Part VI: The States

State Legislature: Disqualifications

Article 192: Decision on Questions as to Disqualifications of Members

--- Original Article ---

(1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of article 191, the question shall be referred for the decision of the Governor and his decision shall be final.

(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.

Explanations

Article 192 empowers the Governor of a State to make decisions regarding the disqualification of members of the State Legislature. This power is structured to ensure objectivity, with the Governor required to consult the Election Commission and act according to its opinion. This framework upholds impartiality and aligns disqualification procedures with constitutional values, preventing legislative interference.

Clause-by-Clause Explanation

Clause (1): Authority of the Governor

This clause grants the Governor final authority in deciding whether a legislative member has become disqualified. It ensures that disqualification issues are resolved within a defined legal framework and removes such decisions from potential legislative influence.

Clause (2): Consultation with the Election Commission

This clause mandates that the Governor must consult the Election Commission before making a decision and adhere to its opinion. This requirement strengthens the objectivity and impartiality of the disqualification process by involving an independent constitutional body.

Real-Life Examples

• Example of Office of Profit: In 2020, a legislator was accused of holding an office of profit by accepting a government-appointed role with salary. The Governor, after consultation with the Election Commission, ruled that the position constituted an office of profit, leading to disqualification.

Historical Context

The Forty-Second and Forty-Fourth Amendments revised Article 192 to enhance procedural consistency in disqualification matters, requiring the Governor to act according to the Election Commission’s opinion. These amendments reflect the importance of independent, non-partisan oversight in maintaining legislative integrity.

Judicial Interpretation and Precedents

In Kihoto Hollohan v. Zachillhu (1992), the Supreme Court affirmed the necessity of the Governor's reliance on the Election Commission’s opinion, reinforcing the importance of impartiality in the disqualification process. This case highlighted Article 192 as a means of upholding integrity and avoiding legislative conflicts of interest.

Debates and Amendments

During the debates on Article 167-A (later Article 192), members discussed the importance of impartiality in handling disqualification matters:

Shri B. A. Mandloi suggested empowering the Speaker or Chairman of the House to resolve disqualification issues to streamline decision-making, though this proposal was ultimately not accepted. The Assembly preferred placing such authority with the Governor, an executive authority removed from the legislature’s direct influence.

Shri T. T. Krishnamachari proposed involving the Election Commission in these decisions to ensure unbiased outcomes. His proposal was adopted, establishing that the Governor must consult the Election Commission and abide by its opinion.

Kazi Syed Karimuddin and Prof. Shibban Lal Saksena supported the Election Commission’s role, arguing that it was essential for preventing partisan bias. They contended that decisions regarding disqualification should not be left to legislative leaders who may have political motivations.

Ultimately, the Assembly adopted the framework mandating the Governor to consult the Election Commission, with this provision aimed at securing impartiality and consistency in disqualification procedures, thereby safeguarding the integrity of the legislative process.

References

• The Constitution of India - Article 192, Decision on Questions as to Disqualifications of Members.
• Kihoto Hollohan v. Zachillhu (1992).
• Constituent Assembly Debates on Article 167-A (Draft Constitution).
• Basu, D.D. "Commentary on the Constitution of India".