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Qualification For Membership To Our Temples Of Democracy

Indian Constitution has prescribed Articles 84 and 173 spelling out qualification for membership of Parliament and State Legislature respectively as under:

Article 84: Qualification for membership of Parliament.

A person shall not be qualified to be chosen to fill a seat in Parliament unless he—

  1. is a citizen of India, and makes and subscribes before some person authorized in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule;
  2. is, in the case of a seat in the Council of States, not less than thirty years of age and, in the case of a seat in the House of the People, not less than twenty-five years of age; and
  3. possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.

Article 173: Qualification for Memb ership of the State Legislature

A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he—

  1. is a citizen of India, and makes and subscribes before some person authorized in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule;
  2. is, in the case of a seat in the Legislative Assembly, not less than twenty-five years of age and, in the case of a seat in the Legislative Council, not less than thirty years of age; and
  3. possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.

Though both these Articles are almost mirror image in its version it has omitted to expand the scope to make it explicit in terms of eligibility and compliance. There is an imperative need to review the same to the present context of our democracy where it has facilitated for violation or dereliction of duties or principles loaded under the Basic Structure of our Constitution. However it had categorically engraved the following criteria underlying the following procedures for compliance as to qualification:

  1. Oath or Affirmation by the member under Third Schedule of Constitution.
  2. Minimum Age Criteria for filing of nomination to contest elections.
  3. Any other qualification as prescribed under any law enacted by Parliament.

A. FORMS OF OATH OR AFFIRMATION UNDER THIRD SCHEDULE

[Articles 75(4), 99, 124(6), 148(2), 164(3), 188 & 219]

The Schedule has prescribed ten different standard texts or versions for the elected members to read out at the time of swearing in as under:

1. Minister for the Union:

"I, A. B., do swear in the name of God that I will bear true faith solemnly affirm and allegiance to the Constitution of India as by law established, [that I will uphold the sovereignty and integrity of India,] that I will faithfully and conscientiously discharge my duties as a Minister for the Union and that I will do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will."

2. Oath of secrecy for a Minister for the Union:

"I, A.B., do swear in the name of God that I will not directly or solemnly affirm indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the Union except as may be required for the due discharge of my duties as such Minister."

3. Candidate for election to Parliament:

"I, A.B., having been nominated as a candidate to fill a seat in the Council of States (or the House of the People) do swear in the name of God solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India."

4. Member of Parliament:

"I, A.B., having been elected (or nominated) a member of the Council of States (or the House of the People) do swear in the name of God solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter.

5. Judges of the Supreme Court and the Comptroller and Auditor-General of India:

"I, A.B., having been appointed Chief Justice (or a Judge) of the Supreme Court of India (or Comptroller and Auditor-General of India) do swear in the name of God that I will bear true solemnly affirm faith and allegiance to the Constitution of India as by law established, [that I will uphold the sovereignty and integrity of India,] that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws."

6. Minister for a State:

"I, A.B., do swear in the name of God that I will bear true faith and allegiance to the Constitution solemnly affirm of India as by law established, [that I will uphold the sovereignty and integrity of India,] that I will faithfully and conscientiously discharge my duties as a Minister for the State of and that I will do right to all manner of people in accordance with the Constitution and the law without fear or favour, affection or ill-will."

7. Oath of secrecy for a Minister for a State:

"I, A.B., do swear in the name of God that I will not directly or indirectly communicate or reveal solemnly affirm to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the State of except as may be required for the due discharge of my duties as such Minister."

8. Candidate for election to the State Legislature:

"I, A.B., having been nominated as a candidate to fill a seat in the Legislative Assembly (or Legislative Council), do swear in the name of God that I will bear true faith and allegiance solemnly affirm to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India."

9. Member of the Legislature of a State:

"I, A.B., having been elected (or nominated) a member of the Legislative Assembly (or Legislative Council), do swear in the name of God that I will bear true faith and allegiance to the Constitution solemnly affirm of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter."

10. Judges of a High Court:

"I, A.B., having been appointed Chief Justice (or a Judge) of the High Court at (or of) ……….…..do swear in the name of God that I will bear true faith and allegiance to the Constitution of India as solemnly affirm by law established, [that I will uphold the sovereignty and integrity of India,] that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws."

The Components embossed under the text of oath are often subject to scrutiny and challenges in the performance of an elected representative or any person holding constitutional authority and power in the discharge of duties mandated under the constitutional concepts. They are briefed as under:

  1. Oath is administered in the "Name of God" which preserves the Secularism flavour but often it gets diluted or transgressed into form of taking the name of mentors or political leadership of any party. At the same time the concept of God for membership who are Atheists or Agnostic by principle even holding public office finds a clear ambiguity.
  1. "True Faith" related to Corruption in public office has often been dented to the core when stringent laws in our system even convict people holding public office on grounds of misuse of office for selfish interests only to amass wealth. These representatives continue to hold office despite taking oath till they get convicted and debarred.
  1. Allegiance to the Indian Constitution and all Laws of the land are still debatable at large when we often find interference of Executive or the Judiciary to test or check the validity when elected members rampantly violate them to suit their whims and fancies on many occasions.
  1. "Faithfully and conscientiously discharge of duties". This is debatable considering the fact as to whether it derives overall benefits to the electors across all barriers of caste and political ideologies.
  2. "Doing Right" to all manner of people without Fear, favoritism, affection or Ill-Will often stays in ambiguous and undefined terms as there is no prescribed yardstick adopted or followed across all sections of the society.
  3. "Directly or Indirectly communicate or reveal to any person" any matter refers to nothing except the fact that a supreme enactment often takes adequate care to govern the secrecy and confidentiality any matters which are against public interest at large.
  4. "Bearing True Faith " in order to uphold the Sovereignty and Integrity of India in the discharge of duties and perform them to the best of ability and knowledge and judgement is left to individual wisdom.

B. AGE CRITERIA

Though Constitution has prescribed minimum age criteria for filing of nomination to contest for elections to become lawmakers or judges the proviso has failed to fix any maximum age for peoples’ representatives unlike that of appointment as Judges or constitutional authorities in public office. This ambiguity often leads to deterrence in the growth of youth participation in politics and governance as people occupy chairs or hold public office even during terminal ailments or confined in sickbeds. This often affects discharge of duties and functions committed during oath of office and inability to discharge duties to the best of ability. It is therefore imperative to legislate suitable amendments to ensure that upper age limit is also prescribed with exceptions only to first time members.

C. ANY OTHER QUALIFICATION PRESCRIBED UNDER THE LAW

Since the lawmakers themselves are entrusted in this exercise of bring reforms it is therefore necessary that the following qualifications shall be stipulated for members:

  1. Basic proficiency about Indian Constitution, Representatives of Peoples’ Act and Prevention of Corruption Act.
  2. He should not have unpaid loans (or NPA) outstanding in the banking system on his or any of his associates’ name including close relatives or close friends.
  3. An affidavit or undertaking to get all civil and criminal cases pending against him within six months of administering oath of office.
  4. He should have been permanent resident of the constituency for a minimum period of at least five years preceding to notification of election.
  5. He should have been permanently exonerated or relieved from all pending cases at the time of election or nomination before becoming member during the previous term of office.

No Laws on the land including our Indian Constitution has stipulated Minimum Educational Qualification and upper age limit for People's Representatives. However the performance and the quality of contributions of people's representatives at various levels especially as MLAs and MPs needs to be reviewed and legislated suitably on moral and ethical grounds which may encourage every youth to participate in politics to play significant role in the development of our country.

 

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Published in Constitutional Law
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