The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is next Article in the series on constitutional provisions in order to aid our readers in understanding them.
173. Qualification for membership 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—
*[(a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule;]
(b) 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
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.
Article 173 corresponds to article 84 for the Union Parliament. In order to be eligible for membership of a State Legislature, a person (a) must be a citizen of India, (b) must taken an oath to the Constitution, (c) must not be less than 25 years of age in case of Assembly and not less than 30 years in case of the Council, as on the date of nomination, and (d) must possess other qualifications prescribed by law.
The Constitution (Sixteenth Amendment) Act, 1963 substituted sub clause (a) of article 173, by the following:
“(a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule;”
The amendment in articles 84 and 173 and forms of oath in the Third Schedule to the Constitution was made so as to provide that every candidate for the membership of Parliament or State Legislature, Union and State Ministers, Members of Parliament and State Legislatures, Judges of the Supreme Court and High Courts and the Comptroller and Auditor-General of India should take an oath to uphold the sovereignty and integrity of India.\
Proof of date of birth: In the absence of material on the basis of which the date of birth was recorded in School Register etc., the same did not have much evidentiary value, to prove the age of the candidates.
Oath or affirmation: The words “having been nominated” in the form of oath or affirmation to be made by a candidate for election to the legislature of a State clearly show that the oath or affirmation cannot be taken or made by a candidate before he has been nominated as a candidate.
The oath under 173(a) must be taken in accordance with the provisions of the Representation of People Act, 1951 prior to the date of scrutiny of nomination papers. If oath is not taken or taken only at the time of scrutiny of nomination papers, the nomination papers may be rejected.
The oath or affirmation must be before the date fixed for scrutiny, so that the candidate possesses the qualification under article 173(a) of the Constitution on the whole of the day on which the scrutiny of nomination has to take place.
The purpose of article 173(a) of the Constitution is to ensure that any person, who wants to be a member of Legislature of a State, must bear true faith and allegiance to the Constitution of India as by law established and undertake to uphold the sovereignty and integrity of India, and, to ensure this, he must make an oath or affirmation. Once such an oath or affirmation is made before a competent authority in respect of one constituency, he becomes bound by that oath or affirmation, even if he gets elected to the legislature from a different constituency, in case of his being nominated from more than one constituency. All that article 173(a) requires is one oath or affirmation in accordance with the form set out in the Third Schedule to the Constitution so as to remove the disqualification from being a candidate for election to the legislature of the State. The article does not mention that the making of oath or affirmation is to be preliminary to the validity of candidature in each constituency, and recognises the fact that, once the necessary qualification is obtained, that qualification removes the bar laid down by that article.
The importance of the requirement of oath or affirmation under article 173(a) has been reiterated in sub-section (2) of section 36 of the Representation of the People Act (1951) for Ground No. (a) thereof provides that the Returning Officer shall reject a nomination paper on the ground that on the date fixed for the scrutiny of nominations the candidate was, inter alia, not qualified to be chosen to fill the seat in the Legislative Assembly under article 173 of the Constitution. The requirement for the making and subscribing the oath or affirmation was therefore clearly mandatory.
Qualification for being a candidate: During the scrutiny the Returning Officer is under a statutory duty to satisfy himself that the candidate who may have filed nomination paper possesses necessary qualification for contesting the election. Enquiry during scrutiny is summary in nature as there is no scope for any elaborate enquiry at that stage. Therefore, it is open to a party to place fresh or additional material before the High Court to show that the Returning Officer’s order rejecting the nomination paper was improper. The proceedings in an election petition are not in the nature of appeal against the order of the Returning Officer. It is an original proceeding.
The court has to see that a person is not permitted to hold a post for which he is disqualified under the Constitution. A disqualified person should not hold the office but at the same time someone qualified therefor should not be unseated.
Where a candidate is challenged for not fulfilling the age of qualification for being a candidate under article 173, the burden of proof is on the petitioner.
To stand for election to a Legislative Assembly of a State a person must be an elector for any assembly constituency in that State and he must not be subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act 1950 or disqualifications given in Chapter III of the Act. Condition (b) in section 19 of the Act of 1950 of being ordinarily resident in a constituency finds no place in any of the provisions of the Act of 1950 or in article 173 of the Constitution.
Source: Dr Subhash C Kashyap