The Constitution of India
Article 191
Disqualifications for membership
(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State —
(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State 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.
Explanation. — For the purposes of this clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State.
(2) 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.
Why this exists
The framers wanted to keep State legislatures independent from the executive and free from members whose loyalty, mental capacity, financial integrity, or citizenship could compromise their ability to represent the public honestly. It mirrors Article 102, which lays down similar disqualifications for Parliament, ensuring consistency between the Union and State legislative systems. Clause (2), added later via the 52nd Amendment (1985), extended these disqualifications to cover defection from political parties, aiming to curb political horse-trading and instability in State governments.
How courts read it
Courts have interpreted 'office of profit' pragmatically, looking at whether an office carries government control and pecuniary benefit rather than just its label, as seen in cases interpreting the parallel provision in Article 102. On citizenship and allegiance, courts have examined whether actions (like voting in a foreign election or holding a foreign passport) amount to 'voluntary acquisition' of foreign citizenship. The Tenth Schedule disqualification (clause 2) has been extensively litigated, notably in Kihoto Hollohan v. Zachillhu (1992), where the Supreme Court upheld the Speaker's power to decide defection disqualifications but held that such decisions are subject to judicial review.
Common misconceptions
- Myth: Being a Minister automatically disqualifies you under the 'office of profit' rule.
Fact: The Explanation clause specifically excludes Ministers (Union or State) from being disqualified just for being Ministers. - Myth: Only Parliament's law can disqualify a State legislator.
Fact: Disqualification can arise from the Constitution itself (clauses a–d), from a Parliamentary law (clause e), or from defection rules in the Tenth Schedule (clause 2). - Myth: Any person holding a government-related post is automatically disqualified.
Fact: The State legislature can pass a law declaring specific offices as not disqualifying, so context and legislative choice matter.