Decision on Question of Disqualification of a State Legislature Member

Decision on question of disqualification of a State Legislature member is governed by Article 192 of the Constitution, which identifies who has the authority to rule on whether a sitting member of a State Legislative Assembly or Legislative Council has become disqualified, and how that authority must exercise its power.

Constitutional Basis: Article 192

Article 192 provides that if any question arises as to whether a member of a House of a State Legislature has become subject to any of the disqualifications mentioned in Article 191(1) — office of profit, unsound mind, undischarged insolvency, foreign citizenship or allegiance, or disqualification under a law made by Parliament — the question is referred for the decision of the Governor of the State, and the Governor's decision on the matter is final. Before giving that decision, the Governor is required to obtain the opinion of the Election Commission and must act according to that opinion.

The Election Commission's Role

Although the formal decision is issued in the Governor's name, the process is not left to the Governor's independent judgment. The Governor must first seek the opinion of the Election Commission and is bound to act in accordance with it. In substance, this makes the Election Commission's view determinative on the underlying question of disqualification, while the Governor supplies the constitutional office through which the final order is formally made.

Defection Cases Are Decided Differently

Article 192 applies specifically to the ordinary disqualifications listed in Article 191(1). It does not cover disqualification on the ground of defection under the Tenth Schedule, which is triggered by Article 191(2). Questions of defection-based disqualification are instead decided by the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, acting as the authority designated under the Tenth Schedule itself, rather than by the Governor. The Supreme Court, in Kihoto Hollohan v. Zachillhu (1992), upheld the constitutional validity of the Tenth Schedule and confirmed that the Speaker or Chairman functions as a tribunal while deciding such defection questions, with the resulting order subject to judicial review on limited grounds after the Speaker or Chairman has given a final decision.

Why the Distinction Matters

Keeping ordinary disqualification questions with the Governor (guided by the Election Commission) while leaving defection questions with the House's own presiding officer reflects two different constitutional concerns. Article 191(1) grounds are largely factual and administrative — citizenship status, insolvency, or an office of profit — well suited to an independent, expert body like the Election Commission. Defection under the Tenth Schedule, by contrast, concerns the internal political conduct of a House's own members, and the Constitution entrusts that judgment to the presiding officer of the House itself, subject to the check of judicial review.

Comparable Provision at the Union Level

UPSC Relevance

Prelims

• Article 192 and the two-step process: reference to the Governor, opinion of the Election Commission, and the Governor's final decision.
• The distinction between Article 192 (ordinary disqualification under Article 191(1)) and the Tenth Schedule mechanism (defection under Article 191(2)), decided by the Speaker or Chairman.
• The Union-level parallel under Article 103, where the President decides on the Election Commission's opinion.

Mains

• The constitutional design of separating "ordinary" disqualification questions (decided by the Governor on the Election Commission's binding opinion) from defection questions (decided by the House's own presiding officer), and the safeguards this creates.
• The significance of Kihoto Hollohan v. Zachillhu in subjecting the Speaker's or Chairman's decisions on defection to judicial review.

FAQ

Q1. Who decides whether a State Legislature member has incurred a disqualification under Article 191(1)? The Governor decides, but only after obtaining the opinion of the Election Commission, and the Governor must act according to that opinion. The Governor's decision is final.

Q2. Does the Governor decide defection cases as well? No. Defection-based disqualification under the Tenth Schedule (linked to Article 191(2)) is decided by the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, not the Governor.

Q3. Can the Governor's decision under Article 192 be independent of the Election Commission's opinion? No. The Governor is constitutionally required to act according to the Election Commission's opinion before deciding the question.

Q4. Is the Speaker's decision on a defection question subject to judicial review? Yes. The Supreme Court in Kihoto Hollohan v. Zachillhu (1992) held that the Speaker or Chairman acts as a tribunal in such cases, and the decision is subject to judicial review on limited grounds.

Q5. What is the equivalent provision for members of Parliament? Article 103 performs the same function for Parliament, with the President deciding on the Election Commission's opinion.

Quick Revision

• Article 192: Governor decides disqualification questions under Article 191(1), based on the Election Commission's opinion.
• Governor's decision is final, but is bound by the Election Commission's opinion.
• Defection questions (Tenth Schedule, Article 191(2)) are decided by the Speaker/Chairman, not the Governor.
• Kihoto Hollohan v. Zachillhu (1992): Speaker/Chairman acts as a tribunal for defection cases; decision subject to judicial review.
• Article 192 for states mirrors Article 103 for Parliament.

Sources

• The Constitution of India — Ministry of Law and Justice
• India Code — Constitution of India
• Supreme Court of India — Judgments

Further Reference

For deeper reading on this topic and the wider polity syllabus, these standard works are recommended:

• M. Laxmikanth, Indian Polity (McGraw Hill) — the standard UPSC handbook.
• D.D. Basu, Introduction to the Constitution of India (LexisNexis) — authoritative constitutional-law treatment.
• The Constitution of India — Bare Act — the official text.

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