EC says lack of qualification not tantamount to disqualification

The Election Commission has given yet another significant opinion — it has rejected a petition seeking disqualification of 11 nominated members of the Maharashtra Legislative Council under Article 191 (1) (e) of the Constitution.

“In our Constitution, ‘qualifications’ and ‘disqualifications’ are two different concepts and ‘lack of qualification’ will not tantamount to ‘disqualification,” it said.

The Commission — Chief Election Commissioner V.S. Sampath and Election Commissioners H.S. Brahma and S.N.A. Zaidi — was giving its opinion on a petition forwarded by Maharashtra Governor K. Sankaranarayanan from Harishchandra Pawar, Washim, who sought disqualification of the 11 MLCs.

He alleged that the MLCs were nominated by the Governor on the recommendations of different Chief Ministers and were shown to be from the field of social service, whereas the constitutional provisions envisage that members must be nominated as MLCs and shall be persons having special knowledge or practical experience in literature, science, art, co-operative movement and social service.

“No transparency”

The petitioner alleged that the Chief Ministers did not consult the Council of Ministers while making the recommendations to the Governor for nomination and some of the recommendations were based on directions by other political leaders. The proposals were politically motivated and the MLCs were not recognised social workers and there was no transparency in the nomination. The petitioner sought their disqualification.

Giving its opinion, the EC reproduced the provisions of Article 191 (1) (e) and observed that from the construction of Article 191 (1) (e), it was clear that it dealt with cases of disqualification and not a case of lack of qualification, which was the allegation.

Referring to various judgments of the Supreme Court, the EC said: “... even if it were to be assumed that the various allegations made in the petition could be construed as disqualification, the matter would still not fall within the jurisdiction of the Governor and the EC under Article 192…it is settled position that under Article 192(1), the jurisdiction of the Governor to decide question of disqualification of an MLA or MLC arises only in disqualification incurred after being chosen as a member of the House.”

The EC pointed out that the jurisdiction of the Commission to inquire into such question of alleged disqualification, on being referred to it by the Governor, arose only in case of post-election disqualification.

The question of lack of qualification/eligibility could not be raised before the Governor and the EC also had no jurisdiction to express any opinion on such matter, it said and rejected the petition as “not maintainable.”