Membership of State Legislature

Membership of State Legislature

• • The state legislature occupies a preeminent and central position in the political system of a state.
  • Articles 168 to 212 in Part VI of the Constitution deal with the organisation, composition, duration, officers, procedures, privileges, powers and so on of the state legislature. Though these are similar to that of Parliament, there are some differences as well.
  • Most of the states have a unicameral system, while others have a bicameral system.
  • The legislative assembly consists of representatives directly elected by the people on the basis of universal adult franchise while the members of the legislative council are indirectly elected.

Qualifications – Membership of State Legislature

• • The Constitution lays down the following qualifications for a person to be chosen a member of the state legislature –
    1. Must be a citizen of India
    2. 25 years or above for Legislative Assembly
    3. 30 years or above for Legislative Council
    4. Possess such other qualifications as may be prescribed by the Parliament.
    5. 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 –
       • To bear true faith and allegiance to the Constitution of India
       • To uphold the sovereignty and integrity of India

Additional Qualifications under Representation of People Act (1951)

• • • A person to be elected to the legislative council must be an elector for an assembly constituency in the concerned state and to be qualified for the governor’s nomination, he must be a resident in the concerned state.
    • A person to be elected to the legislative assembly must be an elector for an assembly constituency in the concerned state
    • He must be a member of a SC or ST if he wants to contest a seat reserved for them. However, a member of SC or ST can also contest a seat not reserved for them.

Disqualification – Membership of State Legislature

Under the provisions of 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, if he –
      1. Holds an office of profit under GOI or any State Government, other than that of a Minister at the centre or any state or an office declared by a law of the State (except any exemption made by certain states)
      2. Mentally unsound as declared by a competent Court
      3. An undischarged insolvent
      4. Not an Indian citizen or has voluntarily got the citizenship of a foreign State or is under any acknowledgement of adherence/allegiance to a foreign nation
      5. Disqualified under any law made by Parliament

Disqualification under Representation of Peoples 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. 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
      9. Section 8 (3) of the Act states that if an MP or MLA is convicted for any other crime and is sent to jail for 2 years or more, he/ she will be disqualified for 6 years from the time of release.

Ruling Of Supreme Court Regarding Section 8(4) – RPA

• • • Section 8(4) allowed convicted MPs, MLAs and MLCs to continue in their posts, provided they appealed against their conviction/sentence in higher courts within 3 months of the date of judgment by the trial court
    • The Supreme Court in July 2013 struck down section 8(4) of the RPA, 1951 and declared it ultra vires and held that the disqualification takes place from the date of conviction.

Disqualification on ground of Defection

• • • 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).
    • The Supreme Court in 1992 ruled that the decision of the Chairman/Speaker in this regard is subject to judicial review.

Anti-Defection Law

• • • • • The Tenth Schedule was inserted in the Constitution in 1985 by the 52nd Amendment Act.
        • It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
        • The decision on question as to disqualification on ground of defection is referred to the Chairman or the Speaker of such House, and his decision is final.
        • The law applies to both Parliament and state assemblies.

Oath or Affirmation

• • Article 164(3) states that before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out in the Third Schedule.
    • 1. In this oath, a member of the state legislature swears:
      2. to bear true faith and allegiance to the Constitution of India;
      3. to uphold the sovereignty and integrity of India; and
      4. 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.

Salary and Allowances

• • 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.

Vacation of Seats

• • In the following cases, a member of the state legislature vacates his seat –
    1. Double Membership – A person cannot be a member of both Houses of state legislature at one and the same time
    2. Disqualification – If a member of the state legislature becomes subject to any of the disqualifications, his seat becomes vacant.
    3. 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 accepted.
    4. 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
    5. Other Cases –
       1. If his election is declared void by the Court.
       2. If he is expelled by the house.
       3. if he is elected to the office of President or office of vice-President
       4. if he is appointed to the office of governor of a state

So, this is all about the Membership of State Legislature. If you want to read more notes on Indian Polity – Click Here.

In the Next Post (Click Here), we will learn about the Presiding Officers of State Legislature.

 

If you Like this Post than please share it with your friends and family and like our Facebook Page to get regular updates. Sharing is Caring J.