Introduction
A Member of the Legislative Assembly (MLA) is elected to represent the people of a State in India. The conditions for becoming an MLA and the grounds on which a person may be disqualified from membership are laid down primarily in the Constitution of India, the Representation of the People Act, 1951, and related laws. These provisions ensure that elected representatives remain accountable and that the integrity and dignity of the legislature are protected.
Constitutional Grounds for Disqualification
Article 191 of the Constitution lays down the basic grounds on which a person is disqualified from being chosen as, or from continuing as, a member of the Legislative Assembly or Legislative Council of a State.
Article 191(1) provides that a person shall be disqualified if he or she:
- Holds an office of profit under the Government of India or the Government of any State (other than an office specifically exempted by a law of the State Legislature). The purpose is to prevent a conflict of interest between the duties of a legislator and those of a government office-holder. Ministers are expressly protected by an Explanation and are not considered to hold an office of profit.
- Is of unsound mind and has been so declared by a competent court.
- Is an undischarged insolvent (i.e., has been declared bankrupt and has not yet been discharged by the court).
- 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.
- Is disqualified by or under any law made by Parliament.
This clause incorporates additional statutory grounds enacted by Parliament, principally those contained in the Representation of the People Act, 1951 (such as conviction for certain offences, corrupt practices, etc.).
Article 191(2) further provides that a person shall also be disqualified if he or she incurs disqualification under the Tenth Schedule (the anti-defection law). This is a distinct and independent ground that operates alongside the grounds listed in clause (1).
Disqualification Under the Representation of the People Act, 1951
Apart from the constitutional grounds in Article 191, the Representation of the People Act, 1951 lays down additional statutory grounds of disqualification for membership of Parliament and State Legislatures. The main provisions are:
Conviction for Certain Offences (Section 8)
A person convicted of specified serious offences (such as promoting enmity, certain sexual offences, corruption, terrorism-related offences, etc.) is disqualified.
- If sentenced only to a fine → disqualified for six years from the date of conviction.
- If sentenced to imprisonment → disqualified from the date of conviction and for a further six years after release.
For any other offence, a sentence of imprisonment of two years or more triggers the same rule: disqualification from the date of conviction plus six years after release.(Note: The earlier three-month grace period for sitting members was struck down by the Supreme Court in Lily Thomas v. Union of India, 2013; disqualification is now immediate.)
Corrupt Practices in Elections (Section 8A)
If a person is found guilty of a corrupt practice by a court in an election petition, the case is referred to the President. The President, acting on the opinion of the Election Commission, decides whether the person should be disqualified and for how long (maximum six years from the date the court order takes effect).
Dismissal From Government Service (Section 9)
A person dismissed from service under the Central or State Government on grounds of corruption or disloyalty to the State is disqualified for five years from the date of dismissal.
Government Contracts (Section 9A)
A person who has a subsisting contract with the appropriate government for the supply of goods or for the execution of any works is disqualified for as long as the contract continues.
Office in a Government Company (Section 10)
Holding the post of managing agent, manager or secretary of a company in which the government holds at least 25% of the share capital leads to disqualification for as long as the person holds that office.
Failure to Lodge Election Expenses (Section 10A)
A candidate who fails to submit the account of election expenses within the prescribed time and without a valid reason can be disqualified by the Election Commission for three years.
The prescribed time is 30 days from the date of election of the returned candidate (i.e., the date on which the result is declared).
This is laid down in Section 78 of the Representation of the People Act, 1951. Every contesting candidate must lodge a true copy of their election expenses account with the District Election Officer within these 30 days.
(If the 30th day falls on a Sunday or public holiday when the office is closed, the account may be lodged on the next working day.)
The Tenth Schedule (Anti-Defection Law)
Inserted by the 52nd Constitutional Amendment Act, 1985, the Tenth Schedule prevents MPs and MLAs from defecting for personal or political gain. Its aim is to protect the stability of elected governments and the integrity of the electoral mandate.
A member is disqualified if they:
- Voluntarily give up membership of the party on whose ticket they were elected
- Vote or abstain against a party whip without prior permission, and the party does not condone the act within 15 days
- Join a political party after being elected as an independent
- Join a political party more than six months after taking their seat as a nominated member
Key Exceptions (No Disqualification)
- At least two-thirds of the members of a legislative party agree to merge with another party
- A member resigns from their party upon being elected Speaker or Chairman
The Speaker (or Chairman) decides questions of disqualification. Following the Supreme Court’s judgment in Kihoto Hollohan v. Zachillhu (1992), these decisions are subject to judicial review by the High Courts and the Supreme Court.
Who Decides Disqualification?
Disqualification of MLAs is decided by different authorities depending on the ground involved:
Under Article 191(1)
Under Article 191(1) (office of profit, unsound mind, insolvency, loss of citizenship, or other grounds prescribed by Parliament):
The question is referred to the Governor. Before deciding, the Governor must obtain the opinion of the Election Commission of India and is bound to act according to that opinion (Article 192). The Governor’s decision is final, though it can be challenged in court on limited grounds.
Under the Tenth Schedule (Defection / Anti-Defection Cases)
The Speaker of the Legislative Assembly (or Chairman of the Legislative Council) decides the matter. Their decision functions as a quasi-judicial tribunal and is subject to judicial review by the High Court and the Supreme Court, as held in Kihoto Hollohan v. Zachillhu (1992).
Under the Representation of the People Act, 1951
Under the Representation of the People Act, 1951 (mainly conviction for certain offences): Disqualification is generally automatic once the conviction and sentence meet the legal threshold (for example, imprisonment of two years or more under Section 8). Where a dispute arises, the matter is handled through the constitutional process under Article 192 (Governor acting on the Election Commission’s opinion) or through election petitions and related legal proceedings.
Consequences of Disqualification
Once a member is disqualified under the Tenth Schedule, their seat in the House becomes vacant immediately. They cease to be an MP or MLA from that moment and lose all associated rights and positions, including any ministerial post or committee membership.
Under the 91st Constitutional Amendment Act, 2003, a person disqualified for defection cannot be appointed as a Minister (at the Centre or in a State) until they are re-elected to the legislature. This prevents defectors from being rewarded with ministerial positions without facing the electorate again.
Importantly, disqualification under the anti-defection law does not permanently bar the person from contesting elections. They remain free to contest the resulting by-election or any future election. The Supreme Court has clarified that the Speaker or Chairman cannot impose an additional ban on contesting for the remaining term of the House.
Penalty for Sitting or Voting While Disqualified
Article 193 of the Constitution provides that if a person sits or votes in a State Legislature knowing that they are not qualified or are disqualified, they are liable to a penalty of ₹500 for each day they do so. This amount is recoverable as a debt due to the State. (A similar provision exists for Parliament under Article 104.)
Important Supreme Court Case Laws
In Kihoto Hollohan v. Zachillhu (1992), the Supreme Court upheld the constitutional validity of the Tenth Schedule (anti-defection law) and held that the Speaker’s decision on disqualification is subject to judicial review. In Ravi S. Naik v. Union of India (1994), the Court clarified that “voluntarily giving up membership” of a party can be inferred from a member’s conduct even without a formal resignation.
In Lily Thomas v. Union of India (2013), the Court struck down Section 8(4) of the Representation of the People Act, 1951, making disqualification on criminal conviction immediate for sitting MPs and MLAs.
Section 8(4) of the Representation of the People Act, 1951
Section 8(4) of the Representation of the People Act, 1951: Section 8(4) formerly provided that a sitting Member of Parliament (MP) or Member of a State Legislature (MLA), upon conviction for certain offences under Sections 8(1), 8(2) or 8(3), would not incur disqualification for three months from the date of conviction, allowing time to appeal. If an appeal or revision was filed within that period, the protection continued until its disposal.
However, in Lily Thomas v. Union of India (2013), the Supreme Court of India declared Section 8(4) unconstitutional, holding that sitting legislators could not enjoy special protection against disqualification. Consequently, a legislator who incurs disqualification under the applicable provisions is subject to it from the legally prescribed date, and merely filing an appeal does not automatically suspend the disqualification; a court order staying the conviction may affect this consequence.
In Nabam Rebia v. Deputy Speaker (2016), it ruled that a Speaker facing a removal motion cannot decide disqualification petitions, and in Keisham Meghachandra Singh v. Speaker (2020), it directed that such petitions should ordinarily be decided within three months.
Vulnerabilities in the Anti-Defection Law in India
The Anti-Defection Law under the Tenth Schedule, inserted by the 52nd Constitutional Amendment Act, 1985, sought to end political defections and stabilise legislatures. In practice, however, several structural flaws continue to undermine it.
Speakers routinely delay disqualification petitions, often for months or years. When the Speaker belongs to a party locked in the dispute, the risk of bias is obvious. The merger exception in Paragraph 4 still shields any group of two-thirds of a legislature party that joins another party—creating an easy route for engineered defections. Legislators also resign strategically to dodge the law, while bitter fights over who constitutes the “real” party and who may issue a valid whip further erode certainty.
Although the one-third split loophole was closed by the 91st Amendment in 2003, the two-thirds merger rule remains wide open to manipulation. Courts have tried to plug the gaps: Kihoto Hollohan (1992) subjected Speaker decisions to judicial review, and Subhash Desai (2023) clarified party identity, legislative strength and the authority to issue whips. Yet judicial correction is slow and case-specific.
Effective reform requires strict statutory timelines for Speakers, an independent adjudicatory body, tighter merger criteria, and a narrower whip that leaves room for genuine legislative dissent. The core dilemma remains unchanged: how to stop opportunistic defections without extinguishing democratic accountability and the freedom of elected representatives to vote their conscience.
Conclusion
These disqualification rules protect the honesty, accountability and credibility of democratic institutions. They stop people who do not meet the required standards or who break the law from holding legislative office. The basic idea is simple: the right to represent the people must always follow the Constitution and the law.
