Political Philosophy
According to Such Opinion: The Decision Article 103 Gives the President and the Determination It Takes Away
23 October 2026 · 21 min read
A constitution that disqualifies people from sitting in a legislature has to say who determines whether a person is disqualified. The question cannot be left unassigned, because a disqualification that nobody is competent to declare has no operation at all, and the seat stays occupied by somebody the Constitution says may not occupy it.
There are only three plausible places to put the question, and each of them has an objection written on its face. The House itself knows the member and controls its own composition, but the House is a majority, and the member whose seat is in question is either part of that majority or opposed to it. A court is disinterested but slow, and a seat held through the life of a legislature is a seat held for good. The executive is quick and is answerable, but in a parliamentary system the executive is the creature of the same majority, so assigning the question to the executive assigns it, at one remove, back to the House.
Articles 103 and 192 of the Constitution of India are the provisions that make this choice for a member who becomes disqualified after election. They are usually summarised in a line — the President decides for Parliament, the Governor for a State Legislature — and on that summary they are an instance of the third option, with the third option's defect intact.
The summary is accurate about the first clause of each article and silent about the second, and the second clause is where the design is. Read together, the two clauses separate the act of deciding from the act of determining, keep the first with the head of the executive, and move the second somewhere the executive cannot reach.
The decision and the determination
Article 103(1) reads: "If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of article 102, the question shall be referred for the decision of the President and his decision shall be final." Article 103(2) reads: "Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion."
Article 192 is the same provision for a State, with the Governor in place of the President and clause (1) of Article 191 in place of clause (1) of Article 102. Both articles were substituted by the Constitution (Forty-second Amendment) Act, 1976 and substituted again by the Constitution (Forty-fourth Amendment) Act, 1978; the text now in force dates from 20 June 1979.
Taken by itself, clause (1) is an ordinary allocation of a question to an authority, with a finality clause attached. Clause (2) then takes the question back. It does not ask the President to consider the Election Commission's view, or to record reasons for departing from it, or to return it for reconsideration. It directs him to obtain the opinion and to act according to it. Nothing is left for the decision to do except to be the decision.
That is a deliberate construction and not a drafting accident, because the Constitution has a vocabulary for the weaker relations and does not use it here. Article 324(4) lets the President appoint Regional Commissioners "after consultation with the Election Commission". Article 317(1) requires a report before an order may be made. The proviso to Article 74(1) permits the President to require his Council of Ministers "to reconsider such advice". None of those forms appears in Article 103(2). The verbs are "shall obtain" and "shall act according to".
What the article therefore produces is an office-holder who announces a conclusion he did not reach, and a body that reaches a conclusion it does not announce. The finality in clause (1) is real, but it attaches to the announcement. The content of what is announced is settled elsewhere.
What clause (2) displaces
The significance of that arrangement depends on Article 74(1), which provides that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President, "who shall, in the exercise of his functions, act in accordance with such advice". That phrase appears once in the Constitution. Article 163(1), which creates the Governor's Council of Ministers, is worded differently: the Council is there "to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion", and no clause of the article tells the Governor that he shall act in accordance with the advice.
If Article 103 had stopped at clause (1), the question whether a sitting member of Parliament had incurred a disqualification would have been a function of the President exercised on ministerial advice. The member's seat would then be determined by the Council of Ministers, which holds office because it commands a majority in the House in which the seat is. A provision meant to keep out people the Constitution has disqualified would have been placed in the hands of the people whose numbers depend on how the question is answered.
Clause (2) prevents that, and the Supreme Court has said so in terms. In Brundaban Nayak v. Election Commission of India, AIR 1965 SC 1892, a Constitution Bench construing Article 192 held that when the Governor pronounces his decision under clause (1) he is not required to consult his Council of Ministers; he has merely to forward the question to the Election Commission for its opinion, and on receiving it he shall act according to that opinion. The Court said that it is the opinion of the Election Commission which is "in substance decisive", and that the enquiry for the purpose of the decision has to be held by the Commission and not by the Governor. It also held that a citizen is entitled to make a complaint to the Governor about a disqualification incurred by a member, so the machinery can be set in motion from outside the House altogether.
Two things follow that are worth stating separately. The first is that the enquiry — notice, material, hearing, finding — happens before a body that is not the executive and not the House. The second is that the standing to raise the question is not confined to members. A question about who may sit in a House is thus removed from the control of the majority that sits in it, both as to who may ask and as to who may answer.
Three ways the Constitution treats an opinion
Once clause (2) is read as a binding direction rather than a consultative one, it is worth asking where else the Constitution makes one authority's view conclusive upon another, because the comparison places Article 103 oddly.
Article 143(1) permits the President, where it appears to him that a question of law or fact has arisen or is likely to arise "which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it", to refer the question to the Court, and the Court "may, after such hearing as it thinks fit, report to the President its opinion thereon". Clause (2) makes the report compulsory for one narrow class of dispute: there the Court "shall" report. In neither clause is the President told what to do with what he receives. The opinion is a report, and the article does not say he shall act according to it.
Article 317(1) uses a third form. The Chairman or a member of a Public Service Commission "shall only be removed from his office by order of the President on the ground of misbehaviour after the Supreme Court, on reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf under article 145, reported that the Chairman or such other member, as the case may be, ought on any such ground to be removed." Here the Court's report is a condition precedent. It does not oblige the President to remove; it makes removal on that ground impossible without it. The report can only stop a removal, never compel one.
So the Constitution has an advisory opinion that does not bind, a judicial report that gates one particular order, and — in Articles 103(2) and 192(2) — an opinion that binds the recipient to a specific outcome. The direction that produces the third form is textually unique: the words "shall act according to such opinion" appear in those two clauses and nowhere else in the Constitution. The body whose opinion binds under them is not a court. It is a commission constituted under Article 324, whose members are appointed by the President under clause (2) of that article, subject to the provisions of any law made in that behalf by Parliament.
The Constitution's own highest court advises and may be disregarded. An administrative commission, in this one class of question, determines.
What makes that defensible, and what secures it
The justification for the arrangement cannot be that the Election Commission is a tribunal, because it is not constituted as one. It has to be that the question belongs to the Commission's subject matter and that the Commission's independence is secured by other means.
The first half is straightforward. Article 324(1) vests in the Election Commission the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President. Whether a person is qualified to be chosen and to be a member is the same subject seen later in time. Article 102(1) itself fuses the two: a person is disqualified "for being chosen as, and for being" a member. One body deciding both at the threshold and afterwards is coherent.
The second half is where the design is thinner than it looks, and the thinness is in the provisions on removal. The proviso to Article 324(5) provides that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court, and that his conditions of service shall not be varied to his disadvantage after his appointment. The further proviso provides that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
Those are two different kinds of security. The first borrows the tenure of judicial office outright. The second runs through a colleague: the protection of an Election Commissioner other than the Chief Election Commissioner consists in the Chief Election Commissioner having to recommend his removal. Appointment is dealt with separately again, and by clause (2) is left to be made by the President subject to the provisions of any law made in that behalf by Parliament.
So Articles 103(2) and 192(2) transfer a determination to a body without giving that body the tenure the Constitution gives the courts whose opinions it declines to make binding, and without giving all of its members the tenure it gives the member who heads it. The transfer is real. The insulation behind it is partial, and rests on a proviso rather than on the composition of the deciding body.
The referral Article 103 does not cover
Article 103(1) is confined, in terms, to "any of the disqualifications mentioned in clause (1) of article 102". Article 192(1) is confined to clause (1) of Article 191. Clause (2) of each of those articles — disqualification under the Tenth Schedule — is outside the referral.
That is not an oversight left by the original drafting. It is what the Constitution (Fifty-second Amendment) Act, 1985 did and did not do. Section 3 of that Act inserted clause (2) into Article 102; section 5 inserted clause (2) into Article 191; section 6 added the Tenth Schedule. Sections 2 and 4 amended the vacancy provisions: in Article 101(3)(a) the words "clause (1) of article 102" were substituted by "clause (1) or clause (2) of article 102", and in Article 190(3)(a) the corresponding substitution was made for Article 191. All of that took effect on 1 March 1985.
Articles 103 and 192 were left as they stood. The amendment widened the provisions that vacate a seat so that they catch a defection disqualification, and did not widen the provisions that decide whether one has been incurred. The consequence is that the vacancy follows from a determination that Articles 103 and 192 do not provide for, and the Amendment had to supply a different decider for it.
What the Tenth Schedule did with the same question
Paragraph 6(1) of the Tenth Schedule provides that if any question arises as to whether a member of a House has become subject to disqualification under the Schedule, "the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final". The proviso deals with the case where the question is about the Chairman or the Speaker: it is then referred for the decision of such member of the House as the House may elect in this behalf, whose decision shall be final.
There is no second clause. Nothing is obtained from anybody. Paragraph 6(2) then provides that all proceedings under sub-paragraph (1) "shall be deemed to be proceedings in Parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of article 212". Paragraph 8 empowers the Chairman or the Speaker to make rules, including rules for the procedure for deciding a question under paragraph 6, which are to be laid before the House and may be disapproved by it.
Paragraph 7 purported to add a bar of jurisdiction: notwithstanding anything in the Constitution, no court was to have any jurisdiction in respect of any matter connected with the disqualification of a member under the Schedule. It is not in force. The India Code compilation of the Constitution carries the fact in a footnote to the paragraph itself: it was declared invalid for want of ratification in accordance with the proviso to clause (2) of Article 368, as per the majority opinion in Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412.
Set the two regimes side by side on the points that matter, and almost nothing is shared. Under Article 103, the determination is made by a body outside the House; under paragraph 6, by an officer of the House. Under Article 103 the person who announces the result is bound by someone else's finding; under paragraph 6 the person who announces it made it. Under Article 192, as Brundaban Nayak holds, a citizen may set the machinery going; under paragraph 6 the proceedings are deemed to be proceedings of the House. The questions are of the same kind — may this person continue to sit — and the apparatus for answering them has been built twice, on opposite principles.
The direction of the difference is the part that does not follow from anything. The older provision deals with disqualifications that largely turn on facts verifiable from outside the House — an office of profit, insolvency, foreign citizenship, a declaration of unsoundness of mind by a competent court, and, under clause (e), whatever Parliament has made a disqualification by law — and it removes the determination from the House. The newer one, dealing with a disqualification that turns on whether a member voluntarily gave up membership of a political party or voted against a direction issued by it, keeps the determination inside the House and gives it to the presiding officer.
Three finalities
The words "his decision shall be final" appear three times in this apparatus: in Article 103(1), in Article 192(1), and in paragraph 6(1) of the Tenth Schedule. They do not make the same thing final in all three places.
In Articles 103 and 192 the finality attaches to a decision whose content is fixed by clause (2). It forecloses a second decider, not a second determination; the determination was never the President's or the Governor's to make. In paragraph 6(1) the finality attaches to a decision whose content is the decider's own. The identical phrase, in the one case, protects a conclusion reached elsewhere; in the other, it protects a conclusion reached by the person protected.
What the first two finalities do to the courts is easy to overstate. Brundaban Nayak reached the Supreme Court on special leave from the dismissal of a writ petition, so the article plainly does not keep litigation away. But on the scope of the clause the Court was explicit: the words "shall be referred for the decision of the Governor" mean that the question "shall be decided by the Governor and Governor alone; no other authority can decide it, nor can the decision of the said question as such fall within the jurisdiction of the Courts". What the Court entertained was a question of construction of Article 192(1) — who holds the enquiry — and not the disqualification.
That is worth holding next to paragraph 7. Articles 103 and 192 keep the courts off the question itself by allocating it, and the Court has read them that way without difficulty. Paragraph 7 set out to do the same thing by saying so, in terms, for the Tenth Schedule, and is the one provision in the apparatus that never came into force. The Schedule contains an express ouster clause that was passed, is printed in the official compilation with a footnote recording that it is invalid, and has never operated. Articles 103 and 192 contain no such clause and have never needed one.
Where the Constitution sends an election instead
The placement of these provisions is clearer when set against what the Constitution does with the neighbouring question of whether an election was valid at all.
Article 71(1) provides that all doubts and disputes arising out of or in connection with the election of a President or Vice-President shall be inquired into and decided by the Supreme Court, whose decision shall be final. Article 329(b) provides that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. The words in Article 324(1) that referred to the appointment of election tribunals for the decision of doubts and disputes arising out of or in connection with elections were omitted by the Constitution (Nineteenth Amendment) Act, 1966.
So the validity of an election is for a court or for whatever authority an election law names, and the validity of the election of the President is for the Supreme Court itself. What is not sent to a court is the narrower, later question of whether a person validly elected has since become disqualified. That goes to the President or the Governor on the Election Commission's binding opinion if it falls under Article 102(1) or 191(1), and to the presiding officer if it falls under the Tenth Schedule.
Two further provisions complete the picture of how much now turns on a paragraph 6 decision. Article 75(1B), inserted by the Constitution (Ninety-first Amendment) Act, 2003, provides that a member of either House who is disqualified under paragraph 2 of the Tenth Schedule shall also be disqualified from being appointed a Minister, for the period running from the date of his disqualification until the date on which his term as such member would expire, or, where he contests an election before that period expires, until the date on which he is declared elected, whichever is earlier; Article 164(1B) does the same for a State. The same Amendment omitted paragraph 3 of the Schedule, which had exempted a member from disqualification where his original political party had split. The determination that paragraph 6 assigns to the presiding officer therefore now carries a consequence for office as well as for the seat, and has fewer defences standing in front of it than it did in 1985.
The same device in a statute
Parliament has used the Article 103(2) mechanism where it legislated on the same subject, which tells one something about how the device was understood.
Section 8A of the Representation of the People Act, 1951 deals with disqualification on the ground of corrupt practices. Sub-section (1) requires the case of every person found guilty of a corrupt practice by an order under section 99 to be submitted to the President, by such authority as the Central Government may specify, for determination of the question whether that person shall be disqualified and if so for what period; the proviso caps the period at six years from the date the order under section 99 takes effect. Sub-section (3) provides that before giving his decision on that question, or on a petition for removal of a disqualification under sub-section (2), "the President shall obtain the opinion of the Election Commission on such question or petition and shall act according to such opinion."
Section 9(2) of the same Act goes further in the same direction. A certificate issued by the Election Commission to the effect that a person having held office under the Government of India or of a State has or has not been dismissed for corruption or for disloyalty to the State "shall be conclusive proof of that fact", subject to a proviso requiring that the person be given an opportunity of being heard.
The pattern is consistent. Wherever the question is whether a particular individual may sit, or for how long he may not, the determination is placed with the Election Commission and the formal act is left with the head of the executive — in the Constitution by the words "shall act according to such opinion", in the statute by the same words, and in section 9(2) by making the Commission's certificate conclusive proof.
What the design assumes
Three things are missing from the apparatus, and the third is the one that matters.
The first is any period of time. Articles 103 and 192 fix no period within which a question that has arisen must be referred, within which the Election Commission must give its opinion, or within which the decision must follow the opinion. Paragraph 6 of the Tenth Schedule fixes none either. The only periods anywhere in this material are statutory: the three months in section 8A(1) of the 1951 Act within which the specified authority must submit a case to the President, and the six-year cap in its proviso.
The second is any consequence for inaction. Article 101(3)(a) says the seat "shall thereupon become vacant" when a member becomes subject to a disqualification, which is expressed as an automatic consequence of the disqualification rather than of its declaration; but the declaration is what the Election Commission and the President supply, and nothing in either article says what the position is in the interval.
The third is an account of why the two regimes differ. Articles 103(2) and 192(2) rest on a judgment that a question about the composition of a House should not be answered by the House or by a government that depends on it, and the Constitution carried that judgment to the point of making a non-judicial body's opinion binding on the head of state — something it does nowhere else, and declines to do for the opinions of its own highest court. In 1985 the same Constitution was amended to create a second disqualification, and the question whether it had been incurred was given to the presiding officer of the House concerned, with no opinion to obtain and the proceedings deemed to be proceedings of that House. The ouster clause written to complete that scheme never came into force.
The result is that the Constitution now contains two answers to the same structural problem. One of them assumes that the House cannot be trusted with its own membership. The other assumes that it can. Nothing in either text explains the change of mind, and the disqualification to which the second answer applies is the one whose facts are hardest to establish from outside the House.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.