A person can be disqualified from being chosen as, and from being, a Member of Parliament or a State Legislature on multiple grounds. Some disqualifications are constitutional (Articles 102 and 191) — including unsoundness of mind, insolvency, foreign citizenship, and the holding of an office of profit. Others are statutory — primarily under the Representation of the People Act 1951. The most consequential statutory ground is Section 8, which disqualifies persons convicted of certain offences. The Supreme Court's judgment in Lily Thomas v. Union of India (2013) struck down Section 8(4) — which had given convicted MPs and MLAs three months to file appeals before disqualification took effect. Hold the constitutional and statutory architecture, the office of profit doctrine, and the recent jurisprudence.
Constitutional grounds — Articles 102 and 191
The Constitution itself specifies certain disqualifications for membership of Parliament (Article 102) and State Legislatures (Article 191). The provisions are virtually identical.
Article 102(1) — Disqualifications for Parliament:
(a) "if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder."
(b) "if he is of unsound mind and stands so declared by a competent court."
(c) "if he is an undischarged insolvent."
(d) "if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State."
(e) "if he is so disqualified by or under any law made by Parliament."
Article 102(2) — A person shall be disqualified if, at the time of nomination or election, he is a member of any defection covered under the Tenth Schedule. (See anti-defection law for details.)
Article 191 mirrors Article 102 for State Legislatures. The grounds are the same; the appointing/deciding authorities differ (Governor instead of President).
The constitutional disqualifications operate at two stages:
(i) Pre-election — disqualifications on being chosen. A disqualified person cannot file nomination, be nominated, or be elected.
(ii) Post-election — disqualifications on continuing as a member. If a member becomes disqualified after election, the seat falls vacant.
Article 103 — decision-making. If any question arises whether a Member of either House has become disqualified, the question is referred to the President. The President's decision is final. The President obtains the opinion of the Election Commission and acts on that opinion.
Article 192 — same procedure for State Legislatures, with the Governor and State Election Commission.
Office of profit — the most contested ground
The disqualification under Article 102(1)(a) — holding an office of profit under the Central or State Government — has been the most litigated and politically contested.
Constitutional logic. A person who holds an office of profit under the government may face conflict between their duties as a legislator (which include holding the executive accountable) and their financial dependence on government employment. To prevent this conflict, the Constitution disqualifies office-of-profit holders.
What constitutes an "office of profit"? The Constitution does not define the term. The Supreme Court has developed tests through cases:
(i) Pecuniary gain test — does the person receive financial benefit from the office? Honoraria, salary, allowances, perquisites all count. If the office yields no pecuniary gain, it is generally not an office of profit.
(ii) Government control test — does the government appoint, remove, or control the holder? If yes, the office is an office under the government.
(iii) Functional test — does the office involve functions or duties for which the government is responsible? Even bodies established by the government may not always be "under" the government for this purpose.
Parliament (Prevention of Disqualification) Act 1959. Parliament, under Article 102(1)(a)'s exception, has enacted legislation declaring certain offices not to disqualify their holders. The 1959 Act exempts a long list of offices — including ministerial offices, certain advisory positions, certain government-appointed functions. The Act has been amended five times to add more exempted offices.
The 2019 Prelims tested this specifically:
- The Parliament (Prevention of Disqualification) Act, 1959 exempts several posts from disqualification on the grounds of 'Office of Profit'.
- The above-mentioned Act was amended five times.
- The term 'Office of Profit' is well-defined in the Constitution of India.
Notable cases on office of profit.
Pradyut Bordoloi v. Swapan Roy (2001) — Chairman of a State Council was held to be an office of profit.
Jaya Bachchan v. Union of India (2006) — actress and Rajya Sabha MP was disqualified for being Chairperson of UP Film Development Corporation. The Supreme Court applied the pecuniary gain and government control tests strictly.
Consumer Education and Research Society v. Union of India (2009) — disqualification on office of profit grounds requires the President's decision under Article 103 (or Governor under Article 192). The decision must be made on the EC's opinion.
The 2006 Office of Profit Bill controversy involved the Sonia Gandhi case. She was Chairperson of the National Advisory Council — a position created in 2004 with cabinet rank. The Election Commission opined this was an office of profit. Mrs. Gandhi resigned from her Lok Sabha seat. Parliament then enacted the Parliament (Prevention of Disqualification) Amendment Act 2006, exempting 55 offices (including the NAC Chairperson position) retrospectively. Mrs. Gandhi was re-elected.
RPA Section 8 — conviction-based disqualification
Section 8 of the Representation of the People Act 1951 specifies disqualifications based on conviction for offences. This is the most operationally important statutory disqualification.
Section 8(1) — Disqualification for offences carrying minimum imprisonment of 2 years. A person convicted of any offence under specified sections of the Indian Penal Code, Representation of the People Act, Protection of Civil Rights Act, Sati (Prevention) Act, Prevention of Corruption Act, Prevention of Terrorism Act, etc. — and sentenced to imprisonment for more than two years — shall be disqualified from being chosen as, and from being, a Member of Parliament or a State Legislature, for a period of six years.
The list of specified offences includes:
(i) Sections 153A and 295A IPC — promoting enmity between groups.
(ii) Sections 171E and 171F IPC — bribery and undue influence at elections.
(iii) Sections 505(2) and 505(3) IPC — making statements creating public mischief.
(iv) Sections 125, 135, 136 of the RPA — corrupt practices at elections.
(v) Protection of Civil Rights Act 1955 — untouchability offences.
(vi) Prevention of Corruption Act 1988 — corruption offences.
(vii) Prevention of Terrorism Act, NDPS Act, etc. — for serious offences.
Section 8(2) — Disqualification for hoarding/profiteering/adulteration offences. A person convicted of contravention of any law providing for the prevention of hoarding, profiteering, or adulteration of food and drugs, and sentenced to imprisonment for not less than six months — shall be disqualified for six years.
Section 8(3) — Catch-all category. A person convicted of any offence and sentenced to imprisonment for not less than two years (other than offences referred to in 8(1) and 8(2)) — shall be disqualified for the period of imprisonment plus six years after release.
This is the most commonly invoked provision. Any conviction with two-year-plus imprisonment, regardless of the offence type, triggers disqualification.
Section 8(4) — STRUCK DOWN. Originally provided that an MP/MLA convicted while holding office could continue to hold the seat for three months, during which they could file an appeal. The Supreme Court in Lily Thomas v. Union of India (2013) struck down Section 8(4) as unconstitutional. After this judgment, conviction triggers immediate disqualification regardless of appeal.
Section 9 — Disqualification for corrupt practices. Persons found by an Election Commission opinion or court ruling to have committed corrupt practices in elections are disqualified for six years.
Section 9A — Disqualification for government contracts. Persons having a subsisting contract with the appropriate government for goods/services or for the execution of works are disqualified.
Section 10 — Disqualification for failure to lodge accounts. Persons who fail to lodge an account of election expenses within the specified time are disqualified for three years.
Section 11 — Removal of disqualification. The Election Commission may, for reasons to be recorded, remove any disqualification under Sections 8(1), 8(2), 8(3), 9, or 10. This is a discretionary power that has been used sparingly.
Lily Thomas v. Union of India (2013)
Lily Thomas v. Union of India (2013) is the landmark Supreme Court judgment that struck down Section 8(4) of the RPA.
Section 8(4) before Lily Thomas. Section 8(4) provided that the disqualification under Sections 8(1), 8(2), and 8(3) — for sitting MPs and MLAs at the time of conviction — would not take effect for three months from the date of conviction. During this three-month window, the MP/MLA could file an appeal against the conviction. If the appeal was filed within the window, the disqualification would be suspended until the appeal was disposed of.
This effectively meant that sitting MPs and MLAs could continue to hold office despite conviction, as long as they kept filing appeals. Many MPs and MLAs faced criminal cases that were still under appeal.
Challenge. Lily Thomas, an advocate, and others challenged Section 8(4) as unconstitutional — arguing that it created an unjustified distinction between sitting MPs/MLAs and other persons. A non-sitting candidate convicted under Sections 8(1)-(3) was immediately disqualified; a sitting MP/MLA had three months and possibly indefinite extension through appeal.
Holding. The Supreme Court (two-judge bench) held:
(i) Section 8(4) is UNCONSTITUTIONAL as it violates Articles 102(1)(e) and 191(1)(e) read with Articles 102(1)(a) and 191(1)(a).
(ii) Parliament has no power to make laws under Articles 102(1)(e) or 191(1)(e) that defer disqualification or distinguish between sitting members and other candidates.
(iii) Once a person is convicted under Sections 8(1), 8(2), or 8(3) of the RPA, the disqualification takes effect IMMEDIATELY — regardless of whether the person is a sitting MP/MLA or not, regardless of whether an appeal is filed.
Effect of Lily Thomas:
(i) Conviction immediately disqualifies a sitting MP/MLA. The seat falls vacant.
(ii) Filing an appeal does NOT prevent disqualification.
(iii) However, if the appellate court STAYS the conviction, the disqualification is stayed. (Stay of sentence alone is not enough; the conviction itself must be stayed.)
(iv) If the appeal succeeds and the conviction is set aside, the disqualification ceases. But the seat lost in the meantime is not restored.
Notable post-Lily Thomas cases:
Lalu Prasad Yadav (2013) — convicted in fodder scam; disqualified from Lok Sabha; barred from contesting for six years after release.
Rashid Masood (2013) — Rajya Sabha MP convicted in MBBS seat scam; disqualified.
Rahul Gandhi (2023) — Lok Sabha member convicted in defamation case in March 2023; immediately disqualified. Subsequently, the Surat Sessions Court stayed the conviction in August 2023, restoring his eligibility (his disqualification was reversed once the conviction was stayed). The case illustrated the operation of the post-Lily Thomas framework — immediate disqualification, but reversible if conviction is stayed.
Criminalisation of politics — broader context
RPA disqualification provisions exist in a wider context of concerns about criminalisation of politics in India. The Supreme Court has emphasised that significant numbers of MPs and MLAs face criminal cases, and that the disqualification framework is inadequate.
Statistics. Successive elections have shown high numbers of legislators with criminal cases pending:
(i) 2009 Lok Sabha — 30% of MPs faced criminal cases; 14% faced serious cases.
(ii) 2014 Lok Sabha — 34% of MPs faced criminal cases; 21% faced serious cases.
(iii) 2019 Lok Sabha — 43% of MPs faced criminal cases; 29% faced serious cases.
(iv) 2024 Lok Sabha — over 45% of MPs faced criminal cases; over 30% faced serious cases.
The trend is upward. Despite RPA disqualifications and Supreme Court interventions, the proportion of legislators with criminal backgrounds has been growing.
Reform proposals.
(i) Disqualification on framing of charges. The Law Commission (170th Report 1999, 244th Report 2014, 255th Report 2015) has recommended disqualification at the stage of charge-framing for serious offences (offences carrying imprisonment of more than five years). The argument: relying on conviction is inadequate because trials take years; framing of charges by a competent court provides a substantial threshold.
(ii) Mandatory disclosure. The Supreme Court in Public Interest Foundation v. Union of India (2018) directed political parties to publish on their websites and in newspapers details of criminal cases pending against their candidates. This was meant to enable informed voting.
(iii) Special courts for legislators. The Supreme Court directed in Ashwini Kumar Upadhyay v. Union of India (2017 and subsequent orders) that special courts be set up to expedite trials of MPs and MLAs. Implementation has been gradual.
Election Commission position. The EC has supported stronger disqualification mechanisms — including disqualification on charge-framing for serious offences. The EC has been making this recommendation for over two decades.
Parliamentary response. Parliament has been reluctant to enact stricter disqualification provisions. The 2003 amendment to RPA Section 33A required candidates to disclose criminal cases — a step toward transparency but not disqualification.
The current architecture — disqualification on conviction with two-year-plus imprisonment, plus disclosure requirements — is the legislative settlement. Constitutional reform (whether to amend Article 102/191 or RPA Section 8) requires political consensus that has not emerged.
What students must hold
Six points carry the weight. One, two-track architecture: Constitutional disqualifications (Articles 102, 191) and Statutory disqualifications (Representation of the People Act 1951, primarily Sections 8-10).
Two, Article 102 — disqualifications for Parliament: (a) office of profit; (b) unsoundness of mind; (c) undischarged insolvent; (d) not citizen / foreign citizenship / allegiance to foreign State; (e) any other disqualification by Parliamentary law. Article 191 mirrors this for State Legislatures.
Three, Office of profit — most contested ground. NOT defined in Constitution. Supreme Court tests: pecuniary gain, government control, functional test. Parliament (Prevention of Disqualification) Act 1959 exempts specific offices; amended five times. The 2019 Prelims tested: statements 1 and 2 correct (exemption Act, amended five times); statement 3 wrong ("office of profit" is NOT defined in Constitution).
Four, RPA Section 8 — conviction-based disqualification: (1) Specified offences (IPC sections, RPA, Prevention of Corruption Act, etc.) with imprisonment ≥ 2 years → 6-year disqualification. (2) Hoarding/profiteering/adulteration with imprisonment ≥ 6 months → 6-year disqualification. (3) Any other offence with imprisonment ≥ 2 years → period of imprisonment + 6 years.
Five, Lily Thomas v. Union of India (2013) — STRUCK DOWN Section 8(4). Conviction now triggers IMMEDIATE disqualification of sitting MPs/MLAs. Filing appeal does NOT defer disqualification. Stay of conviction (not just sentence) restores eligibility. Examples: Lalu Prasad (2013), Rahul Gandhi (2023, conviction stayed in August 2023).
Six, decision-making: Article 103 — President decides for MPs, on EC opinion. Article 192 — Governor decides for MLAs, on EC opinion. Decision is final. For more, see anti-defection law and NOTA.