An MP or MLA can lose their seat for a criminal conviction, an office of profit, defection, or other grounds in the Constitution and the Representation of the People Act, 1951.
Most rules on disqualification of MPs and MLAs apply to candidates too, and who decides depends on the ground.
The grounds in the Constitution
Article 102 covers MPs, and Article 191 state legislators. A person cannot be elected, or remain a member, if they:
- hold an office of profit under the central or a state government, unless a law exempts it;
- are of unsound mind and stand so declared by a competent court;
- are an undischarged insolvent;
- are not an Indian citizen, have voluntarily acquired foreign citizenship, or acknowledge allegiance to a foreign state;
- are disqualified under a law made by Parliament, such as the 1951 Act.
Ministers are exempt, as are offices listed in the Parliament (Prevention of Disqualification) Act, 1959 for MPs, or in state law for MLAs.
Defection falls under the Tenth Schedule; see our explainer on the anti-defection law.
Conviction for a criminal offence
Section 8 of the Representation of the People Act, 1951 has three tiers:
- Section 8(1): listed offences, such as booth capturing and offences under the Prevention of Corruption Act, 1988. Even a fine alone disqualifies, for six years from conviction.
- Section 8(2): hoarding or profiteering, food or drug adulteration, and offences under the Dowry Prohibition Act, 1961, with at least six months in prison.
- Section 8(3): any other offence, with at least two years in prison.
With a prison sentence, disqualification runs from the date of conviction until six years after release.
A pending case, however serious, does not disqualify. Candidates do have to declare their cases on a sworn affidavit, so check your candidate before you vote.
No waiting for an appeal
Section 8(4) once shielded a convicted sitting member for three months, or until an appeal filed in that time was decided.
The Supreme Court in Lily Thomas v Union of India (2013) struck it down, holding that sitting members and candidates must face the same disqualifications. A sitting member is now disqualified from the date of conviction, even while appealing.
The Supreme Court in Lok Prahari v Election Commission of India (2018) held that once an appellate court stays the conviction, the Section 8 disqualification does not operate. Such stays are exceptional; staying only the sentence is not enough.
Other grounds in the 1951 Act
- Section 8A: a corrupt practice found in an election petition can bring disqualification for up to six years, decided by the President on the Election Commission’s opinion.
- Section 9: dismissal from government service for corruption or disloyalty to the State, for five years.
- Section 9A: a subsisting contract with the government to supply goods or carry out works.
- Section 10: being a managing agent, manager or secretary of a company or corporation, other than a cooperative society, in which the government holds at least 25 per cent of the capital.
- Section 10A: failing, without good reason, to lodge an account of election expenses in the time and manner the law requires, for three years from the Commission’s order.
Section 11 lets the Election Commission remove or reduce any of these disqualifications, even one for a conviction, except under Section 8A.
Who decides
Under Articles 103 and 192, a question whether a sitting member has become disqualified under Article 102(1) or 191(1) goes to the President or Governor. Their decision is final, but they must obtain the Election Commission’s opinion and act according to it.
Defection cases go to the Speaker or Chairman of the House instead.
A candidate’s disqualification is tested at scrutiny by the Returning Officer, or after the result by election petition.
What happens to the seat
The seat falls vacant on the date the member becomes disqualified, not on the date of any decision by the President or Governor. If the question is disputed, filling the seat may wait for their decision, and if they find no disqualification, the seat is treated as never having fallen vacant. A by-election normally follows within six months, unless less than a year of the term remains.
A member disqualified on conviction is barred from contesting it too, unless the conviction is stayed or overturned, or the Commission lifts the bar. Defection disqualifies only from membership, so on its own it does not stop someone standing again.
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