Types of disqualifications
THE UTTAR Pradesh Government has passed the ?UP State Legislative Assembly (Removal of Disqualification) Act, 2006? which has yet not been assented to by the Governor. The controversial clause would come into force with retrospective effect. This means that the politicians who are holding the posts mentioned in the Act will not be disqualified from being an elected member.india Updated: Mar 13, 2006 01:23 IST
THE UTTAR Pradesh Government has passed the ‘UP State Legislative Assembly (Removal of Disqualification) Act, 2006’ which has yet not been assented to by the Governor. The controversial clause would come into force with retrospective effect. This means that the politicians who are holding the posts mentioned in the Act will not be disqualified from being an elected member.
Three types of disqualification are provided in the law. One is provided in Representation of People’s Act, 1951 under which a person convicted for certain offences defined in it; dismissed for corruption or disloyalty. If there subsists a contract between him and the government regarding trade or business; holding office under government company; or fails to provide account of election expenses shall be disqualified from being elected as a member of any House for the period prescribed therein which may be three or six years as the case may be.
The other disqualification was introduced by Parliament through 52nd Amendment with effect from March 1, 1985, by inserting 10th Schedule in the Constitution which is commonly known as an Anti-Defection Law.
While the third one is the kind, wherein the people’s representatives are charged of holding any office of profit.
Article 102 of the Constitution provides that a person shall be disqualified for being chosen as and for being a MP of either House if he or she 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. So, the Article 102 delves the persons contesting for the post of Member of Parliament or continuance as such. However, the Parliament by law can declare that certain offices of profit under the government shall not disqualify the holders thereof for being chosen as or for being Member of Parliament.
Parliament enacted the Parliament (Prevention of Disqualification) Act, 1959 and declared several offices of profits will not be entitled to disqualification, which includes the post of minister, state minister or deputy minister, leader of opposition, deputy chairman planning commission, sheriff in the city of Bombay, Calcutta and Madras. Similarly, several bodies under the state governments were also declared wherein the persons holding posts were not to be disqualified.
Identical provision is provided under Article 191 of the Constitution in respect of the member of Legislative and Legislative Council of the state. But in that case it is only the state legislature which may declare by law, not to disqualify the holder of the posts for being elected or holding such posts.
The State Legislature has no authority to declare any post to avoid any disqualification of its occupant, so far as for being elected or holding as MP either of Lok Sabha or Rajya Sabha. Several states have enacted laws declaring the post of which do not invite disqualification and have been declared as office of non-profit.
UP also enacted Uttar Pradesh Rajya Vidhan Mandal (Anharita Nivaran) Adhiniyam, 1971 in which several posts were declared as not the office of profit so far as election or holding of the posts of member of Legislative Assembly. It is expected that the people’s representatives know the law. Effective foolproof and healthy laws can be enacted after discussions in Houses by the learned members of such houses.
Similarly, so far as Jaya Bachchan was concerned, she had resigned from the post of chairperson of UP Film Development Corporation, but surprisingly after elections she rejoined it.
(As told to Venugopal Pillai. IB Singh is a High Court lawyer)