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Thursday, November 3, 2011

Q. How is the question of disqualification of a member of Parliament decided?

Ans. Under the provisions of Article 102, the following grounds are mentioned, which disqualify a person for being chosen as, and for being a member of either House of Parliament. These are—
(1) if such person holds any office of profit under government;
(2) if he is of unsound mind;
(3) if he is an undischarged insolvent;
(4) if he is not a citizen of India or has voluntarily acquired c1tizen ship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign state.
(5) if he is so disqualified by or under a law made by Parliament;
(6) if he has become subject to the provisions of Anti-Defection provisions under Tenth Schedule.
If a question arises as to whether a member has become subject to these disqualifications such question is decided by the President after obtaining the opinion of the Election Commission and the President shall act according to such opinion.
However, in case of disqualifications under the anti-defection provisions, under Tenth Schedule of the Constitution the Speaker or the Chairman of respective Houses has the power to decide the matter. The decision of the Speaker or the Chairman may be challenged in the Court of law. The Para 7 of the Tenth Schedule (Bar of jurisdiction of courts) was declared invalid for want of rectification in accordance with the proviso to clause (2) of article 368 as per majority opinion in Kihoto Hollohon Vs . Zachilhy and others (1992) I.S.C.C. 309. See footnote of page 186 of Constitution of India, 1996 edition of the Ministry of Law and Justice.

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