The Speaker’s declaration that the disqualification of three MLAs will apply till the end of the tenure of the present Assembly does not appear to be correct in law, argued former Advocate-General B.V. Acharya
When contacted, Mr. Acharya termed the declaration by the Speaker that the disqualification will be in force till May 23, 2023 as “wrong” as the Article 191(2), under which the MLAs are disqualified, does not bar them from becoming member again by contesting byelections afresh unlike under the Article 192(1), which specifically bars the disqualified member “from being chosen” to be a member of that House. Referring to Article 164 (1B) of the Constitution, Mr. Acharya pointed out that a member, disqualified under for defection under Article 191(2), can be made a Minister of the same Assembly if he gets elected again.
“A member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier” as per the Article 164(1B), pointed out Mr. Acharya.