Distinction between Qualification and Disqualification of candidates for MP and MLA: Indian Jurisprudence

Qualification means those positive attributes which makes a person eligible to occupy a particular position, post of public office, while disqualification means those negative aspects of a person which negate  his occupancy for his position, post or public office despite his being qualified therefore.

In All India Democratic women’sAssociation v/s State of Haryana 2016 (3) SCJ 328, SC observed  that there is no legal distinction between these two  expression. In common parlance it is understood that a qualification is the existence a particular state of  affairs which  makes possible achievement of particular object, while disqualification means absence of a particular state of affairs which renders the achievement of object impossible. As a conclusion citizenship of India is a condition precedent for membership of parliament and state legislature under article 84 and 171. Lack of citizenship is stipulated to be disqualification for membership of either bodies under article 102 and 191. Lack o citizenship renders a person disqualified from contesting elections to these bodies. We are of the opinion that the distinction between qualification and disqualification is purely semantic (in theory).

Relevancy of Qualifications and Disqualifications: In Rajbala  & others v/s State of Haryana 2016 () SCJ 3328 case SC observed – it is submitted that there is an important distinguishing feature between qualifications and disqualifications. Qualification under article 84 and 173 apply to ‘being chosen as for being elected or nominated as a member of parliament or of a state legislature. The disqualification under article 102 and 191   apply both to continuing as such members.  It means qualification must be fulfilled at the time of contesting election or being nominated as a member of parliament or of a state legislature. The disqualifications have relevance both at the time of election or nomination and also thereafter for continuing as such member, if elected or nominated.

As qualifications and disqualifications are two different and distinct concepts, every candidate is required to make a declaration in his nomination paper that he qualified and not also disqualified for being chosen to fill the seat which he intends to contest.   At the time of scrutiny of nomination paper, the returning officer has to be satisfied that candidate is qualified and not disqualified.

Constitutional and Statutory Provisions: Under the constitution of India qualification and disqualification for membership of parliament and state legislature are to different concepts. If a person wants to be members of parliament or state legislature whether by election or nomination, he must be qualified and must not be disqualified under the Constitution of India or Representative Peoples Act, 1951. Therefore India Constitution prescribes certain qualifications for being Member of Parliament and state legislature under articles 84 and 173 of the constitution of India, respectively whereas disqualifications for such membership are laid down in articles 102 and 191 of the constitution of India respectively.

Article 84 provides certain qualifications to possess to become member of parliament that  (a)  he is a citizen of India, and makes an oath or affirmation in the prescribed form before the prescribed authority, (b) he is, in the case of a seat in the Council of States, not less than thirty years of age and, in the case of a seat in the House of the People, less than twenty-five years of age; and (c) possesses such other qualifications as may be prescribed under any law made by Parliament.

Article 173 provides qualification to posses to become member of the Legislature of a State that (a) he is a citizen of India, and makes and subscribes before prescribed authority an oath or affirmation in the prescribed form, (b) he is, in the case of a seat in the Legislative Assembly, not twenty-five years of age and, in the case of a seat in the Legislative Council, less than thirty years of age; and (c) possesses such other qualifications as may be prescribed under any law made by Parliament.

Article 102 provides disqualification to be Member of Parliament.  If a person (a) holds any office of profit under the Government of India or the Government of any State and that office is not exempted  under any law by parliament (b) is of unsound mind and so declared by a competent court also; (c) is an undercharged insolvent; (d) is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or has allegiance or adherence to a foreign State; (e) is so disqualified under any law by Parliament.

Article 191 provides disqualification to be Member of Legislative Assembly or Legislative Council of a State. If a person (a) holds any office of profit under the Government of India or the Government of any State and that office is not exempted  under any law the Legislature of the State(b) is of unsound mind and so declared by a competent court also; (c) is an undischarged insolvent; (d) is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or has allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament.

In Election commission of India v/s Bajrang Bahadur Singh, AIR, 2016 SC 2301 SC held that there are two classes of disqualification mentioned in article 191 and 102- (i) Constitutional disqualifications which last only for limited period during the happening of certain events specified in 191 and 102 (ii) statutory disqualifications prescribed under section 8, 9, 10A of RP Act, 1951 which render a person ineligible for a period specified in these section.

Effect of Disqualification: The disqualification under sections 9A and 10 of the RP Act, 1951 are  akin to article 191 (a) to (d), where the period of disqualification is co-terminus with the happening of the event which renders a person  ineligible  for being chosen or for being a member of the legislature. On acquisition of disqualification by a legislator, he ceases to be a legislator forthwith by operation of Law. After cessation of the disqualifying factor legislature cannot back in legislature. He has to elect once again after the moment disqualification to exist. Every disqualification has a definite tenure prescribed by law and there cannot be life time ban imposed against a person.

If an elected or nominated member loses the qualification which he fulfilled at the time of his election or nomination, his membership of the house concerned  is not affected, but if he becomes disqualified after his election or nomination, he will lose  the membership of the house, as he will be disqualified  for being such member.  

Some  Illustration of  disqualification-

There is one of the essential qualifications for a candidate for member of parliament or state legislature is that he must be citizen of India. If after election he ceases to be Indian citizen on any ground under the citizenship Act 1955, he must vacate his seat in the house concerned that is why loss of citizen Is made specific qualification under the constitution of India.

In Jose Pedickal v/s Ibrahim Sulaiman Sait and others 1987 a question arose if a legislature had boycott the celebration of republic day even after giving a call, whether he will be disqualified.  It was alleged that he had violated the oath to bear true faith and allegiance to the constitution, which he had taken to be qualified under article 171 (a) and for taking a seat in the assemble under article 188. It was contend that he was no longer eligible to continue as member of the state assembly.  Kerala high court held that violation of oath taken at the time of becoming member did not constitute disqualification for continuing as a member of the state assemble after election.

2. Re Pranab Kumar Mukherjee 1981 EC

When a person (pranav mukherjee) elected to the council of states from the state of west Bengal  alleged to disqualify  to continue as member of that council because his name was deleted from the electoral roll  in west Bengal, which was an  essential qualification for election to the council from that state.  EC held that deletion of the name of president from the electoral roll did not affect  his continuance as members of the council  of states as the lack of qualification did not amount to disqualification  for continuing as member of parliament .

3. Re Murasoli Maran 1988

When a member is alleged inciting the burning of the constitution by writing some articles in the magazine Murasoli. It was contended that he should be disqualified to be continue as member of council of States.  But   this contention was rejected and he continued as member.