Membership of the State Legislature

This part tells us who can become a member of the State Legislature, what disqualifies them, and when they lose their seat.
We’ll study this under four heads:

1. Qualifications

The Constitution (and later, the Representation of the People Act, 1951) lays down who is eligible to become a member of the Legislative Assembly or Council.

🧠 Constitutional Qualifications

A person must:

1. Be a citizen of India.
   → Only Indian citizens can represent the people of India.
2. Make and subscribe to an oath or affirmation before a person authorised by the Election Commission.
   In this oath, the person swears:
   • To bear true faith and allegiance to the Constitution of India, and
   • To uphold the sovereignty and integrity of India.
3. Meet the minimum age requirement:
   • 30 years for the Legislative Council, and
   • 25 years for the Legislative Assembly.
4. Possess other qualifications prescribed by Parliament.
   → These are specified in the Representation of the People Act (RPA), 1951.

📘 Additional Qualifications under RPA, 1951

According to this law:

1. To be elected to the Legislative Council:
   • The person must be an elector for an Assembly constituency in that state.
   • For Governor’s nomination, he/she must be a resident of that state.
2. To be elected to the Legislative Assembly:
   • The person must be an elector for an Assembly constituency in that state.
3. For reserved seats (SC/ST):
   • The candidate must belong to that Scheduled Caste or Scheduled Tribe if contesting a reserved seat.
   • However, an SC/ST candidate can also contest from a general seat (not reserved).

📍 This ensures representation without restricting opportunity.

2. Disqualifications

Just as there are qualifications to enter, there are grounds for disqualification — situations in which a person cannot become or continue as a member of the State Legislature.

A. Constitutional Disqualifications

Under the Constitution, a person is disqualified if:

1. Holds an “office of profit” under the Union or State government
   (except for being a Minister or holding an office exempted by the State Legislature).

Idea: To maintain independence of legislators — they should not be financially dependent on the executive.

2. Is of unsound mind, declared so by a competent court.
3. Is an undischarged insolvent, i.e., has not paid off his debts and is declared insolvent.
4. Is not a citizen of India, or
   has voluntarily acquired citizenship of a foreign state, or
   has allegiance to a foreign power.
5. Is disqualified under any law made by Parliament.
   → This gives power to Parliament to add more disqualifications through legislation.

B. Disqualifications under the Representation of the People Act, 1951

Parliament, under this Act, has prescribed additional disqualifications, which apply both to Parliament and to State Legislatures.

A person is disqualified if:

• ⚖️ Has been found guilty of electoral offences or corrupt practices during elections.
• 🚫 Has been convicted of an offence resulting in imprisonment of two years or more.
  (Preventive detention does not count.)
• 💰 Has failed to submit election expense accounts within the prescribed time.
• 💼 Has any interest in government contracts, works, or services.
• 🏢 Is a director, managing agent, or office-holder in a government-controlled corporation (25% or more shareholding).
• ❌ Has been dismissed from government service for corruption or disloyalty to the state.
• 🔥 Has been convicted for promoting enmity between groups, or for bribery.
• ⚖️ Has been punished for practicing or propagating social crimes like untouchability, dowry, or sati.

🧾 Final Authority: Governor (with EC’s advice)

If a question arises whether a member has become subject to any of these disqualifications,
👉 the Governor’s decision is final, but only after consulting the Election Commission.

So, the Governor must act according to the EC’s opinion, ensuring neutrality.

⚖️ Disqualification on the Ground of Defection (Tenth Schedule)

Apart from the above, a member can also be disqualified under the Tenth Schedule —
👉 the Anti-Defection Law.

• It applies if a member defects from his party (i.e., voluntarily gives up membership, or votes against party directions).
• The deciding authority is:
  • The Speaker (for Assembly), or
  • The Chairman (for Council).

However, in the landmark Kihoto Hollohan Case (1992),
the Supreme Court held that the decision of Speaker/Chairman is subject to judicial review — i.e., courts can examine it if there’s bias or violation of natural justice.

3. Oath or Affirmation

Before a member can sit, vote, or participate in the House, he/she must first take an oath or affirmation before the Governor (or someone appointed by the Governor).

In this oath, the member swears:

1. To bear true faith and allegiance to the Constitution of India,
2. To uphold the sovereignty and integrity of India, and
3. To faithfully discharge the duties of his/her office.

Without taking this oath:

• The person cannot sit or vote,
• Does not get legislative privileges, and
• Is liable to a fine of ₹500 per day for sitting or voting unlawfully.

This penalty also applies if:

1. He/she sits or votes without being qualified or despite disqualification, or
2. Is prohibited from voting/sitting under any law.

💰 Salaries and Allowances

Members of a state legislature are entitled to salaries and allowances as determined by the State Legislature itself —
meaning each state can fix its own pay structure for MLAs and MLCs.

4. Vacation of Seats

A seat in the State Legislature can fall vacant for several reasons.
Let’s understand them one by one.

1️⃣ Double Membership

• A person cannot be a member of both Houses of the same State Legislature at once.
• If elected to both, one seat automatically falls vacant, as per law made by the State Legislature.

2️⃣ Disqualification

• If a member becomes subject to any disqualification (as discussed earlier),
  → his/her seat becomes vacant automatically.

3️⃣ Resignation

• A member may resign from his/her seat by writing to:
  • The Speaker (if Assembly), or
  • The Chairman (if Council).
• The seat falls vacant once the resignation is accepted.
  (The presiding officer may verify genuineness before accepting.)

4️⃣ Absence

• If a member remains absent from all meetings of the House for 60 days without permission,
  → the House can declare the seat vacant.

5️⃣ Other Cases

A member must vacate his/her seat also if:

1. His/her election is declared void by a competent court.
2. He/she is expelled by the House itself.
3. He/she is elected as President or Vice-President of India.
4. He/she is appointed as Governor of a state.

🧭 In Essence

The idea behind these provisions is purity and integrity of the legislature.
The Constitution ensures that:

• Only qualified, loyal, and accountable individuals enter the legislature,
• That they perform duties faithfully,
• And that anyone violating constitutional morality — through corruption, defection, or disloyalty — loses the seat.