Who decides the disqualification of members of State Legislative Assembly, for matters other than those in the tenth schedule of the Constitution ?

Question

UnlockIAS · Accepted Answer

Correct — B, Governor. Article 192(1) provides that if any question arises whether a member of a House of the Legislature of a State has become subject to any of the disqualifications listed in Article 191(1), the question shall be referred for the decision of the Governor, and his decision shall be final. Article 192(2) then constrains that finality: before giving any decision the Governor shall obtain the opinion of the Election Commission and shall act according to that opinion. So the Governor is the deciding authority in form, while the Election Commission of India supplies the substance — a two-step design that keeps the ruling out of the hands of the party in power in the State. The disqualifications this covers are those in Article 191(1): holding an office of profit under the Union or a State Government other than an office the State Legislature has declared not to disqualify; being of unsound mind as declared by a competent court; being an undischarged insolvent; not being a citizen of India, or having voluntarily acquired the citizenship of a foreign State or acknowledged allegiance to one; and being disqualified by or under any law made by Parliament, which is how the Representation of the People Act, 1951 enters. The stem's carve-out is what makes the question answerable in one step: defection under the Tenth Schedule is deliberately taken out, because paragraph 6 of that Schedule gives that single category of disqualification to the Chairman or Speaker of the House instead. Everything else stays with the Governor. The Union mirror is worth memorising alongside — Articles 102 and 103 set out the identical scheme for Parliament, with the President deciding on the Election Commission's opinion.

Why the other options are wrong — (a) The Speaker's authority over disqualification exists, but it covers exactly the one category the stem excludes. Paragraph 6 of the Tenth Schedule makes the Chairman or Speaker the deciding authority on defection, and Kihoto Hollohan v. Zachillhu (1992) held that in doing so the Speaker acts as a tribunal whose order is open to judicial review. Because defection cases dominate the news, most candidates generalise the Speaker's role to all disqualifications — which is precisely the reflex this stem is built to catch.  (c) A High Court comes in on review or on an election dispute, not as the first decider. Under Article 329(b) an election to a State Legislature can be questioned only by an election petition, which the Representation of the People Act, 1951 routes to the High Court — but that is about the validity of an election already held. A disqualification arising after election is decided by the Governor under Article 192, and the court's role is to test that decision, not to make it.  (d) Two different commissions are being confused. The State Election Commission is created by Articles 243K and 243ZA and conducts panchayat and municipal elections only. Assembly and parliamentary elections, and the opinion the Governor must obtain and follow under Article 192(2), belong to the Election Commission of India under Article 324. An option naming the wrong commission is a favourite in this area because both names are real.

Concept: Disqualification of a legislator in India runs on two separate tracks, and the Constitution keeps them apart on purpose. The first track is the classical list in Article 191(1) — office of profit, unsound mind, insolvency, foreign citizenship, and anything Parliament adds by law such as the conviction-based bars in Section 8 of the Representation of the People Act, 1951. These are questions of status and fact, and Article 192 sends them to the Governor acting on the binding opinion of the Election Commission of India. The second track is defection, added in 1985 by the Constitution (Fifty-second Amendment) Act, which inserted Article 191(2) and the Tenth Schedule. Because defection is a question about conduct inside the House — voting against the whip, giving up party membership — the Schedule gives it to the presiding officer under paragraph 6. Parliament works the same way, with Articles 102 and 103 in place of 191 and 192 and the President in place of the Governor.

State PCS 2024 Q38 — Polity & Governance PYQ with Answer

State PCS 2024 Q38 — Polity & Governance PYQ with Answer