state of candidates. He proposed stricter definitions to prevent mentally unsound individuals from participating in elections, even if they hadn't been legally declared as such. Despite these concerns, the Assembly moved forward with the draft as it stood.

Ultimately, the final draft of Article 102 reflected a balance between constitutional clarity and the need for future legislative flexibility. It allowed for high standards of representation, protecting the democratic integrity of Parliament.