Article 101 of the Constitution of India deals with the circumstances in which a seat in Parliament becomes vacant. It regulates simultaneous membership of both Houses of Parliament, membership of Parliament and a State Legislature, resignation of parliamentary seats, and vacation of a seat when a member is absent from the House for a specified period without permission.
- Meaning of Article 101
- Clause-wise Explanation
- Clause (2): Membership of Parliament and a State Legislature
- Important distinction: Article 101(1) and Article 101(2)
- Clause (3): Resignation and absence from the House
- Clause (3)(a): Resignation of seat
- Who receives the resignation?
- Clause (3)(b): Absence without permission
- “Sixty days” and excluded periods
- Permission of the House
- Clause (4): Parliament may regulate simultaneous membership and resignation
- Article 101 and Resignation: Important Constitutional Safeguard
- Article 101 and the Representation of the People Act, 1951
- Relationship with Related Articles
- Important Distinctions
- Common Confusions
- Article at a Glance
- Quick Revision
- Conclusion
The Article is designed to prevent incompatible or prolonged forms of membership while providing constitutional mechanisms through which a parliamentary seat may become vacant.
Meaning of Article 101
Article 101 identifies four principal situations concerning vacation of parliamentary seats:
- a person cannot simultaneously be a member of both Houses of Parliament;
- a person cannot simultaneously be a member of Parliament and a House of a State Legislature;
- a member may resign their seat by writing to the appropriate presiding officer, subject to the constitutional requirements; and
- a member may lose their seat because of prolonged absence from the House without permission.
The Article also leaves certain details concerning simultaneous membership and resignation to be regulated by Parliament by law.
Clause-wise Explanation
Clause (1): Simultaneous membership of both Houses of Parliament
Article 101(1) provides that no person shall be a member of both Houses of Parliament.
A person therefore cannot simultaneously hold membership of:
- the Rajya Sabha and the Lok Sabha.
The Constitution prevents dual membership of the two Houses because each House has a separate constitutional composition and membership.
What happens if a person is elected to both Houses?
Article 101(1) establishes the prohibition, while the specific consequences and the choice of which seat is retained are to be dealt with according to the law made by Parliament.
The Constitution does not itself provide a detailed mechanism in Article 101 for determining which seat is automatically retained.
This is expressly dealt with through the words that Parliament shall by law provide for cases in which a person is chosen as a member of both Houses.
Clause (2): Membership of Parliament and a State Legislature
Article 101(2) provides that no person shall be a member both of:
- Parliament; and
- a House of the Legislature of a State.
Therefore, a person cannot simultaneously hold membership in Parliament and membership of a State Legislative Assembly or Legislative Council.
What happens if a person is elected to both Parliament and a State Legislature?
Article 101(2) provides that Parliament shall by law make provision for the vacation by the person of their seat in Parliament if the person is elected to both Parliament and a State Legislature.
The constitutional objective is to prevent simultaneous membership of the Union Parliament and a State Legislature.
Important distinction: Article 101(1) and Article 101(2)
The two provisions address different forms of incompatible membership.
| Provision | Prohibited combination |
|---|---|
| Article 101(1) | Membership of both Houses of Parliament |
| Article 101(2) | Membership of Parliament and a State Legislature |
Thus, Article 101 is not limited to dual membership within Parliament. It also prevents simultaneous membership at the Union and State legislative levels.
Clause (3): Resignation and absence from the House
Article 101(3) provides for two circumstances in which a parliamentary seat may become vacant:
- resignation of the seat; and
- prolonged absence from the House without permission.
The two situations are distinct and should not be confused.
Clause (3)(a): Resignation of seat
A member of either House may resign their seat by writing to:
- the Chairman of the Council of States, in the case of a Rajya Sabha member; or
- the Speaker of the House of the People, in the case of a Lok Sabha member.
However, resignation does not automatically take effect merely because the written communication has been submitted.
The constitutional provision requires the Chairman or Speaker to be satisfied that the resignation is:
- voluntary; and
- genuine.
If the presiding officer is satisfied that both conditions are met, the seat becomes vacant upon acceptance of the resignation.
Why are these conditions important?
The requirement that the resignation must be voluntary and genuine prevents a parliamentary member from being treated as having resigned where the resignation was obtained through:
- coercion;
- undue pressure; or
- circumstances showing that the communication does not genuinely represent the member’s intention.
The constitutional safeguard is therefore directed at ensuring that resignation is a free and authentic decision of the member.
Who receives the resignation?
| Member | Resignation submitted to |
|---|---|
| Rajya Sabha member | Chairman of the Council of States |
| Lok Sabha member | Speaker of the House of the People |
The distinction follows the separate constitutional structure of the two Houses.
Clause (3)(b): Absence without permission
Article 101(3)(b) provides that a seat may become vacant if a member of either House is absent from all meetings of the House for a period of sixty days without the permission of the House.
The provision is subject to an important exclusion.
In calculating the sixty-day period, a period during which the House is:
- prorogued, or
- adjourned for more than four consecutive days
is not taken into account.
Why does this matter?
The Constitution does not simply count sixty calendar days from the last attendance.
The relevant period concerns absence from meetings of the House, and certain periods when the House itself is not meeting are excluded from the calculation.
“Sixty days” and excluded periods
The constitutional rule can be understood as:
Absence from all meetings + no permission of the House + 60-day period, subject to constitutionally excluded periods = possible vacation of seat
The House must therefore consider whether the member was absent from all meetings and whether the statutory/constitutional conditions for counting the period are satisfied.
Permission of the House
The constitutional provision refers specifically to absence without permission of the House.
Therefore, absence by itself does not automatically result in vacation of the seat.
The constitutional trigger is prolonged absence from all meetings without the required permission.
Clause (4): Parliament may regulate simultaneous membership and resignation
Article 101(4) provides Parliament with legislative authority to regulate certain matters connected with vacation of seats.
The clause enables Parliament to make provision by law for cases in which a person is:
- chosen as a member of both Houses of Parliament; or
- chosen as a member of Parliament and a State Legislature.
The detailed statutory framework therefore supplements the constitutional prohibition against simultaneous membership.
Article 101 and Resignation: Important Constitutional Safeguard
The resignation mechanism under Article 101 is not an unrestricted administrative process.
The presiding officer must examine whether the resignation is voluntary and genuine.
This means the presiding officer has a constitutional responsibility to determine whether the resignation actually represents the member’s free and genuine decision.
The safeguard applies before the seat is treated as vacant on the basis of resignation.
Article 101 and the Representation of the People Act, 1951
The constitutional framework under Article 101 operates alongside legislation enacted by Parliament dealing with elections and membership of Parliament.
The Representation of the People Act, 1951 contains statutory provisions concerning elections, disqualification and related matters.
The detailed procedure concerning simultaneous membership and related questions may therefore involve parliamentary legislation made under the authority recognised by Article 101.
However, Article 101 itself remains the primary constitutional provision governing vacation of parliamentary seats.
Relationship with Related Articles
Article 80 – Composition of the Council of States
Article 80 provides for the composition of the Rajya Sabha.
Article 101 is relevant because a Rajya Sabha seat may become vacant in the circumstances specified in Article 101.
Article 81 – Composition of the House of the People
Article 81 deals with the composition of the Lok Sabha.
Article 101 provides circumstances in which seats in that House may be vacated.
Article 102 – Disqualifications for membership
Article 102 deals with constitutional disqualifications for membership of Parliament.
Article 101 and Article 102 should not be confused.
- Article 101 deals with vacation of seats.
- Article 102 deals with disqualifications for membership.
A seat may become vacant under Article 101 without the member necessarily having been disqualified under Article 102.
Article 103 – Decision on questions as to disqualification
Article 103 deals with questions regarding disqualification under Article 102.
It is therefore concerned with a different constitutional issue from the vacation mechanisms under Article 101.
Article 100 – Voting, vacancies and quorum
Article 100(2) provides that a House may act notwithstanding vacancies in its membership.
Article 101, by contrast, identifies circumstances in which a particular parliamentary seat becomes vacant.
Thus:
Article 100 → effect of vacancies on the functioning of the House
Article 101 → circumstances in which a parliamentary seat is vacated
Article 104 – Penalty for sitting and voting before taking oath or while disqualified
Article 104 provides a penalty for certain persons who sit or vote in Parliament without satisfying the applicable constitutional requirements.
Article 101 concerns the status of the parliamentary seat itself.
The two provisions therefore operate at different stages and address different consequences.
Important Distinctions
Resignation vs disqualification
Resignation is a voluntary vacation mechanism initiated by the member.
Disqualification, by contrast, arises from specified constitutional or statutory grounds.
A member does not become disqualified merely because they resign.
Resignation vs absence
A resignation is an affirmative act by the member.
Vacation due to absence under Article 101(3)(b) results from prolonged absence without permission of the House.
Voluntary vs genuine resignation
The Constitution requires both conditions.
The presiding officer must be satisfied that the resignation is:
- voluntary; and
- genuine.
These requirements are cumulative.
Sixty days vs sixty consecutive sitting days
Article 101(3)(b) does not simply state that a seat becomes vacant after sixty consecutive calendar days.
It refers to absence from all meetings of the House for sixty days, with specific periods excluded from the calculation.
The constitutional wording must therefore be applied carefully.
Vacancy of a seat vs dissolution of the House
Vacation of an individual seat under Article 101 is different from dissolution of the Lok Sabha.
A parliamentary seat may become vacant while the House itself continues to exist.
Dissolution concerns the constitutional existence of the Lok Sabha as a House.
Common Confusions
Can a person be a member of both the Lok Sabha and Rajya Sabha at the same time?
No.
Article 101(1) prohibits simultaneous membership of both Houses.
Can a person simultaneously be an MP and an MLA or MLC?
No.
Article 101(2) prohibits simultaneous membership of Parliament and a House of a State Legislature.
Does submitting a resignation automatically vacate the seat?
No.
The Chairman or Speaker must be satisfied that the resignation is voluntary and genuine before the seat becomes vacant.
Who receives the resignation of a Rajya Sabha member?
The resignation is addressed to the Chairman of the Council of States.
Who receives the resignation of a Lok Sabha member?
The resignation is addressed to the Speaker of the House of the People.
Does absence for sixty days automatically vacate the seat?
Not simply by the passage of sixty days.
The constitutional conditions must be satisfied, including absence from all meetings without permission of the House and the applicable exclusions from the calculation.
Are prorogation periods counted toward the sixty-day period?
No.
A period during which the House is prorogued is excluded from the calculation.
Is an adjournment of the House always excluded?
No.
Article 101(3)(b) excludes a period during which the House is adjourned for more than four consecutive days.
Does Article 101 deal with disqualification?
No.
Article 101 primarily deals with vacation of seats. Disqualifications are dealt with principally by Article 102.
Article at a Glance
| Point | Position |
|---|---|
| Article | Article 101 |
| Subject | Vacation of seats in Parliament |
| Dual membership prohibited | Both Houses of Parliament |
| Union-State dual membership | Parliament and State Legislature |
| Rajya Sabha resignation | To Chairman |
| Lok Sabha resignation | To Speaker |
| Resignation conditions | Must be voluntary and genuine |
| Absence rule | Absence from all meetings for 60 days without permission |
| Excluded period | House prorogued |
| Other excluded period | House adjourned for more than four consecutive days |
| Legislative power | Parliament may regulate specified matters by law |
| Related disqualification provision | Article 102 |
| Effect of vacancy on House | Governed separately by Article 100 |
Quick Revision
- Article 101 deals with vacation of seats in Parliament.
- A person cannot simultaneously be a member of the Lok Sabha and Rajya Sabha.
- A person cannot simultaneously be a member of Parliament and a State Legislature.
- Parliament may make laws regulating the consequences of such simultaneous membership.
- A Rajya Sabha member resigns by writing to the Chairman.
- A Lok Sabha member resigns by writing to the Speaker.
- The presiding officer must be satisfied that the resignation is voluntary and genuine.
- A seat may become vacant because of absence from all meetings of the House for sixty days without permission.
- A period during which the House is prorogued is excluded from the sixty-day calculation.
- A period during which the House is adjourned for more than four consecutive days is also excluded.
- Article 101 is about vacation of seats; Article 102 is about disqualification.
- Article 100(2) separately provides that a House may act notwithstanding vacancies in its membership.
Conclusion
Article 101 establishes the constitutional framework for vacation of parliamentary seats. It prevents simultaneous membership of incompatible legislative bodies, provides a safeguarded mechanism for voluntary resignation, and permits vacation of a seat in cases of prolonged unauthorised absence. By leaving detailed arrangements concerning simultaneous membership and related matters to Parliament, the Article combines constitutional principles with legislative flexibility while maintaining the integrity of parliamentary membership.
