Constitution of India
Article 104: Penalty for sitting and voting before making oath or affirmation under Article 99 or when not qualified or when disqualified
Part V — The Union (Chapter II — Parliament, Sub-heading: Disqualifications of Members)
Article 104 (Single, undivided article — no sub-clauses)
WHAT IT SAYS: Any person who sits or votes in either House of Parliament (a) before taking oath/affirmation under Article 99, (b) knowing he is not qualified or is disqualified, or (c) being prohibited by any law made by Parliament — shall pay Rs. 500 per day as penalty, recoverable as a debt due to the Union. WHAT IT MEANS: 1. Creates a CIVIL (not criminal) liability — penalty is recovered as a debt, not a fine in criminal law. 2. Applies to BOTH Lok Sabha and Rajya Sabha. 3. Covers THREE triggers: (i) non-compliance with Article 99 oath, (ii) knowledge of disqualification under Article 102, (iii) violation of any parliamentary law. 4. Mens rea required only for disqualification limb — person must KNOW he is disqualified. 5. Penalty is per-day — accrues for each day the person sits or votes. 6. Amount (Rs. 500) has NOT been revised since 1950 — remains at its original level. KEY DOCTRINE: Doctrine of Constitutional Deterrence — the provision acts as a preventive safeguard rather than a punitive measure, ensuring legitimacy of parliamentary proceedings through civil liability.
Constitutional Inspiration
SOURCE(S): 1. Government of India Act, 1935 — Section 27 Original provision: Section 27 imposed a penalty of Rs. 500 per day on any person who sat or voted in either Chamber of the Federal Legislature when not qualified or disqualified, recoverable as a debt due to the Federation. What India kept: Almost verbatim adoption — same penalty amount (Rs. 500), same recovery mechanism (debt due to the Union instead of Federation), same per-day basis. 2. British Parliamentary Practice Original provision: Under the Parliamentary Oaths Act, 1866, a member voting without taking the oath was liable to a penalty of £500 per vote, recoverable as a debt. What India kept: The concept of monetary penalty for unauthorised participation and civil (not criminal) recovery. INDIA'S SPECIFIC ADAPTATIONS: 1. Added reference to Article 99 oath — The 1935 Act did not have a separate oath article; India linked the penalty explicitly to the oath/affirmation requirement under Article 99. 2. Expanded to cover 'any law made by Parliament' — The 1935 Act referred only to disqualification provisions; Article 104 also covers prohibitions arising from future parliamentary legislation (e.g., Representation of the People Act, 1951). 3. Changed 'Federation' to 'Union' — Reflecting India's choice of a Union (not a Federation) in nomenclature, as per Article 1.
Constituent Assembly Debate
DEBATED ON: 19 May 1949 (CAD Volume VIII) DRAFT ARTICLE NUMBER: Draft Article 84 KEY SPEAKERS: 1. Dr. B.R. Ambedkar — Moved the draft article for adoption; no substantive speech needed as it was non-controversial. 2. No other members spoke — Amendments Nos. 1609 to 1618 were NOT moved by any member. MAJOR DISAGREEMENTS: None — There was no substantive debate on this article. FINAL OUTCOME: Draft Article 84 was adopted without any amendments on 19 May 1949, with no opposition or discussion. NOTE ON DRAFT VERSION: The original Draft Article 84 referred to 'article 81' (oath provision) and 'Government of India' instead of 'the Union'. These were renumbered and corrected during the final consolidation by the Drafting Committee. AMBEDKAR'S KEY QUOTE: No specific quote recorded — the article was adopted on the nod without debate.
Landmark Judgments
LANDMARK JUDGMENTS: 1. Article 104 has NOT been the subject of extensive direct judicial interpretation by the Supreme Court. Courts have noted it is a deterrent provision rarely invoked in practice. 2. Brundaban Nayak v. Election Commission of India (1965) — Held that disqualification of a sitting member can be raised by any citizen before the President, who must refer it to the Election Commission under Article 103. (Indirectly relevant — determines WHEN a member becomes disqualified, which triggers Article 104 liability.) 3. Lily Thomas v. Union of India (2013) — Struck down Section 8(4) of the RPA, 1951; held that a convicted MP/MLA is immediately disqualified upon conviction. (Indirectly relevant — clarifies the moment of disqualification after which sitting/voting attracts Article 104 penalty.) 4. Election Commission of India v. Saka Venkata Rao (1953) — Held that only POST-ELECTION disqualifications fall under Articles 103/104 mechanism; pre-election disqualifications must be challenged via election petition. (Defines the jurisdictional boundary of Article 104's operation.) NOTABLE DISSENTS: None specifically on Article 104. SCHOLARS & JURISTS: 1. D.D. Basu — Observed that Article 104 creates a civil liability (not criminal) and the penalty is recoverable as a simple debt due to the Union; courts have endorsed this civil-debt characterisation. 2. M.P. Jain — Noted that the Rs. 500 per-day penalty is outdated and has negligible deterrent value in modern times, calling it a symbolic provision rather than an effective sanction. PARALLEL PROVISION: Article 193 is the identical provision for State Legislatures — penalty of Rs. 500/day recoverable as a debt due to the State, linked to oath under Article 188.