Who is the Member of the Legislative Assembly (MLA)?

By Anadi Soni

Who is a MLA?

A Member of the Legislative Assembly (MLA) is a voter-elected representative of a constituency to the legislature of the state government in the Indian system of government.

The people elect a representative from each constituency, who then becomes a member. Each state has between 7 to 9 MLAs for each MP in the Lok Sabha, the lower house of the Indian bicameral parliament. Democratic governance in India is administered by representatives of the people.

The terms MLA (Member of the Legislative Assembly) and MP (Member of Parliament) refer directly and indirectly to the elected representatives of the country in the state Government and the union Government. respectively.

What does a MLA do?

With the formation of the third level of government, the smallest issues of a constituency must be dealt with at the district level and must therefore depend on the city council.

MLA with a request to repair roads, install street lights or fix a local problem. This happens due to the inadequate transfer of power and funds to the municipalities of the city. The main responsibility of an MLA is closely related to language proficiency and efficiency.

Running the State Assembly, the three main functions of the Assembly being to pass laws, hold the state executive accountable and sanction public spending.

Therefore, as a representative of the citizens in a state, the responsibilities of MLAs include:

Presenting, discussing, and amending draft laws, passing laws, and voting on topics listed in state lists and parallel lists. Private member bills should be used to promote what they think is suitable for inclusion in the bill.
Raise important issues publicly at the meeting. Ensure that projects/plans announced by the state or city government enter their area. For example, if there is no drinking water in the entire constituency, then MLA may cause problems in the congregation because it affects all citizens in that constituency.
Analyze how the government spends taxpayers’ money and ask the Minister of Finance when a dispute arises.
Ensuring the implementation of state government policies by holding administrative elections for the Secretary of State

Who can become a MLA?

The qualifications to become a member of the state assembly are:

The person must be a citizen of India.
The person must have completed the age of 25 years.
The person must not hold an office of profit.
The person must possess qualifications laid down by the Parliament of India.
The person must not be of unsound mind and should not have been disqualified by a competent Court.
The normal term of office of the Legislative Assembly is five years.

Difference between Member of Legislative Assembly (MLA) and Member of Parliament (MP)

An MLA is the elected representative of the legislative assembly of a state; Represents the constituencies of the congregation from which they were elected. MP is a member of the Lok Sabha or the Rajya Sabha. They work for the constituency they represent.
Lok Sabha MPs are directly elected during Lok Sabha elections, Rajya Sabha MPs are elected indirectly by MLAs.
MLAs are at the state level, while MPs work at the central level for the general public, they are administrators and promoters of development projects in their respective constituencies. The people can choose their representatives and also form their own government.

Appointment of MLA to the council of ministers

After the general election, elected members from the various party meets separately to elect their party leader in the legislature. Assembly to form a government.

Pursuant to Article 164 of the Constitution, the Governor appoints the Prime Minister and, on his advice, other Council Ministers from among the elected members of the Assembly. The governor takes the oath or affirmation of office.

Grounds for Disqualification of MLAs in India:

According to the Constitution, a person will be disqualified from being a member of the Legislative Assembly (MLA) or a member of the Legislative Council (MLC) on the following grounds:

If he or she holds gainful employment under the Government of India or any statutory status or position;
Any competent Court declares that a member is in a state of mental health, is on trial, is bankrupt or insolvent,
He/she is not an Indian citizen,
If he/she has voluntarily acquired or is loyal to a foreign state, or adhering to a foreign state.

Under the Representation of the People (RP) Act of 1951, a person will be disqualified as a member of the Legislative Assembly (MLA) or Member of the Legislative Council (MLC) if he is found guilty of any illegal practice in the Election and a person who has been convicted of a crime and sentenced to prison terms for different periods of time in accordance with Section 8 (1) No. 2 and 3.

Office of profit– The term profit charge is not defined in the constitution. However, Articles 102 (1) and 191 (1), which enact the concept of for-profit office, impose central and state-level restrictions on legislators accepting government offices

Principles of declaring Office of Profit

Four general principles have been developed for determining whether a position incurs constitutional disqualification:

When the government exercises control over the appointment, removal, and performance of the functions of the position,
When the position is remunerated,
When the position in which it is held has governmental powers (release of funds, land allocation, licensing, etc.) and
Whether the position enables the incumbent operator to influence through patronage.

Case Laws

R.S Nayak v AR Antulay (1984)

This is the most important case law in the history of Supreme Court of India in which the 5 judge bench has solved many important questions of law.

Facts in brief-

AR Antulay was the first chief minister of Maharashtra where he enjoyed this position from 1980-1982 where afterwards he remained member of legislative assembly. RS Nayak, on September 1,1981 , member of opposite party, filed a complaint against the chief minister AR Antulay before the additional metropolitan magistrate under section 161,165,384,109,120B,420 of IPC and sec 6 of prevention of corruption act of 1947 to prosecute the CM. But the magistrate didn’t take the cognizance because of the absence of sanctions.
The order went through an appeal to the High Court where High Court of Bombay held that for the appellant’s prosecution sanctions are necessary.
On 28th July, 1982, sanction was granted by the Governor of Maharashtra under sec 197 of the Code and sec 6 of the Act in respect of 5 items relating to 3 subjects only and refused granting sanction for all other items.
Lastly, on August 9, 1982, R.S. Naik then brought a new case against A.R. Antulay alleging him on many other grounds including those for which sanction has been refused by the Governor too as AR Antulay was no more the C.M.

Court proceedings-

On 25 July 1983, Justice R.B. Sule (special judge) has discharged A.R. Antulay and” held that a member of the Legislative Assembly is a public servant” and there was no valid sanction for prosecution of the appellant.
Again an appeal was filed by complainant under Article 136, where it was held that a member of Legislative Assembly is not a public servant and set aside the order of justice Sule. The order was passed for the transfer of case again AR Antulay to the high court for speedy disposal.
Special leave petition was then filed by A.R. Antulay in Supreme Court of India asking about the jurisdiction of the special judge to try the case which in violation of his Fundamental Right of life (Art 21) and equality (Art 14) and other provision of Criminal law. And also another petition was filed against which is questioning the validity of sec 197(1) of Criminal Procedure Code (CRPC).
The case thus went to Supreme Court where it was held that the high court does not have power first of all to transfer case from special judge court to High Court.

The Court found that following rights of the appellant have been violated:

The right to be tried by a Special Judge according to the procedure established by law.
The right to appeal in the High Court under Sec 9 of the Criminal Law Amendment Act.
The right to move to the Supreme Court under Sec 136 afterwards for second appeal, if necessary.
The complainant also has the right not to receive any special treatment from the special court specially established for him. This right is included right to equality
He also has the right not to be ordered by judicial sanctions against the basic principles of natural justice for violating Article 21 of the Natural Law.

He was hence at last remedied, tried for all the criminal charges and taken into trial by the Supreme Court.

Habibullah Khan V State of Orissa and Another

The important question for determination in this case is whether previous sanction is necessary for prosecution of an M.L.A under the Prevention of Corruption Act, 1988. This came after the decision of AR Antulay case where it was held that MLA is not a public servant.

The definition of “public servant” is given in section 21 of the Indian Penal Code, as contained in sub-clause (a) of the 12 clause .

“Every person—

(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;”

Thus he who does public duty is public servant if the above mentioned requirements are fulfilled. The prior decision got overruled taking the definition and other things into consideration and it was held that MLA is a public servant.”

According to Sec 19 of the act governor is the person who appoints the MLA and abolishes his office but he is not capable of issuing sanctions hence there is no public office who can issue sanctions for prosecution of MLA hence ,he is not that type of “public servant” for whose prosecution under this Act, any previous sanction is required by section 19.

Macharla Mohan Rao vs CPIO

The CPIO stated that the complainant had made his request for the right of access dated May 26, 2014, in which he had requested information on two assesses and vide letter Dated 05 June, 2014 it was pointed out that the information relates to third party who is excluded from disclosure under Section 8(1) of the RTI Act.

The Appellant’s representative argued that assesses is a MLA, a public servant to whom exchequer gives the salary. He claimed the MLA had usurped land from the poor and used it for other activities.

He claimed that the MLA had shown an exorbitant increase in income from Rs. 1 Cr to Rs. 7 Cr and also took out a Rs. 42 Cr loan from a public sector bank by illegally mortgaging the land.

So in the public interest representative’s income and income tax returns should be disclosed.

Tax returns represent personal data and are exempt from disclosure in accordance with Section 8 clause1 sub clause J. This personal information may only be disclosed if the CPIO determines that it is in the best interest of the public to disclose this information.

It can hardly be said that the general and tearful statements made by the complainants’ representative meet the test that disclosure is in the broader public interest.

Therefore, we have found no reason to interfere with the defendants’ decision.

References

Articles-

CASE LAWS-

AIR 1988 SC 1531 : A.R. Antulay v. R.S. Naik decided on 29th April 1988
Habibulla Khan vs State Of Orissa & Anr on 2 February, 1995 AIR 1123, 1995 SCC (2) 437
Macharla Mohan Rao Vs CPIO decided on 26 may, 2016 file no- CIC/CC/A/2014/002382/BS/10433

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