Thursday, February 15, 2018

Ninth Schedule of Indian Constitution & IR Coelho Case

Ninth Schedule of the Indian Constitution was enacted in 1951 to save the laws made by the government from the scrutiny of the judiciary.

Ninth Schedule of the Indian Constitution was brought in through the 1st Amendment Act 1951 along with Article 31B of Indian Constitution.

The utility of Article 31B of Indian Constitution is that it saves acts and regulations included in Ninth Schedule of the Constitution from Judicial scrutiny.

This Ninth Schedule was important specially in post-independence era as laws relating to land reforms/abolition of Zamindari system and other such laws which aimed at bringing social equity were included in it.

The government was very much active to bring in Nationalization of land assets, taking away excess of land from the Zamindars and providing them to economically and socially oppressed.

However this was very much clear that these laws will be nullified by the Judiciary as at that point of time these were laws were in direct contravention of the Constitutional text.

So the government bought in Article 31a and 31b of the Constitution which allowed the government to such legislations from judicial scrutiny.

However Ninth Schedule in a matter of time became an arena of excesses of the Legislature in the following manner - 

Since the First Amendment, the Ninth Schedule has been relied upon to amend the constitution multiple times over. The 4th amendment inserted six acts to the 9th schedule. The 17th amendment added 44 more acts. The 29th amendment brought in 2 acts from Kerala. The 34th amendment in 1974 added 20 more land tenure and land reforms laws enacted by the states.

In 1975, Indira Gandhi’s infamous abuse of executive power leading up to emergency saw the 39th amendment adding cer­tain central enactments. 1976 saw the 40th amendment even more to the 9th schedule. The 47th amendment in 1984 added more, and then in 1990 the 66th amendment gave more protection to land ceiling acts.

The 76th amendment to accommodate Tamil Nadu Government’s legislation to provide for reservations to the level of 69 percent for SC/ST and OBCs followed. What takes the cake however is the 78th amendment, which was about not just immunity to laws in 9th schedule, which was suspect, but amendments to those laws and making those amendments immune. Since then there were absurd laws from Sugarcane supporting price to the New Delhi Urban Zoning Laws all clamoring for an exalted spot in the much abused Ninth Schedule.

Supreme Court Judgement in I.R.Coelho Case 2007

However in a major turnaround in 2007, the Supreme Court in I.R. Coelho case ruled that there can be no unrestricted immunity for laws mentioned in the Ninth Schedule. Yogesh Kumar Sabharwal was the Chief Justice of India at this time.

The Court ruled that Judicial Review forms a Basic Feature of Indian Constitution and it will apply to acts and regulations included in the Ninth Schedule too.

But the subjection of Ninth Schedule to Judicial Review was restricted to those regulations which were included in the Ninth Schedule after 24th 1973.

So all acts, regulations and laws included in the Ninth Schedule after 24th April 1973 are open to challenge in court if they violated Fundamental Rights guaranteed under the Articles 14, 15, 19 and 21 or the ‘basic structure’ of the Constitution.

Wednesday, February 14, 2018

Indian Constitution Articles Dealing With Judicial Review

In this article I am going to talk about those particular articles of the Indian Constitution that deal with the provision of Judicial Review in the Indian Constitution.

As told previously the concept of Judicial Review in India was introduced by the constitution makers at the time of drafting of the Constitution and it was borrowed from the American Constitution.

Articles Dealing With Judicial Review

Article 13 of Indian Constitution

Laws inconsistent with or in derogation of the fundamental rights 

(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void 

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void 

(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas 

(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality

Important - This article simply says that all laws which are in inconsistent with or violate the fundamental rights would will be ultra vires and can be proclaimed as null and void thereby directly giving the Judiciary the power of Judicial Review.

Article 32 of Indian Constitution

Right to Constitutional Remedies - Provides the right to move to the Supreme Court for checking the violation of Fundamental Rights and authorizes the Supreme Court to issue writs of Habeas Corpus, Mandamus, Quo Warranto, Prohibition, Certiorari for the enforcement of fundamental rights.

Article 226 of Indian Constitution

This covers the writ jurisdiction of the High Court and powers under it available to High Court are wider than the powers available to Supreme Court under Article 32 as High Courts can issue writs of on all cases whereas Supreme Court jurisdiction of issuing writs is limited to the violation of Fundamental Rights.

Article 131 of Indian Constitution - Supreme Court original jurisdiction in Centre-State and Inter-State matters.

Article 132 of Indian Constitution - Supreme Court appellate jurisdiction in constitutional cases.

Article 133 of Indian Constitution - Supreme Court appellate jurisdiction in civil cases.

Article 134 of Indian Constitution - Supreme Court appellate jurisdiction in criminal cases.

Article 134 A of Indian Constitution - It is related to the certificate for appeal to the Supreme Court from the High Courts. This article was added through the 44th Constitutional Amendment Act.

Article 135 of Indian Constitution - Empowers the Supreme Court to exercise the jurisdiction and powers of the Federal Court under any pre-constitution law. 

Article 136 of Indian Constitution - Authorizes the Supreme Court to grant special leave to appeal from any court or tribunal (except military tribunal and court martial). 

Article 143 of Indian Constitution - Authorizes the President to seek the opinion of the Supreme Court on any question of law or fact and on any pre-constitution legal matters

Article 227 of Indian Constitution - Vests in the High Courts the power of superintendence over all courts and tribunals within their respective territorial jurisdictions (except military courts or tribunals).

Monday, February 12, 2018

Supreme Court & High Court Judicial Review Power

The concept of Judicial Review was propounded in the United States of America in the Marbury vs Madison case of 1803 whose judgement was delivered by the then Chief Justice of the Supreme Court of America, John Marshal.

However when we talk about India, the power of Constitutional Review in India has been vested with the Supreme Court and High Court through the Constitution of India itself.

Also the Supreme Court of India has declared the Judicial Review power of the Supreme Court and High Court in India as a basic structure of the Constitution which cannot be taken away even by way of a Constitutional amendment.

If during the Judicial Review,any legislative enactment/executive order of either State Government or Central Government is found to be in violation of the Constitution it will be declared as invalid.

Judicial Review is basically of three types in accordance with the view of the Supreme Court - 

# Judicial review of constitutional amendments.
#Judicial review of legislation of the Parliament and State Legislatures and subordinate legislations.
# Judicial review of administrative action of the Union and State and authorities under the state.

What can be obtained by maintaining the principle of Judicial Review - 

# Supremacy of the Constitution is maintained
# Federal Equilibrium that is distribution of power between Centre and States in maintained.
# Fundamental Rights of the Citizens are protected.

Judgements in various cases propounding the essence of Judicial Review

1. Chief Justice Kania in A.K. Gopalan v. State of Madras (1950)

“In India it is the Constitution that is supreme and that a statute law to be valid, must be in conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not”

2. Chief Justice Patanjali Shastri in State of Madras v. V.G. Row (1952)

“Our constitution contains express provisions for judicial review of legislation as to its conformity with the constitution. This is especially true as regards the Fundamental Rights, to which the court has been assigned the role of sentinel on the qui vive”

3. Justice Khanna in Kesavananda Bharati v. State of Kerala (1973)

“As long as some Fundamental Rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by these Rights are not contravened”

4. Justice Bhagwati in Rajasthan v. Union of India (1977)

The Constitution is supreme lex, the permanent law of the land, and there is no branch of government above it. Every organ of government, be it the executive or the legislature of the judiciary, derives its authority from the Constitution and it has to act within the limits of its authority. No one however highly placed and no authority howsoever lofty, can claim that it shall be the sole judge of the extent of its power under the Constitution or whether its action is within the confines of such power laid down by the constitution. This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits”

5. Chief Justice Chandrachud in Minerva Mills v. Union of India (1980)

“It is the function of the Judges, may their duty, to pronounce upon the validity of laws. If courts are totally deprived of that power, the Fundamental Rights conferred on the people will become a mere adornment because rights without remedies are as writ in water. A controlled Constitution will then become uncontrolled”

6. Chief Justice Ahmadi in L. Chandra Kumar v. Union of India (1997)

“The judges of the Supreme Court have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations”

7. Justice Ramaswami in S.S. Bola v. B.D. Sharma (1997)

“The founding fathers very wisely, therefore, incorporated in the Constitution itself the provisions of judicial review so as to maintain the balance of federalism, to protect the Fundamental Rights and Fundamental Freedoms guaranteed to the citizens and to afford a useful weapon for availability, availment and enjoyment of equality, liberty and Fundamental Freedoms and to help to create a healthy nationalism. The function of judicial review is a part of the constitutional interpretation itself. It adjusts the Constitution to meet new conditions and needs of the time”

Hyperinflation, Deflation, Stagflation, Galloping Inflation, Cost-Push & Demand-Pull Inflation

According to many economists, inflation upto a certain level is beneficial for the economy as it keeps the economy in a buoyant mode with vibrant and active economic activity. This inflation has to be in the range of around 2 to 4 % beyond which this inflation has the potential to create some problems for the economy.

Now we are going to understand the different types of Inflation

Galloping Inflation

When in an economy the cost of goods and services is increasing at the rate of double digit or initial stages of triple digit inflation. It hits hard the middle and lower income group as there purchasing power decreases as no increase in earnings occur but the prices increase exorbitantly.


This type of inflation is one step ahead of galloping inflation. In this type,the inflation rate goes even higher that three digits. This happens when the supply of money in the economy is excessively high and there is not enough production capacity. This happened with Germany in the post first world war era and also with countries like Argentina, Zimbabwe and Brazil in 1989 and 1991.


This happens when three adverse conditions occur simultaneously - (Extreme Unemployment, High Inflation and Poor Economic Growth).


Means negative inflation which means the prices are decreasing which may be due to reduced money supply in the economy or may be due to excessive supply of goods and reduced demand in the economy. This may seem as good thing as prices are reducing which may benefit the consumers however it has the potential to hurt the economy in the long run by reducing economic activity of the companies due to reducing profit on account of decreasing prices thereby accentuating unemployment.

Cost-Push Inflation

This inflation occurs due to increase in the prices of land, labour and entrepreneurship used as inputs in the production of goods and services.

Demand-Pull Inflation

When demand exceeds the available supply.

Primary, Secondary, Tertiary, Quaternary & Quinary Sectors of Economy

Primary Sector of the Economy

In this the primary activities of the economy are included which have a direct connection to the environment like (a) agriculture and allied activities which includes activities like hunting, fishing, dairy sector, pastoral activities, vegetation land and water (b) mining and quarrying which includes oil extraction, coal mining itc.

People involved in the primary activities of an economy are also termed as red collar workers due to their association with activities of outdoor nature.

Secondary Sector of Economy also known as Manufacturing Sector 

In this sector of the economy, activities related to industry, construction, manufacturing, processing & infrastructure activities of the economy are covered.

People involved in the secondary sectors of the economy are termed as blue collar workers of the economy. This sector was the main driver of economic progress of India post Independence under the Mahalanobis model and got a further boost post the Liberalisation, Privatisation & Globalisation phenomenon of 1991.

Tertiary Sector of Economy

In this sector of the economy, services are included which may include varied services like banking, communication, education, transport, trade, hospitals, consultancy, online consultation etc.

This forms the majority of the World GDP (around 66 percent). People employed in such services are known as White Collar workers.

Quaternary Sector of Economy also known as Knowledge Sector

Quaternary sector of the economy represents the knowledge portion of the economy. This is said to be a sub classification of the tertiary sector which includes activities like technological development, R&D etc. This sector is basically involved in domains which are given the responsibility of improving the quality of services offered in the economy. They may include High Quality Education, Software Developers, Statisticians, Brokerage and Accounting Firms etc.

Quinary Sector of Economy

This is yet another subdivision of tertiary sector which is also known by the name of gold collar profession. In this top level decision makers of the economy are present. These top level decision makers focus on the creation, re-arrangement and interpretation of new and existing ideas; data interpretation and the use and evaluation of new technologies.

Their number in the economy may be minute but their impact on the economy is huge as they include personnels like politicians, bureaucrats, top business executives, financial experts etc.

Saturday, December 16, 2017

Everything about National Medical Commission of India

Union Cabinet has recently approved the National Medical Commission Bill which does away with the old Medical Council of India which was said to be marred by many problems and irregularities.

Problems with Medical Council of India

# Reports of Corruption against the officials in recognizing medical institutions and professionals.

# MCI has been dealing more in medical education prospects with negligent focus on inculcating ethics in medical treatment.

# The low doctor to population ratio in India has not been improved despite MCI having a mandate to solve the problem.

# The setting up of medical colleges has not been in accordance to the needs of the region and people. Some states are having negligent medical college facilities whereas others are having more. Geographical equality of medical colleges constructions needs to be maintained.

# The curriculum of medical education in India has not been in accordance to the Indian needs specially for the rural areas and masses.

# More focus has been on the infrastructure and less on quality, training and skill impartation of medical education.

What the National Medical Commission Intends to do ?

# Will remove the heavy handed regulatory control approach of Medical Council of India over medical institutions.

# Will ease the processes for colleges to manage undergraduate and postgraduate courses. Earlier, the MCI approval was needed for establishing, renewing, recognising and increasing seats in a UG course. Under the new proposal, permissions need only be sought for establishment and recognition.

# For opening a Postgraduate Course after Undergraduate courses recognition, a separate permission would be required.

# National Medical Commission will be a 25 member body the constitution of which would be something like this - 

1. Government would nominate the Chairman and members who will be chosen by a Cabinet Secretary led committee.

2. There will be a Chairman and a member secretary.

3. There will be 12 ex-officio members which will also include among themselves four President of Boards of leading institutions like All India Institute of Medical Sciences and Indian Council of Medical Research.

4. There will be 11 part time members.

# National Medical Commission will also have the power to frame guidelines for fees for up to 40% seats in private colleges and deemed universities.

# The punishment of non-deterrence by colleges will be less harsh when compared to what happened in the case of Medical Council of India.

# The draft bill also proposes a common entrance exam and licentiate exam which all medical graduates will have to clear to get practicing licences

# The draft bill proposes for constitution of four autonomous boards entrusted with conducting undergraduate and postgraduate education, assessment and accreditation of medical institutions and registration of practitioners under the National Medical Commission.

All about Chairman and Deputy Chairman of Rajya Sabha

Chairman of the Rajya Sabha (Vice President of India)

Rajya Sabha presiding officer is known by the designation of the Chairman of Rajya Sabha.

Vice President of India is the ex-officio Chairman of the Rajya Sabha.

When the President of India is unable to perform its duties, the Vice President of India performs the duties of the President.

The Chairman of Rajya Sabha can be removed only when the Vice-President of India is removed, the process of which I have already discussed in the Vice President lecture.

Salaries and allowances of the Vice President of India are charged on the Consolidated Fund of India.

Whenever the Vice President acts as the President, he is given the allowances of the President and not the Vice President.

When the resolution for the removal of Vice President is under consideration he can not preside over the proceedings of the Rajya Sabha, though he can be present and take part in the proceedings without voting power.

Chairman while presiding over Rajya Sabha has the power of a casting vote in the event of a tie.

Although many of the functions and powers of the Chairman of Rajya Sabha are similar to that of the Speaker of Lok Sabha, though there are some differences between the two which are -

1. Speaker has the power to certify whether a particular bill is money bill or not.

2. Speaker has the power to vote in the first instance when a removal motion has been initiated against him, whereas this privilege is not available to the Chairman of the Rajya Sabha.

3. Speaker of the Lok Sabha presides over the Joint sitting of the Lok Sabha and the Rajya Sabha which is being called in by the President.

4. Speaker of the Lok Sabha is the member of the Lok Sabha, whereas the Chairman of the Rajya Sabha is not the member of the Rajya Sabha.

Deputy Chairman of the Rajya Sabha

# Looks are the duties of the Chairman when the Chairman is not present for some reasons.

# Deputy Chairman is not subordinate to the Chairman of Rajya Sabha and is directly responsible to the House.

# Deputy Chairman is elected by the members of the Rajya Sabha from amongst themselves.

# Salaries and allowances are decided by the Parliament and are charged upon the Consolidated Fund of India.

# For leaving his post, he has to address his resignation to the Chairman of the Rajya Sabha.

# For removing the Deputy Chairman, a resolution supported by an absolute majority of the Rajya Sabha is required.

# The functions and powers of the Deputy Speaker are very similar to the Deputy Speaker of the Lok Sabha

Facts about Speaker, Deputy Speaker and Speaker ProTem of Lok Sabha

Speaker of the Lok Sabha

Speaker of the Lok Sabha is the presiding officer of Lok Sabha.

He is elected by the members of the Lok Sabha from amongst themselves somewhere after the newly formed Lok Sabha first meeting.

The Lok Sabha Speaker under normal circumstances remains the Speaker as far as he is the member of the Lok Sabha.

He loses his seat as a speaker when he is not a member of the Lok Sabha. 

He can also resign by addressing his resignation to the Deputy Speaker of the Lok Sabha.

If he has to be removed by the House, then a resolution has to be passed by the majority of all the members of the Lok Sabha after giving a 14 days advance notice to the Speaker.

When a resolution for removing the Speaker of the Lok Sabha is taken up, then during this time period the Speaker cannot preside over as the head of the house.

During this time the Speaker acts as a normal member of the House. He can take part in the proceedings of Lok Sabha and vote on bills in the first instance.

When the Lok Sabha Speaker acts officially he doesn't votes in the first stance and has a casting vote in case of a deadlock.

The office of Lok Sabha becomes important looking at the fact that when the Lok Sabha gets dissolved the Speaker still remains unless the new Lok Sabha is formed.

Lok Sabha Speaker Autonomy Power and Responsibilities

The Speaker is the head of the Lok Sabha, and its representative.

He is the guardian of powers and privileges of the members, the House as a whole and its committees.

He is the principal spokesman of the House, and his decision in all Parliamentary matters is final.

He is thus much more than merely the presiding officer of the Lok Sabha.

In these capacities, he is vested with vast, varied and vital responsibilities and enjoys great honour, high dignity and supreme authority within the House.

Source of Power of the Lok Sabha Speaker

# Constitution of India

# Rules of Procedure and Conduct of Business of Lok Sabha

# Parliamentary Conventions

Autonomy of Lok Sabha Speaker

Has been provided security of tenure.

The resolution for removal has to be passed by absolute majority and removal motion should have support of at least 50 members.

Remuneration i.e. Salary and allowances belong to non-plan expenditure. They are charged on the Consolidated Fund of India.

The power of the Speaker to regulate and control the proceedings/business of Lok Sabha is not subject to the jurisdiction of any court.

In Britain, the speaker has to resign from the political party after being elected to the office, however no such condition exists in India.

Functions and Responsibilities of Lok Sabha Speaker

# Maintains order and decorum in the House so that business and proceedings of the House can be carried on properly.

# Adjournment of the House is done by the Speaker.

# The meeting of the House is suspended by the Speaker in the absence of quorum.

# Has the power of Casting Vote in the event of a deadlock.

# Joint Session of both Lok Sabha and Rajya Sabha summoned by the President of India is presided over by the Speaker of the Lok Sabha.

# He can bar the presence of strangers in the chambers, lobby and gallery of the House in the event of a secret sitting at the request of the leader of the House

# Speaker decides on the disqualification of members in accordance with the Anti-Defection law provided under 10th Schedule of the Constitution.

# Speaker decides whether a Bill is a money bill or not.

# He is by default the Chairman of Business Advisory Committee, Rules Committee and General Purpose Committee.

# Speaker appoints the Chairman of all Parliamentary Committees.

Deputy Speaker of the Lok  Sabha

I will detail only the most important points in relation to the Deputy Speaker and not in detail.

# The office of the Speaker and Deputy Speaker originated as the President and Deputy President under the under the provisions of Montague Chelmsford reforms(Government of India Act 1919).

# They remained President and Deputy President till 1947.

# The Speaker and Deputy Speaker do not have to subscribe to any special oath for the office. They have to only to subscribe to oath and affirmation as being done by other Member of the Parliament.

# The process of removal of a Deputy Speaker is similar to that of the Speaker of the Lok Sabha.

# He will address his resignation to the Speaker of the Lok Sabha.

# The Deputy Speaker performs the functions of the Speaker when the Speaker is not present in the sitting of the House.

# When Speaker is present, Deputy Speaker acts as any other normal member of the House.

# When Deputy Speaker is a member of any of the Parliamentary Committee, he automatically becomes its Chairman.

# His salaries and allowances are charged on the Consolidated Fund of India.

# Deputy Speaker is not subordinate to the Speaker. He is directly responsible to the Lok Sabha.

Speaker Pro-tem

Under the provisions of the Constitution, just before the first meeting of the newly elected Lok Sabha, the Speaker of the previous Lok Sabha vacates his office. 

President usually appoints the senior most member of the Lok Sabha as the Speaker Pro-tem.

President himself administers the oath to the Speaker Pro-tem.

The responsibility of the Speaker Pro-tem is to administer the oath to all the members of the newly elected Lok Sabha and also assist in the election of the new Speaker of the Lok Sabha.

After the new Speaker has been elected, Speaker Pro-tem ceases to exist as it is a temporary arrangement.

Friday, December 15, 2017

National Employment Policy of India

India has been one of the fastest growing economy of the World and has been termed as the growth engine of the future.

Despite this stellar performance on the economic front the situation of unemployment is India is pretty bad and is on towards a downward trajectory specially on account of excessive mechanisation and reduction of manual work.

Also technologies like Artificial Intelligence are further going to create a problem.

So it is expected that the Central Government is going to launch the First National Employment Policy of India in the Union Budget 2018.

The National Employment Policy is said to have a comprehensive roadmap outlined for all the employers and workers in a bid to create quality jobs across all sectors through economic, social and labour policy interventions.

National Employment Policy is said to broadly target Micro and Small Enterprises for job creation, will provide incentives to the employers, and will bring in reforms to attract employers.

However all these things are already happening through different policies of the government.

How the National Employment Policy will differ exactly from the current steps taken by the government can only be seen after the official government policy is out.

The problem of providing decent enough employment to 1 crore youth joining workforce every year requires a whole lot of innovation which is said to be addressed by this policy.

An official told The Economic Times, "The policy will moot fiscal incentives for employers across labour-intensive sectors to create more jobs as well as employees to get engaged in the organised sector as this would fetch them minimum wages and enough social security."

Few months back the National think tank of India - NITI AAYOG reported that more than unemployment, severe underemployment is what is troubling India more.

Unemployment means that you want a job you have a qualification but you do not have a job.

Underemployment means that you have a job but your efficiency and skills are not being properly employed and utilised.

National Employment Policy is said to be focussing on this issue in particular detail.

The article will be updated when further information regarding the policy is out.

Member of Parliament Qualification & Disqualification Procedure in India

For being a Member of Parliament in India qualifications laid down in the Constitution of India

# He must be a citizen of India.

# He must make and subscribe to an oath or affirmation before the person authorised by the election commission for this purpose.

In his oath or affirmation, he swears

1. To bear true faith and allegiance to the Constitution of India

2. To uphold the sovereignty and integrity of India

# He must be not less than 30 years of age in the case of the Rajya Sabha and not less than 25 years of age in the case of the Lok Sabha.

# He must possess other qualifications prescribed by Parliament.

Qualifications which are being laid down in the Representation of People Act (1951) and not in the Constitution of India

He has to be registered as a voter in any parliamentary constituency of India.

This is applicable for both, the Rajya Sabha and the Lok Sabha.

Before 2003, there was a rule that contesting for a Rajya Sabha seat the candidate must be an elector in the particular state from where he is contesting but this requirement has been waived off since 2003.

In 2006, the Supreme Court upheld the constitutional validity of this change.

A member of scheduled castes or scheduled tribes can also contest a seat not reserved for them.

How a Member of Parliament is disqualified in India

Disqualification Conditions of Member of Parliament laid down in the Constitution

# if he holds any office of profit under the Union or state government (except that of a minister or any other office exempted by Parliament).

# if he is of unsound mind and stands so declared by a court.

# if he is an undischarged insolvent

# 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

# if he is so disqualified under any law made by Parliament.

Disqualification Conditions of Member of Parliament laid down in the Representation of People Act (1951) and not in the Constitution of India

# He must not have been found guilty of certain election offences or corrupt practices in the elections

# He must not have been convicted for any offence resulting in imprisonment for two or more years.

# However, the detention of a person under a preventive detention law is not a disqualification.

# Should file his election expenses within the time.

# Should not be involved in government contracts, works or services.

# 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

# He must not have been dismissed from government service for corruption or disloyalty to the State.

# He must not have been convicted for promoting enmity between different groups or for bribery.

# Should not promote social crimes such as untouchability, dowry and sati.

On the question whether a member is subject to any of the above disqualifications, the president’s decision is final.

However, he should obtain the opinion of the election commission and act accordingly.

# If the Member of Parliament is disqualified on the grounds of Defection according to the provisions of the 10th schedule of India.

Lily Thomas Case 2013

Section 8(4) of RPA, 1951 gave a reprieve of three months to legislators from immediate disqualification if they were convicted for an offence, so that they could file an appeal in the higher courts.

The SC in Lily Thomas case 2013, reversing one of its own judgment of 2005 where it accepted differential treatment of legislators and candidates, invalidated Section 8(4) on the grounds that :

(i) Differential treatment of legislators and candidates violates the law of equality as envisaged under Art 14

(ii) It interpreted Article 101(3)(a) to state that any disqualification is immediate

In order to negate this judgement the Parliament subsequently passed an amendment to RPA, 1951 reinstating Section 8(4) in effect by giving a cooling off period of 90 days and allowing the convicted legislator to continue if he/she is able to get a stay on either the sentence or conviction.

The passage of this Bill without a discussion in Rajya Sabha created huge furor as it was an action that was seemingly governed by politician – criminal nexus which has led to the menace of criminalization of politics.

However the then Law Minister Mr Kapil Sibal had argued that the amendment would prevent political victimization as false charges can be filed against a person.

In light of huge public pressure, the bill was subsequently withdrawn.