Constitution of India
Article 190: Vacation of Seats
Part VI — The States
Clause (1) — Prohibition of dual membership within State Legislature
WHAT IT SAYS: No person shall be a member of both Houses (Legislative Assembly and Legislative Council) of a State Legislature; the State Legislature shall make law for vacation of one seat if elected to both. WHAT IT MEANS: If a person wins election to both the Assembly and Council of the same State, they must vacate one seat as per rules made by State law. KEY DOCTRINE: Doctrine of Exclusive Representation — a legislator must serve only one House to ensure undivided loyalty and focused representation.
Clause (2) — Prohibition of membership in Legislatures of two or more States
WHAT IT SAYS: No person shall be a member of the Legislatures of two or more States specified in the First Schedule; if so elected, all seats become vacant at expiry of a period specified in Presidential rules, unless the person has already resigned from all but one. WHAT IT MEANS: If a person wins elections in two different States, they must resign from all but one within the period prescribed by Presidential rules — otherwise, all seats are automatically vacated. KEY DOCTRINE: One Person–One State Principle — prevents inter-State conflicts of interest and divided legislative loyalties.
Clause (3)(a) — Vacation on disqualification
WHAT IT SAYS: If a member of a House of the State Legislature becomes subject to any disqualification mentioned in Article 191(1) or 191(2), his seat shall thereupon become vacant. WHAT IT MEANS: The moment a member incurs disqualification (office of profit, unsound mind, undischarged insolvent, non-citizen, defection under Tenth Schedule, etc.), the seat is automatically vacated — no separate resolution is needed. KEY DOCTRINE: Doctrine of Automatic Vacation — disqualification under Article 191 ipso facto results in vacancy under Article 190(3)(a), as clarified in K. Prabhakaran v. P. Jayarajan (2005).
Clause (3)(b) — Vacation on resignation (as amended by 33rd Amendment, 1974)
WHAT IT SAYS: If a member resigns by writing under his hand addressed to the Speaker or Chairman, and his resignation is accepted, the seat becomes vacant. Proviso: If the Speaker/Chairman is satisfied that the resignation is not voluntary or genuine, he shall not accept it. WHAT IT MEANS: A member can resign voluntarily, but the Speaker/Chairman must verify genuineness before acceptance. Forced or coerced resignations can be rejected. KEY DOCTRINE: Doctrine of Genuine Resignation — inserted by the 33rd Constitutional Amendment Act, 1974 to prevent forced mass resignations and political horse-trading.
Clause (4) — Vacation on prolonged absence
WHAT IT SAYS: If for 60 days a member is absent from all meetings of the House without permission, the House may declare his seat vacant. Proviso: Periods during which the House is prorogued or adjourned for more than 4 consecutive days are excluded from the 60-day count. WHAT IT MEANS: This is an enabling (not mandatory) provision — the House retains discretion. The 60 days count only actual meeting days, excluding prorogation and long adjournments. KEY DOCTRINE: Anti-Absenteeism Principle — ensures constituencies are not left without an active representative, as reinforced in Ashish Shelar v. Maharashtra Legislative Assembly (2022).
Constitutional Inspiration
SOURCE(S): 1. Government of India Act, 1935 — Section 68 (Vacation of seats in Provincial Legislatures) Original provision: Section 68 prohibited dual membership within a provincial legislature, provided for vacation on disqualification or resignation, and allowed seat vacancy for 60 days' absence without permission. What India kept: The Indian Constitution closely replicated the structure of Section 68 in Article 190, retaining all four scenarios of seat vacation. 2. British Parliamentary Convention — Westminster practice of exclusive representation Original provision: British Parliament has long-standing conventions that a member cannot simultaneously serve in both Houses of Parliament. What India kept: Adapted the principle of single-House exclusive membership for State Legislatures. INDIA'S SPECIFIC ADAPTATIONS: 1. Inter-State dual membership prohibition (Clause 2) — The 1935 Act addressed only Province-Centre dual membership; India added a provision for inter-State scenarios because the new republic had many more States than British India had Provinces. 2. Speaker/Chairman verification of resignation genuineness (added by 33rd Amendment, 1974) — Inserted to prevent politically motivated forced resignations, a uniquely Indian problem of mass resignations in State politics. 3. Linkage with Tenth Schedule anti-defection disqualification (via 52nd Amendment, 1985) — India added defection-based disqualification as a ground for seat vacation under Clause 3(a), a provision with no British or colonial precedent, designed to curb political defections.
Constituent Assembly Debate
DEBATED ON: 2 June 1949 (CAD Volume VIII) Draft Article Number: 166 KEY SPEAKERS: 1. Dr. B.R. Ambedkar (Chairman, Drafting Committee) — Moved amendment to insert Clause (1a) [now Clause 2] for inter-State dual membership prohibition and proposed deletion of original Clause (2). 2. Shri H.V. Kamath (C.P. & Berar) — Proposed new sub-clauses (c) and (d) to Clause (3) to vacate seats upon death of a member or recall by electors for failure to discharge duties. MAJOR DISAGREEMENTS: 1. Recall of legislators by electors — Kamath proposed that electors should be able to recall members who fail to discharge duties. This was rejected without debate, as the Assembly did not favour direct recall mechanisms. 2. Vacancy on death — Kamath argued for an express sub-clause on vacancy upon death (citing analogous provisions for President and Vice President). This too was rejected. FINAL OUTCOME: Ambedkar's amendment inserting Clause (1a) for inter-State dual membership was adopted; Kamath's proposals for recall and death-vacancy were rejected; the amended Draft Article 166 was adopted on 2 June 1949. AMBEDKAR'S KEY QUOTE: Dr. Ambedkar moved the amendment for inter-State dual membership prohibition without delivering a substantive speech — the amendment was accepted without debate.
Landmark Judgments
LANDMARK JUDGMENTS: 1. Ashish Shelar v. Maharashtra Legislative Assembly (2022) — SC held that suspension of MLAs beyond the remainder of the ongoing session is unconstitutional; suspension exceeding 60 days effectively invokes Article 190(4) and is 'worse than expulsion' as it punishes the constituency. 2. Ravi S. Naik v. Union of India (1994) — SC held that 'voluntarily giving up membership' under the Tenth Schedule has wider connotation than formal resignation; a member's conduct can establish defection, triggering seat vacation under Article 190(3)(a). 3. K. Prabhakaran v. P. Jayarajan (2005) — SC (Constitution Bench) held that disqualification under Article 191 directly and automatically leads to vacation of seat under Article 190; the date of election is the relevant date for determining disqualification. 4. Rameshwar Prasad v. Union of India (2006) — SC held that the power to declare a seat vacant must adhere to constitutional framework and principles of natural justice. 5. G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly (1996) — SC held that members who switch party affiliation without party support are disqualified under the Tenth Schedule, leading to vacation under Article 190. 6. Kihoto Hollohan v. Zachillhu (1992) — SC upheld validity of Tenth Schedule (except Paragraph 7) which operates through Article 190(3)(a) to vacate seats of defecting members. 7. K.K. Verma v. Union of India (1954) — Court addressed dual membership issue, holding that simultaneous membership in both Houses or in multiple State Legislatures violates the constitutional principle of exclusive representation. NOTABLE DISSENTS: 1. Justice K.G. Balakrishnan in K. Prabhakaran v. P. Jayarajan (2005) — Dissented on the interpretation of Section 8(3) of RPA regarding whether consecutive sentences should be totalled for disqualification purposes. SCHOLARS & JURISTS: 1. D.D. Basu — Article 190 is the State-level counterpart of Article 101 and together they ensure no legislator holds dual mandates or evades accountability. 2. M.P. Jain — The 33rd Amendment's proviso to Clause (3)(b) represents a vital safeguard against political manipulation of the resignation process in State legislatures.