The Constitution of India
Article 361B
Disqualification for appointment on remunerative political post
A member of a House belonging to any political party who is disqualified for being a member of the House under paragraph 2 of the Tenth Schedule shall also be disqualified to hold any remunerative political post for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or till the date on which he contests an election to a House and is declared elected, whichever is earlier.
Explanation. — For the purposes of this article, —
(a) the expression “House” has the meaning assigned to it in clause (a) of paragraph 1 of the Tenth Schedule;
(b) the expression “remunerative political post” means any office —
(i) under the Government of India or the Government of a State where the salary or remuneration for such office is paid out of the public revenue of the Government of India or the Government of the State, as the case may be; or
(ii) under a body, whether incorporated or not, which is wholly or partially owned by the Government of India or the Government of a State and the salary or remuneration for such office is paid by such body,
except where such salary or remuneration paid is compensatory in nature.
Why this exists
This Article was added by the 91st Constitutional Amendment in 2003, alongside changes limiting the size of ministerial councils. Before this, a lawmaker disqualified for defection (switching parties for personal gain) could still be rewarded with a ministerial berth or a chairmanship of a government corporation, effectively getting paid perks despite being punished by the anti-defection law. Article 361B closes this loophole by extending the disqualification to remunerative political posts, so defectors cannot benefit financially while sidestepping the spirit of the Tenth Schedule.
How courts read it
There is no major Supreme Court judgment specifically interpreting Article 361B itself, since it operates mechanically once a disqualification under the Tenth Schedule is confirmed. However, the foundational case shaping how such disqualifications are decided is Kihoto Hollohan v. Zachillhu (1992), which upheld the Speaker's power to decide defection cases (subject to limited judicial review) under the Tenth Schedule — the very disqualification that triggers Article 361B's bar on paid posts.
Common misconceptions
- Myth: A disqualified defector can immediately take up any government advisory or ceremonial role without pay restrictions.
Fact: The bar only applies to posts with real salary or remuneration from public funds or government-owned bodies; purely compensatory payments (like reimbursed expenses) don't count, but paid political posts are blocked. - Myth: The disqualification lasts forever.
Fact: It only lasts until the original legislative term would have ended, or until the person is re-elected to a House — whichever happens first.