Constitution of India
Article 191: Disqualifications for membership
Part VI — The States (Chapter III — The State Legislature)
Clause (1) — Grounds of disqualification for State Legislature membership
WHAT IT SAYS: 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: (a) He holds any office of profit under the Government of India or any State (First Schedule), unless exempted by the State Legislature by law. (b) He is of unsound mind and declared so by a competent court. (c) He is an undischarged insolvent. (d) He is not a citizen of India, or has voluntarily acquired foreign citizenship, or acknowledges allegiance/adherence to a foreign State. (e) He is disqualified by or under any law made by Parliament. EXPLANATION to Clause (1): A person is NOT deemed to hold an office of profit merely because he is a Minister for the Union or for such State. WHAT IT MEANS: 1. Five exhaustive grounds bar a person from BOTH contesting AND continuing as MLA/MLC. 2. State Legislature can exempt specific offices from the 'office of profit' bar. 3. Parliament can add further grounds via ordinary law (e.g., Representation of the People Act, 1951). 4. Ministers are expressly protected from the office-of-profit disqualification. KEY DOCTRINE: 'Office of Profit' Doctrine — rooted in separation of powers; prevents executive influence over legislators.
Clause (2) — Disqualification on ground of defection (Tenth Schedule)
WHAT IT SAYS: A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule. WHAT IT MEANS: 1. Links state legislators to anti-defection law (added by 52nd Amendment, 1985). 2. Defection = voluntarily giving up party membership OR voting against party whip without condonation. 3. Decision on defection-based disqualification is made by the Speaker (Assembly) or Chairman (Council). KEY DOCTRINE: Anti-Defection Doctrine — prevents political horse-trading and ensures party discipline in legislatures.
Constitutional Inspiration
SOURCE(S): 1. United Kingdom — Act of Settlement, 1701 (Section 3) Original provision: No person holding an office of profit under the King or receiving a pension from the Crown could serve in the House of Commons. What India kept: The 'office of profit' disqualification concept was directly adopted for legislators at both Union (Art. 102) and State (Art. 191) levels. 2. United Kingdom — Government of India Act, 1935 (Sections 68–69) Original provision: Laid down disqualifications for Provincial Legislature members including insolvency, unsoundness of mind, and office of profit. What India kept: Almost identical five-fold grounds of disqualification were retained. INDIA'S SPECIFIC ADAPTATIONS: 1. State Legislature can itself exempt offices from disqualification — In UK, only Parliament could exempt; India gave this power to State Legislatures for state-level offices to respect federalism. 2. Parliament given residuary power under clause (1)(e) to add further disqualifications — This ensures uniform standards nationally while leaving basic exemptions to States. 3. Clause (2) on anti-defection (52nd Amendment, 1985) — Unique Indian contribution; no equivalent existed in UK; addressed chronic political instability caused by floor-crossing in States. 4. Explicit exemption for Ministers in the Explanation — India's parliamentary system requires Ministers to be legislators, so the framers specifically clarified Ministers are not holding an 'office of profit'.
Constituent Assembly Debate
DEBATED ON: 2 June 1949 (CAD Volume VIII) Draft Article Number: 167 KEY SPEAKERS: 1. Dr. B.R. Ambedkar (Chairman, Drafting Committee) — Moved amendment to sub-clause (1)(d) to disqualify persons who acquired foreign citizenship or acknowledged allegiance/adherence to a foreign State. 2. Prof. K.T. Shah — Proposed expanding disqualification to include persons holding shares in companies supplying materials or having building contracts with the government; rejected without debate. 3. Shri H.V. Kamath (C.P. & Berar) — Suggested replacing 'and' with 'or' between sub-clauses for clarity; left to Drafting Committee's discretion. 4. Shri Mahavir Tyagi — Questioned whether allegiance to England under Commonwealth status would be a disqualification; Ambedkar responded it would be dealt with by the Nationality Act. 5. Shri T.T. Krishnamachari (Madras) — Proposed substituting clause (2)(a) and (b) to read 'He is a minister either for India or for any such State', aligning it with Draft Article 83 (Article 102); accepted without debate. MAJOR DISAGREEMENTS: 1. Scope of 'office of profit' — Prof. K.T. Shah wanted it to include company shareholders/contractors; rejected as too broad. 2. Meaning of 'adherence' — One member found it ambiguous; Ambedkar clarified it covered obeying military rule of an invader. FINAL OUTCOME: Draft Article 167 was adopted on 2 June 1949 with Ambedkar's amendment to clause (1)(d) and Krishnamachari's amendment to clause (2) on ministerial exemption. AMBEDKAR'S KEY QUOTE: On 'adherence' — it applies when a person continues to obey military rule imposed by an invader even when it is no longer necessary.
Landmark Judgments
LANDMARK JUDGMENTS: 1. Election Commission of India v. Saka Venkata Rao (1953) — Article 191 lays down the same set of disqualifications for being chosen AND for continuing as a member; no distinction between the two. 2. Maulana Abdul Shakur v. Rikhab Chand (1958) — Defined 'office of profit': government's power of appointment, removal, and payment from government revenues are key determinants. 3. Srimati Kanta Kathuria v. Manak Chand Surana (1969) — State Legislature can retrospectively remove disqualification for holding an office of profit; such retrospective legislation is constitutionally valid. 4. Kihoto Hollohan v. Zachillhu (1992) — Upheld constitutional validity of Tenth Schedule (anti-defection law); Speaker has quasi-judicial authority in defection cases under Art. 191(2), subject to limited judicial review. 5. Pradyut Bordoloi v. Swapan Roy (2001) — Laid down four-factor test for 'office of profit': (i) government control over appointment/removal, (ii) remuneration attached, (iii) whether the body exercises government powers, (iv) whether the office enables patronage. 6. K. Prabhakaran v. P. Jayarajan (2005) — Disqualification under Article 191 directly leads to vacation of seat under Article 190. 7. Jaya Bachchan v. Union of India (2006) — Upheld disqualification of Rajya Sabha member for holding office of profit as Chairperson of UP Film Development Corporation. 8. Lily Thomas v. Union of India (2013) — Struck down Section 8(4) of RPA 1951 as ultra vires; Parliament cannot defer disqualification of convicted sitting legislators, as Articles 102/191 mandate same disqualification for 'being chosen' and 'being' a member. NOTABLE DISSENTS: 1. None formally recorded; however, in Kihoto Hollohan (1992), two judges dissented on judicial review of Speaker's decisions under the Tenth Schedule. SCHOLARS & JURISTS: 1. 2nd Administrative Reforms Commission — Recommended amending the Constitution or RPA 1951 to clearly define 'office of profit' to end persistent ambiguity. 2. Joint Committee on Office of Profit (Parliament) — Standing body (10 Lok Sabha + 5 Rajya Sabha members) that recommends which offices should or should not disqualify legislators under Articles 102 and 191. AMENDMENT HISTORY OF ARTICLE 191: 1. 42nd Amendment Act, 1976 (s.33) — Substituted clause (1)(a): shifted power to declare disqualifying offices from State Legislature to Parliament. (w.e.f. 3-1-1977) 2. 44th Amendment Act, 1978 (s.25) — Restored original position: power to exempt offices returned to State Legislature. (w.e.f. 20-6-1979) 3. 52nd Amendment Act, 1985 (s.4) — Substituted clause (2): introduced disqualification on ground of defection under the Tenth Schedule. (w.e.f. 1-3-1985) 4. 33rd Amendment Act, 1974 (s.3) — Amended sub-clause (b) of clause (1) relating to resignation procedures (related to Article 190).