Membership of State Legislature

The Constitution of India has well defined prerequisite qualifications for a person to be elected as a member of the State Legislature.

Qualifications

While dealing with the qualification for membership of the State Legislature, Art. 173, of the constitution says: “A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he” or she “is a citizen of India”, and he or she must make or subscribe an oath of affirmation before the person who has been authorized by the Election Commission for this purpose; he or she must not be less that twenty-five years of age, while in the case of Legislature Council the age bar is fixed at 30 years.

Following the parameters set by the Constitution, the Parliament through the Representation of People Act, (RPA) 1951, has laid down some additional qualification in the matter of being a Member of the Legislature Assembly (MLA):

What the RPA Says

According to the RPA, 1951,: a person wishing to be elected as the Legislature Assembly must be an elector for an assembly constituency in the concerned state; person to be elected to the Legislature Council must be an elector for an assembly constituency in the concerned state and to be qualified for the Governor’s nomination, he or she must be a resident in the concerned state; he or she must be a member of scheduled caste or schedule tribe if h/she wants to contest a seat reserved for them. However, it is very important here to mention, a member of scheduled castes or schedule tribes can also contest a unreserved general seat.

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Disqualifications

Clause 1 of the Article 191 of the Constitution of India, while dealing with the disqualification of the membership of the Legislature Assembly or Legislature Council, states that a person shall be disqualified for being chosen as, and for being a member of the Legislative Assembly or State Legislature Council : if s/he holds any office of profit under the Central Government of the Government of any State specified in the first schedule; if s/he is of unsound mind and stands so declared by a competent court; if he is an undischarged insolvent; if s/he is not a citizen of India or has voluntarily acquired the citizenship a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State; and of s/he is so disqualified by or under any law made by Parliament.

In this case also, like with the “qualification” process, the Parliament according to the parameters set by the Constitution, has prescribed some additional rules for disqualifications in the RPA, 1951.

The clause 2 of the Articles 191 States that a person shall be disqualified for being a member of the Legislature Assembly or State Legislature Council is s/he is so disqualified under the 10th schedule.

Deciding the Disqualifications of the Members

Dealing with the issue of “Decision on questions as to disqualifications of members”, the clause 1 of the Article 192 of the Constitution says that if any question arises as to whether a member of the House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause 1 of the Article 192, the decision of the Governor shall be final.

However, clause 2 of the Article 192 states that before giving any decision on any such question, the Governor would have to obtain the opinion of the Election Commission and act according to such opinion.

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Disqualification on the Ground of Defection

The provision of Disqualification on the ground of defection have been described in the Tenth schedule. According to the tenth schedule the question of disqualification is decided by the Chairman in the case of Legislative Council and the Speaker in the case of Legislative Assembly. The Supreme Court, in Kihota Hollohan v. Zachilhu (1992) case, ruled that the decision of chairman/speaker in this regard is subject to judicial review.

Vacation of Seats

The Article 190 deals with the ‘vacation of seats’ that comes within the larger canvas of the phrase disqualification of membership.

Clause 1of the Article 190 says that no person can be a member of both Houses of the Legislature of a State; if a person is elected to both the Houses, his seat in one of the House automatically falls vacant; if a member of a House of Legislature of a becomes subject to any of the disqualifications mentioned in clause(1) or Clause (2) of Article 191; or resigns his seat by submitting his resignation letter to the Speaker or Chairman (sub clause ‘a’ and ‘b’ of clause 3 of Article 190).

Clause 4 of the Article 190 says that a House of the State Legislature can declare a seat of a member vacant if s/he remains absents from all its meeting for a period of sixty days without getting the permission of the House.

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