The Election Commission of India has recommended disqualification of Jharkhand Chief Minister Hemant Soren from state Assembly for "violating electoral law" by allegedly extending a mining lease to himself.
Constitutional provisions pertaining to disqualification
The criteria for disqualifications from membership of a state legislature are mentioned in the Article 191 of the Constitution of India.
This Article is similar to the disqualification laid down in the Article 102 relating to the membership of both the houses of Parliament.
Article 192 of the Constitution states that on rulings regarding a MLA's disqualification, the question shall be referred to the governor who in turn "shall obtain the opinion of the Election Commission and shall act according to such opinion”.
Criteria for Disqualification of MLAs in India:
According to the constitution (Article 191), a person shall be disqualified as Member of Legislative Assembly (MLA) or Member of Legislative Council (MLC) if:
he holds any office of profit under the Government of India or a state or an office declared by a law of the state,
any competent court declares any member to be of unsound mind,
he is charge-sheeted, bankrupt or insolvent,
he is not a citizen of India,
has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance or adherence to a foreign state.
Office of profit under Indian Constitution:
The term office of profit has not been defined in the Constitution.
But, articles 102 (1) and 191 (1) - which give effect to the concept of office of profit -- prescribe restrictions at the central and state level on lawmakers accepting government positions.
Any violation attracts disqualification of MPs or MLAs, as the case may be.
Principles of declaring Office of Profit:
Four broad principles have evolved for determining whether an office attracts the constitutional disqualification.
Whether the government exercises control over appointment, removal and performance of the functions of the office.
Whether the office has any remuneration attached to it.
Whether the body in which the office is held has government powers (releasing money, allotment of land, granting licences etc.).
Whether the office enables the holder to influence by way of patronage.
According to Schedule 10 (Anti-Defection Act), a person shall be disqualified as Member of Legislative Assembly (MLA) or Member of Legislative Council (MLC) if:
an elected member voluntarily gives up his membership of a political party,
an elected member votes or abstains from voting in such House contrary to any direction issued by his political party or anyone authorised to do so, without obtaining prior permission.
According to Representation of the People (RP) Act, 1951 a person shall be disqualified as Member of Legislative Assembly (MLA) or Member of Legislative Council (MLC) if:
one is found guilty of an illegal practice in relation to election, and
a person convicted of any offence and sentenced to imprisonment for varying terms under Sections 8 (1) (2) and (3).