Under the Constitution, a person shall be disqualified for being chosen as and for being a member of the legislative assembly or legislative council of a state:
(a) if he holds any office of profit under the Union or state government (except that of a minister or any other office exempted by state legislature9),
(b) if he is of unsound mind and stands so declared by a court,
(c) if he is an undischarged insolvent,
(d) if he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance to a foreign state, and
(e) if he is so disqualified under any law made by Parliament.
Accordingly, the Parliament has prescribed a number of additional
disqualifications in the Representation of People Act (1951). These are similar to those for Parliament. These are mentioned here:
1. He must not have been found guilty of certain election offences or corrupt practices in the elections.
2. He must not have been convicted for any offence resulting in imprisonment for two or more years. But, the detention of a person under a preventive detention law is not a disqualification.
3. He must not have failed to lodge an account of his election expenses within the time.
4. He must not have any interest in government contracts, works or services.
5. He must not be a director or managing agent nor hold an office of profit in a corporation in which the government has at least 25 per cent share.
6. He must not have been dismissed from government service for corruption or disloyalty to the state.
7. He must not have been convicted for promoting enmity between different groups or for the offence of bribery.
8. He must not have been punished for preaching and practicing social crimes such as untouchability, dowry and sati.
On the question whether a member has become subject to any of the above disqualifications, the governor’s decision is final. However, he should obtain the opinion of the Election Commission and act accordingly.
Disqualification on Ground of Defection The Constitution also lays down that a person shall be disqualified for being a member of either House of state legislature if he is so disqualified on the ground of defection under the provisions of the Tenth Schedule.
The question of disqualification under the Tenth Schedule is decided by the Chairman, in the case of legislative council and, Speaker, in the case of legislative assembly (and not by the governor). In 1992, the Supreme Court ruled that the decision of Chairman/Speaker in this regard is subject to judicial review10.
3. Oath or Affirmation
Every member of either House of state legislature, before taking his seat in the House, has to make and subscribe an oath or affirmation before the governor or some person appointed by him for this purpose.
In this oath, a member of the state legislature swears:
(a) to bear true faith and allegiance to the Constitution of India;
(b) to uphold the sovereignty and integrity of India; and
(c) to faithfully discharge the duty of his office.
Unless a member takes the oath, he cannot vote and participate in the proceedings of the House and does not become eligible to the privileges and immunities of the state legislature.
A person is liable to a penalty of t500 for each day he sits or votes as a member in a House:
(a) before taking and subscribing the prescribed oath or affirmation; or
(b) when he knows that he is not qualified or that he is disqualified for its membership; or
(c) when he knows that he is prohibited from sitting or voting in the House by virtue of any law made by Parliament or the state legislature.
Members of a state legislature are entitled to receive such salaries and allowances as may from time to time be determined by the state legislature.
4. Vacation of Seats
In the following cases, a member of the state legislature vacates his seat:
(a) Double Membership: A person cannot be a member of both Houses of state legisla-ture at one and the same time. If a person is elected to both the Houses, his seat in one of the Houses falls vacant as per the provisions of a law made by the state legislature.
(b) Disqualification: If a member of the state legislature becomes subject to any of the disqualifications, his seat becomes vacant.
(c) Resignation: A member may resign his seat by writing to the Chairman of legislative council or Speaker of legislative assembly, as the case may be. The seat falls vacant when the resignation is accepted11.
(d) Absence: A House of the state legislature can declare the seat of a member vacant if he absents himself from all its meeting for a period of sixty days without its permission.
(e) Other Cases: A member has to vacate his seat in the either House of state legislature,
(i) if his election is declared void by the court,
(ii) if he is expelled by the House,
(iii) if he is elected to the office of president or office of vice-president, and
(iv) if he is appointed to the office of governor of a state