The Constitution of India
Article 190
Vacation of seats
(1) No person shall be a member of both Houses of the Legislature of a State and provision shall be made by the Legislature of the State by law for the vacation by a person who is chosen a member of both Houses of his seat in one house or the other.
(2) No person shall be a member of the Legislatures of two or more States specified in the First Schedule and if a person is chosen a member of the Legislatures of two or more such States, then, at the expiration of such period as may be specified in rules1 made by the President, that person's seat in the Legislatures of all such States shall become vacant, unless he has previously resigned his seat in the Legislatures of all but one of the States.
(3) If a member of a House of the Legislature of a State —
(a) becomes subject to any of the disqualifications mentioned in clause (1) or clause (2) of article 191; or
(b) resigns his seat by writing under his hand addressed to the speaker or the Chairman, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case may be,
his seat shall thereupon become vacant:
Provided that in the case of any resignation referred to in sub-clause (b), if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation.
(4) If for a period of sixty days a member of a House of the Legislature of a State is without permission of the House absent from all meetings thereof, the House may declare his seat vacant:
Provided that in computing the said period of sixty days no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive days.
Why this exists
The framers wanted to ensure that each elected member represents one constituency in one House at a time, preventing overlapping mandates and confusion about representation. They also wanted mechanisms to remove members who become disqualified, voluntarily resign, or abandon their duties through prolonged unexplained absence, ensuring the Legislature functions with genuinely committed and eligible members. The safeguard on resignations (checking they are voluntary) was added to prevent coerced or fraudulent resignations, a concern that grew more prominent after real-world instances of political pressure on legislators.
How courts read it
Courts have generally deferred to the Speaker's or Chairman's satisfaction on whether a resignation is voluntary and genuine, though judicial review remains available if the decision is shown to be arbitrary or mala fide. Cases involving resignations amid political defections (especially before and after the Anti-Defection Law was added via the Tenth Schedule in 1985) have tested how Speakers assess 'voluntariness', with courts emphasizing that the Speaker must conduct a fair inquiry rather than accept resignations mechanically.
Common misconceptions
- Myth: A resignation from a legislator is always accepted automatically.
Fact: The Speaker or Chairman must first check whether the resignation is voluntary and genuine before accepting it, and can refuse it if there's coercion or fraud. - Myth: Missing a few sessions can immediately cost a legislator their seat.
Fact: The seat can only be declared vacant after 60 days of unexplained absence from all meetings, and time when the House is prorogued or adjourned for over four days doesn't count. - Myth: A person can hold seats in two states' legislatures if elected to both.
Fact: Clause (2) prohibits this; the person must resign from all but one within a time fixed by presidential rules, or lose all such seats automatically.