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UPSC MainsGENERAL-STUDIES-PAPER-II201915 Marks
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Q11.

On what grounds a people's representative can be disqualified under the Representation of Peoples Act, 1951? Also mention the remedies available to such person against his disqualification.

How to Approach

This question requires a detailed understanding of the grounds for disqualification of a people's representative as outlined in the Representation of the People Act, 1951. The answer should be structured to first define key terms, then systematically list the grounds for disqualification (both at the time of election and after election), and finally, detail the remedies available to the disqualified person. A clear and concise presentation, referencing specific sections of the Act, is crucial.

Model Answer

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Introduction

The bedrock of any democratic system lies in the fair and legitimate representation of its citizens. The Representation of the People Act, 1951, along with its subsequent amendments, provides the legal framework for conducting elections in India and outlines the criteria for eligibility and disqualification of candidates. Disqualification ensures that individuals who are deemed unfit to hold public office, due to legal or constitutional reasons, are prevented from participating in the electoral process. Understanding the grounds for disqualification and the available remedies is vital for upholding the integrity of the Indian democratic process.

Grounds for Disqualification under the Representation of the People Act, 1951

The Representation of the People Act, 1951, lays down various grounds for disqualification, which can be broadly categorized into disqualifications at the time of election and disqualifications after election.

I. Disqualification at the Time of Election (Section 8 of the RP Act, 1951)

  • Criminal Conviction: A person convicted of any offence under the Indian Penal Code (IPC) or any other law, and sentenced to imprisonment for two years or more, is disqualified. This disqualification continues for six years after release.
  • Pending Criminal Cases: If a court has framed charges for an offence punishable with imprisonment for two years or more, the person is disqualified until the case is decided.
  • Dismissal from Government Service: A person dismissed from government service is disqualified until five years after dismissal.
  • Contempt of Court: Conviction for contempt of court is a ground for disqualification.
  • Unsound Mind: Declared as unsound mind by a competent court.
  • Not a Citizen of India: Not being a citizen of India.
  • Age Requirement: Not attaining the prescribed age (25 years for Lok Sabha, 30 years for Rajya Sabha).
  • Government Contractorship: Having a contract with the government for supplying goods or services.

II. Disqualification After Election (Section 10 of the RP Act, 1951)

  • Holding an Office of Profit: A person holding an office of profit under the Central or State Government (other than a minister) is disqualified. This is to prevent conflicts of interest. The definition of 'office of profit' has been subject to judicial interpretation, notably in the Office of Profit Case (2006).
  • Disqualification under the Constitution: Article 102(1) and 191(1) of the Constitution provide grounds for disqualification, including holding a position incompatible with being a member of Parliament or State Legislature.
  • Defection (Tenth Schedule): The Tenth Schedule of the Constitution, added in 1985, deals with disqualification on grounds of defection. A member is disqualified if they voluntarily give up membership of their political party or vote against the party whip.
  • Bankruptcy: Being declared bankrupt.
  • Alienation of Property: Alienating property to avoid debts.
  • Conviction for certain offences: Conviction for offences like promoting enmity between groups, bribery, or offences under the Prevention of Corruption Act.

Remedies Available Against Disqualification

A person disqualified under the RP Act or the Constitution has several remedies available:

  • Appeal to the High Court: An appeal can be filed before the High Court challenging the disqualification order.
  • Appeal to the Supreme Court: An appeal can be filed before the Supreme Court against the decision of the High Court.
  • Election Petition: An election petition can be filed challenging the election of a person who was disqualified after the election.
  • Judicial Review: The courts have the power of judicial review to examine the validity of the disqualification order.
  • Mercy Petition: In cases of conviction, a mercy petition can be filed before the President or Governor seeking pardon, which may remove the disqualification.

The process of disqualification and the remedies available are often complex and subject to judicial interpretation. The Election Commission of India (ECI) plays a crucial role in initiating the process of disqualification in many cases, based on information received from various sources.

Conclusion

The grounds for disqualification under the Representation of the People Act, 1951, and the Constitution are essential safeguards to maintain the integrity and fairness of the electoral process. While these provisions aim to prevent individuals with questionable backgrounds or conflicting interests from holding public office, the availability of remedies ensures that individuals are not unjustly deprived of their right to participate in the democratic process. Continuous judicial scrutiny and legislative updates are necessary to address evolving challenges and ensure the effectiveness of these provisions.

Answer Length

This is a comprehensive model answer for learning purposes and may exceed the word limit. In the exam, always adhere to the prescribed word count.

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Additional Resources

Key Definitions

Office of Profit
An office of profit is any position that provides financial benefit to the holder, directly or indirectly, from the government. The definition has been a subject of debate and judicial interpretation, aiming to prevent conflicts of interest between legislators and executive positions.
Defection
Defection refers to the act of a political party member formally joining another political party or voting against their party's directives. The Tenth Schedule of the Constitution was introduced to address the issue of political defection and maintain the stability of governments.

Key Statistics

According to PRS Legislative Research, as of December 2023, over 200 MPs and MLAs have faced disqualification proceedings since 1952, primarily on grounds of defection and criminal convictions.

Source: PRS Legislative Research

According to a report by the Association for Democratic Reforms (ADR), in the 2019 Lok Sabha elections, 233 out of 543 elected MPs had criminal records.

Source: Association for Democratic Reforms (ADR)

Examples

Jayalalithaa Disqualification Case (2011)

In 2011, the Madras High Court disqualified then Tamil Nadu Chief Minister J. Jayalalithaa from contesting elections for six years due to her conviction in a disproportionate assets case. This case highlighted the application of the disqualification provisions related to criminal convictions.

Frequently Asked Questions

▶What is the role of the Election Commission in disqualification?

The Election Commission of India (ECI) plays a crucial role in initiating disqualification proceedings, particularly in cases of defection under the Tenth Schedule. It receives representations and evidence and makes recommendations to the Speaker of the Legislative Assembly or the Chairman of the Rajya Sabha, who ultimately decides on the disqualification.

Topics Covered

PolityLawElection LawConstitutional LawPolitical Representation
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