State Legislature – Qualifications of Members
- Article 173 - A person shall not be qualified to be chosen to fill a seat in the state Legislature unless he
- is a citizen of India, and makes and subscribes before some person authorized in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule;
- is, in the case of a seat in the Legislative Assembly, not less than twenty-five years of age and in the case of a seat in the Legislative Council, not less than thirty years of age; and
- possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament
Page-9: In Brief- Fix minimum qualification for MPs, MLAs: Haryana (Dec 2) The Haryana government has written to the Centre to fix minimum qualification for MPs and MLAs for contesting elections. The State government’s earlier decision to fix minimum qualification for panchayat representatives had received widespread praise. Question. Do you think that educated politicians make good legislators? Analyze the pros and cons of making educational qualification a necessary requirement. State Legislature – Oath
- Additional qualifications for Legislative Assembly as per Representation of People Act (1951)
- A person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless
- in the case of a seat reserved for the Scheduled Castes or for the Scheduled Tribes of that State, he is a member of any of those castes or of those tribes, as the case may be, and is an elector for any Assembly constituency in that State;
- in the case of any other seat, he is an elector for any Assembly constituency in that State
- Additional qualifications for Legislative Council as per Representation of People Act (1951)
- A person shall not be qualified to be chosen to fill a seat in the Legislative Council of a State to be filled by election unless he is an elector for any Assembly constituency in that State.
- A person shall not be qualified to be chosen to fill a seat in the Legislative Council of a State to be filled by nomination by the Governor unless he is ordinarily resident in the State.
(a) To bear true faith and allegiance to the Constitution of India; (b) To uphold the sovereignty and integrity of India; and (c) To faithfully discharge the duty of his office.
- Article 188
- Every member of the Legislative Assembly or the Legislative Council of a State shall, before taking his seat, make and subscribe before the Governor, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.
- A member of the State Legislature swears to
State Legislature – Disqualifications of Members
- Unless a member takes the oath to the State Legislature, he is not considered a member in the true sense which means he cannot participate or vote in the state legislature and has no privileges and immunities given to members of the state legislature.
- Article 191
- A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State
- if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State 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 acknowledgment of allegiance or adherence to a foreign State;
- If he is so disqualified by or under any law made by Parliament.
Page-2: Meghalaya Governor seeks EC opinion.
- Explanation- For the purpose of this clause a person shall not be deemed to hold any office of profit under Government of Indian or the Government of any State specified in the First Schedule 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 the Legislative Assembly or Legislative Council of a State is he is so disqualified under the Tenth Schedule.
- Disqualification under 10th Schedule – Defection – Article 191(2)
- The decision regarding disqualification of members of the state legislature on the grounds of defection only are vested in the Speaker in case of the legislative assembly and Chairman in case of the legislative council. (Part 6 of Tenth Schedule)
- All other cases of disqualification of members of the state legislature are announced by the Governor who acts on the advice of the Election Commission and whose decision is final. (Article 192).
- Additional disqualifications as per the Representation of People Act (1951)
- A person fined, imprisoned or convicted for certain offenses like social crimes, criminal offenses, promoting enmity between different groups shall be disqualified for a period of six years from the date of such verdict.
- A person convicted of any offense and sentenced to imprisonment for not less than two years other than certain offenses 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.
- A person who has been dismissed from govt. service for corruption or disloyalty to the State shall be disqualified for a period of five years from the date of such verdict.
- A person shall be disqualified if there subsists a contract related to the govt. entered into by him.
- Disqualification for failure to lodge account of election expenses
- Disqualification for office under the company in the capital of which the appropriate Government has not less than twenty-five percent share.
- Meghalaya Governor has sought the Election Commission’s opinion on the disqualification of 17 legislators, who were holding a charge as Parliamentary Secretaries, following the orders of the High Court.
- The matter was referred to the Election Commission of India as required under Article 192(2) of the Constitution of India on November 16 last. The matter was forwarded to the EC based on a representation by Madal Sumer, a resident of Jowai, who had approached the High Court to disqualify the 17 MLAs on certain legal grounds, he said.
- The High Court had on November 9 held invalid the Meghalaya Parliamentary Secretaries (Appointment, Salaries, Allowances, and Miscellaneous Provisions) Act, 2005 for want of legislative competence of the State Legislature.
- The Act was struck down and the disqualifications were left at the hands of the Governor.
- Although all the 17 legislators had resigned en mass on the same day itself, Mr. Sumer had told the Governor that their resignation was of “no consequence” and that the disqualification does not allow them to continue as MLAs.
- He cited the Supreme Court ruling and the powers conferred upon the Governor and said the 17 MLAs stand disqualified by operation of law with effect from the date they were appointed as Parliamentary Secretaries.
Clause (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.
- The decision on questions as to disqualifications of members Clause (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
(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder; State Legislature – Vacation of Seats
- Disqualifications for membership
State Legislature – Powers, Privileges and Immunities
- Article 190
- Disqualification: A member may be disqualified by the Governor on the advice of the EC or by the Speaker/Chairman on grounds of defection.
- Resignation: A member of the legislative assembly resigns by writing to the Speaker and that of the legislative council by writing to the Chairman, the acceptance of which would vacate the seat.
- Absence: If the member absents himself from the meetings of the state legislature for a period of 60 days, then the seat is deemed to be vacated. In computing, the said period of sixty days no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive days
- Double membership: A person cannot be a member of both Houses of the state legislature or legislature of two or more states at the same time.
- State laws specify the conditions for vacating the seat in case of double membership in the same state.
- If a person becomes a member of the state legislatures in two or more states, then the President shall specify the period after which all his seats shall become vacant unless he resigns other seats.
- Other cases
- If the person becomes President or Vice-President
- If the person is elected to the office of the governor
- If the person is expelled by the House
- If the person’s election is declared void by the court.
Page-4 West: Privileges Committee summons activist
- Article 194
- Every member has the freedom of speech in the state legislature subject to rules and orders of the House.
- No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings
- The powers, privileges, and immunities of a House and of the members and the committees of that House shall be from time to time be defined by the Legislature by law
- All such powers, privileges, and immunities are applicable to persons who have the right to speak and take part in the proceedings of the House and its committees.
- Other privileges of the state legislature
- It can regulate its own procedure by its own rules and adjudicate upon such matters.
- It can publish its events in the House and prohibit others from doing the same.
- It has the right to exclude outsiders from its meetings.
- It can punish anyone for breach of privileges.
- It can prohibit the court from inquiring into its proceedings
- Unless the presiding officer allows, no one can be arrested inside its premises or be served any legal process.
- It can demand immediate information of its members
- It can order inquiries and call for witnesses with relevant documents.
- Members are exempted from giving evidence and appearing as witnesses in a court when the House is in session.
- Members cannot be arrested 40 days before and 40 days after a session in civil cases.
UPSC Mains 2014: The ‘Powers, Privileges and Immunities of Parliament and its Members’ as envisaged in Article 105 of the Constitution leave room for a large number of un-codified and un-enumerated privileges to continue. Assess the reasons for the absence of legal codification of the ‘parliamentary privileges’. How can this problem be addressed? Page-7 South: HC restrains Karnataka from taking action against editors. (DEC 7)
- The Committee on Privileges of the Goa Assembly has issued a notice summoning Right to Information (RTI) activist and State government officer Kashinath Shetye to appear before it, in connection with an alleged breach of privilege motion raised by an MLA
- In July, Mr. Shetye, who is also a junior engineer with the State electricity department, had uploaded a photograph of Mr. Cabral’s legislative question, prior to it being answered in the Assembly. Mr. Cabral had said Mr.Shetye had not behaved like a government servant.
- Shetye had said that he had filed various petitions in the past as a private citizen and that the Assembly question was an open document sent to various departments, including his.
JV’s Analysis: The Indian Constitution specifies the powers and privileges of Parliament in Article 105 and those of State legislatures in Article 194. Article 194: Powers, privileges, etc, of the House of Legislatures and of the members and committees thereof In brief, the Privileges:
- The Karnataka High Court directed the State government, or any of the authorities acting under it, not to carry out any adverse action against the editors of two tabloids, who, by a resolution passed by the Karnataka Legislative Assembly were sentenced to one-year imprisonment for breaching privileges of the legislators.
- The petitioners had questioned the constitutional validity of the resolution passed by the Assembly on June 21, 2017, sentencing them to imprisonment based on two separate reports of the Committee of Privileges, which had found the petitioner-editors guilty of breaching privileges for publishing “defamatory and false” articles against the three legislators in the two tabloids.
- The Assembly, on November 21, 2017, reiterated its resolution of June 21 after the High Court, in connection with earlier petitions filed by the editors against the June resolution, had allowed them to submit a representation to the Assembly through the Speaker for reconsideration of the earlier resolution.
- The petitioners had argued that neither the CoP nor the Assembly had jurisdiction to either proceed against them or sentence them to imprisonment when the articles published in their tabloids had nothing to do with proceedings of the Assembly or rights of legislators within the Assembly.
- The legislators, if aggrieved by the published articles, had to avail legal remedy available under the Indian Penal Code before a court law, it was argued in the petitions.
Also read: Article 15, Mandal Commission And Indra Sawhney Case Expanding Scope of Right to Life and Liberty Under Article 21
- Provide freedom of speech in Parliament subject to other provisions of the Constitution and standing orders of the House.
- Given immunity for all speeches and votes in Parliament from judicial scrutiny.
- Allow Parliament (and State legislatures) to codify the privileges, and until then, have the same privileges as the British Parliament had in 1950.
- Till now, Parliament and State legislatures have not passed any law to codify their privileges.