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Description: Explore Article 102 of the Constitution and the Representation of The People Act's provisions for disqualifying Members of Parliament. Learn about significant Supreme Court judgments that have shaped the criteria for disqualification.

Disqualification of Member of parliament

Article 102 of the Constitution deals with grounds for disqualification of a parliamentarian.

  A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament

•  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;

•  if he is of unsound mind and stands so declared by a competent court;

•  if he is an undischarged insolvent;

•  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 or adherence to a foreign State;

•  if he is so disqualified by or under any law made by Parliament Explanation For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State

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

Sub-clause (e) of Article 102(1) says an MP will lose his membership of the House “if he is so disqualified by or under any law made by Parliament”. The law in this case is the RP Act.

About the RP Act

There are several provisions that deal with disqualification under the RPA.

  First, disqualification is triggered for conviction under certain offences listed in Section 8(1) of The Representation of The People Act. This includes specific offences such as promoting enmity between two groups, bribery, and undue influence or personation at an election. Senior Samajwadi Party leader Azam Khan lost his Uttar Pradesh Assembly membership in October 2022 after he was convicted in a hate speech case. Defamation does not fall in this list.

  Section 8(2) also lists offences that deal with hoarding or profiteering, adulteration of food or drugs and for conviction and sentence of at least six months for an offence under any provisions of the Dowry Prohibition Act.

  Section 8(3) states: “A person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.” This is the provision under which Rahul Gandhi has been disqualified.

  The disqualification can be reversed if a higher court grants a stay on the conviction or decides the appeal in favour of the convicted lawmaker. Significantly, the stay cannot merely be a suspension of sentence under Section 389 of the Code of Criminal Procedure (CrPC), but a stay of conviction.

Important Supreme Court Judgements:

  2002– Union Of India (UOI) V. Association For Democratic Reforms: The SC Held That Every Candidate, Contesting An Election To The Parliament, State Legislatures, Or Municipal Corporation, Has To Declare Their Criminal Records, Financial Records, And Educational Qualifications Along With Their Nomination Paper.

  2005- Ramesh Dalal Vs. Union Of India: The SC Held That A Sitting MP Or MLA Shall Also Be Subject To Disqualification From Contesting Elections If He Is Convicted And Sentenced To Not Less Than 2 Years Of Imprisonment By A Court Of Law.

  2013- In Lily Thomas V. Union Of India: The SC Held That Section 8(4) Of The Representation Of The People Act, 1951 Is Unconstitutional Which Allows MPs And MLAs Who Are Convicted To Continue In Office Till An Appeal Against Such Conviction Is Disposed Of.

  The Court Held That MP/MLA Convicted For Two Years Or Above Would Be Disqualified Immediately.

  2015 – Krishnamurthy V. Sivakumar & Ors: The SC Held That Disclosure Of Criminal Antecedents (Especially Heinous Crimes) Of A Candidate At The Time Of Filing Of Nomination Paper As Mandated By Law Was A Categorically Imperative.