Under Article 103 of the Constitution of India, the President shall obtain the opinion of which of the following authority before giving any decision on any question regarding the disqualification of the members of the Lok Sabha?

Correct — option (2), Election Commission.

Article 103(1) deals with a sitting member of either House of Parliament who may have become subject to a disqualification in Article 102(1). It says "the question shall be referred for the decision of the President and his decision shall be final."

Article 103(2) then binds the President: "Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion."

So the authority whose opinion is required is the Election Commission. The decision is issued by the President, but the words "shall act according to such opinion" make the Commission's opinion binding.

The present Article 103 was substituted by the Constitution (Forty-fourth Amendment) Act, 1978, with effect from 20 June 1979, and was the text in force in October 2021.

The idea to remember: Article 102(1) disqualification goes to the President on the Election Commission's binding opinion; defection under the Tenth Schedule goes to the Speaker or Chairman.

Why the others are wrong

• (1)
  Speaker of the Lok Sabha — The Speaker decides a different disqualification: defection under the Tenth Schedule. Paragraph 6(1) of that Schedule refers such a question "for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final".

  Article 102(2) makes Tenth Schedule disqualification a separate ground, while Article 103 covers the grounds in Article 102(1).

• (3)
  Supreme Court — The Supreme Court gives opinions to the President under a different Article. Under Article 143(1), the President may refer a question of law or fact of public importance to the Court, which may report its opinion.

  The Court also decides disputes about the election of the President or Vice-President under Article 71(1). Article 103(2) names the Election Commission instead.

• (4)
  Attorney General — The Attorney General advises the Government of India. Article 76(2) makes it his duty "to give advice to the Government of India upon such legal matters", and to perform other legal duties, as the President refers or assigns.

  Article 103(2) names the Election Commission as the authority whose opinion the President must obtain and follow.

Article 102(1) sets out when a person is disqualified for being chosen as, or for being, a member of either House of Parliament.

There are five grounds: holding an office of profit under the Government of India or a State, other than one Parliament's law exempts; unsound mind declared by a competent court; being an undischarged insolvent; not being a citizen, or acquiring foreign citizenship or allegiance; and disqualification under a law made by Parliament.

Its Explanation adds that a Minister for the Union or a State does not hold an office of profit by reason only of being a Minister. Article 102(2) adds disqualification under the Tenth Schedule, which has its own decision-maker.

Key facts

• Article 103(1): whether a Member of Parliament has incurred an Article 102(1) disqualification is decided by the President, whose decision is final.
• Article 103(2): before deciding, the President shall obtain the opinion of the Election Commission and act according to it.
• Article 192(2): the Governor must obtain and act on the Election Commission's opinion for disqualification of a State Legislature member.
• Tenth Schedule, paragraph 6(1): disqualification on the ground of defection is decided by the Chairman or the Speaker of the House.
• The present Article 103 was substituted by the Forty-fourth Amendment Act, 1978, with effect from 20 June 1979.

Common traps

• Sending every disqualification to the Speaker: the Speaker or Chairman decides disqualification for defection under the Tenth Schedule, while Article 102(1) grounds go to the President.
• Reading 'opinion' as advice the President may ignore: Article 103(2) says the President shall act according to the Election Commission's opinion.
• Confusing the Election Commission of Article 324 with the State Election Commission of Article 243K, which conducts panchayat and municipal elections.

• practice — not a real PYQ

  Under Article 192 of the Constitution of India, before deciding whether a member of the Rajasthan Legislative Assembly has become disqualified under Article 191(1), the Governor shall obtain the opinion of

  • (a)the Speaker of the Legislative Assembly
  • (b)the State Election Commission
  • (c)the Election Commission
  • (d)the Chief Justice of the High Court
  Answer(3) — Article 192(2) requires the Governor to obtain the opinion of the Election Commission and act according to it. Option (1), the Speaker, decides defection cases under the Tenth Schedule. Option (2) is the Article 243K body for local elections. Option (4) has no role under Article 192.
• practice — not a real PYQ

  A question whether a member of the Lok Sabha has become disqualified on the ground of defection under the Tenth Schedule is decided by

  • (a)the President, on the opinion of the Election Commission
  • (b)the Speaker of the Lok Sabha
  • (c)the Supreme Court
  • (d)the Attorney General
  Answer(2) — Paragraph 6(1) of the Tenth Schedule refers the question to the Speaker, whose decision is final. Option (1) is the route under Article 103 for Article 102(1) grounds. Options (3) and (4) are not the deciding authority under paragraph 6.