Article 104 of the Constitution of India prescribes a monetary penalty for a person who sits or votes as a member of either House of Parliament in certain circumstances despite not having the constitutional entitlement to do so.
- Meaning of Article 104
- Constitutional Requirement Under Article 104
- Clause-wise Explanation
- 1. Sitting or Voting Before Making the Oath or Affirmation
- 2. Sitting or Voting While Knowing That the Person Is Not Qualified or Is Disqualified
- 3. Sitting or Voting After Membership Has Ceased
- Amount of Penalty
- Sitting and Voting Are Separate Forms of Conduct
- Article 104 and Article 99
- Article 104 and Article 84
- Article 104 and Article 102
- Article 104 and Article 101
- Article 104 and Article 103
- Article 104 and the Tenth Schedule
- Important Distinctions
- Common Confusions
- Article at a Glance
- Quick Revision
- Conclusion
The provision covers three distinct situations: sitting or voting before making the required oath or affirmation, sitting or voting while knowing that the person is not qualified for membership or is disqualified, and sitting or voting after the person knows that their membership has ceased under a law made by Parliament.
Article 104 therefore operates as a constitutional safeguard against unauthorised participation in parliamentary proceedings.
Meaning of Article 104
Article 104 provides that a person who:
- sits or votes as a member of either House before complying with the oath or affirmation requirement under Article 99;
- sits or votes knowing that they are not qualified or are disqualified for membership; or
- sits or votes after knowing that their membership has ceased by virtue of a law made by Parliament,
is liable to a penalty of five hundred rupees for each day on which they sit or vote.
The provision does not itself determine whether a person is qualified or disqualified. Those questions are governed by other constitutional and statutory provisions.
Article 104 instead establishes the financial consequence for knowingly participating in parliamentary proceedings in the circumstances specified by the Constitution.
Constitutional Requirement Under Article 104
Article 104 identifies the following three situations:
| Situation | Constitutional consequence |
|---|---|
| Sitting or voting before making the Article 99 oath or affirmation | ₹500 for each day of sitting or voting |
| Sitting or voting while knowing that the person is not qualified or is disqualified | ₹500 for each day of sitting or voting |
| Sitting or voting after knowing that membership has ceased under a parliamentary law | ₹500 for each day of sitting or voting |
The penalty is therefore calculated for each day on which the person sits or votes in the prohibited circumstances.
Clause-wise Explanation
Article 104 is a single substantive provision rather than a provision divided into numbered clauses. Its operative language identifies the circumstances in which the penalty arises.
1. Sitting or Voting Before Making the Oath or Affirmation
Article 99 requires every member of either House to make and subscribe the prescribed oath or affirmation before taking their seat.
Article 104 provides the corresponding penalty where a person sits or votes as a member before making that oath or affirmation.
The constitutional sequence is therefore:
Election or nomination → oath or affirmation under Article 99 → taking the seat → participation as a member
A person who sits or votes before completing the oath or affirmation may attract the Article 104 penalty.
Why is this requirement important?
The oath or affirmation is not merely ceremonial.
Article 99 requires the member to undertake:
- true faith and allegiance to the Constitution;
- to uphold the sovereignty and integrity of India; and
- to faithfully discharge the duties of the office.
Article 104 reinforces the requirement by imposing a financial penalty for sitting or voting before the constitutional formality has been completed.
2. Sitting or Voting While Knowing That the Person Is Not Qualified or Is Disqualified
The second situation concerns a person who sits or votes as a member while knowing that they are not qualified or are disqualified for membership.
Two different concepts are covered:
Not qualified
The person does not satisfy the constitutional or statutory conditions necessary for membership.
The principal constitutional qualifications are found in Article 84, while other qualifications may arise under parliamentary legislation.
Disqualified
The person is subject to a constitutional or statutory disqualification.
Article 102 contains the principal constitutional disqualifications for membership of Parliament, while Parliament may create additional disqualifications by law.
Article 102(2) also incorporates disqualification under the Tenth Schedule.
Knowledge requirement
The wording of Article 104 is important because it refers to a person knowingly sitting or voting despite being unqualified or disqualified.
The provision therefore does not simply impose the penalty whenever a technical defect in qualification or disqualification exists.
The person’s knowledge of their status is expressly relevant to this ground.
3. Sitting or Voting After Membership Has Ceased
The third situation applies where the person sits or votes as a member even though they know that their membership has ceased by virtue of a law made by Parliament.
This is distinct from simply being disqualified.
The provision addresses a situation where the person’s membership has already ceased under parliamentary legislation, yet the person nevertheless participates as though they remain a member.
Again, the constitutional wording requires that the person knows that their membership has ceased.
Amount of Penalty
The penalty prescribed by Article 104 is:
Five hundred rupees for each day on which the person sits or votes in the circumstances specified by the Article.
The penalty is therefore not a single fixed amount regardless of duration.
It is calculated on a per-day basis.
For example, if the constitutional conditions for Article 104 are satisfied on three separate days, the penalty under the literal constitutional amount would be:
₹500 × 3 days = ₹1,500
The amount specified in Article 104 is part of the constitutional text.
Sitting and Voting Are Separate Forms of Conduct
Article 104 uses the expression “sits or votes”.
These are distinct forms of participation.
A person may attract the provision by sitting as a member even if they do not cast a vote. Likewise, voting as a member in the prohibited circumstances is separately covered.
Therefore, the provision should not be interpreted as applying only when an unauthorised person actually votes.
Article 104 and Article 99
Article 99 creates the oath or affirmation requirement.
Article 104 provides a penalty for sitting or voting before that requirement has been fulfilled.
The relationship can be summarised as:
Article 99 → duty to make oath or affirmation before taking the seat
Article 104 → penalty for sitting or voting before making it
Article 104 and Article 84
Article 84 specifies the qualifications for membership of Parliament.
Article 104, in its second category, addresses a person who knowingly sits or votes despite knowing that they are not qualified.
Therefore:
Article 84 → qualification
Article 104 → penalty for knowingly sitting or voting despite lack of qualification
Article 104 and Article 102
Article 102 specifies the constitutional disqualifications for membership.
Article 104 does not create those disqualifications. Instead, it provides a penalty where a person knowingly sits or votes despite being disqualified.
Thus:
Article 102 → grounds of disqualification
Article 104 → penalty for specified unauthorised sitting or voting
Article 104 and Article 101
Article 101 deals with vacation of seats.
If a member becomes subject to a disqualification under Article 102, Article 101 contains the constitutional rule concerning vacation of the seat.
Article 104 addresses a different issue: the penalty for sitting or voting in circumstances where the person knows they lack the entitlement to do so.
Therefore, vacation of a seat and the Article 104 penalty are separate consequences.
Article 104 and Article 103
Article 103 provides the constitutional procedure for deciding questions concerning whether a member has incurred a disqualification under Article 102(1).
Article 104 does not provide the procedure for deciding the disqualification.
Instead, it imposes a penalty in the circumstances specified by Article 104, including knowingly sitting or voting while not qualified or disqualified.
Article 104 and the Tenth Schedule
Article 102(2) provides for disqualification under the Tenth Schedule.
Article 104 separately deals with the consequence of sitting or voting when a person knows that they are not qualified or are disqualified.
Therefore, if a person is subject to a Tenth Schedule disqualification, the constitutional framework concerning that disqualification must be read together with Article 104 when considering subsequent unauthorised sitting or voting.
Important Distinctions
Sitting vs voting
Article 104 covers both.
A person need not necessarily cast a vote for the provision to become relevant; sitting as a member in the prohibited circumstances is independently mentioned.
Qualification vs disqualification
A person may be:
- not qualified to become a member; or
- disqualified from becoming or continuing as a member.
Article 104 covers both categories where the person knowingly sits or votes despite that status.
Disqualification vs cessation of membership
Disqualification and cessation are not identical concepts.
Article 104 separately refers to:
- knowing that the person is not qualified or is disqualified; and
- knowing that membership has ceased by virtue of a law made by Parliament.
The Constitution therefore recognises these as distinct circumstances.
Penalty vs loss of seat
Article 104 imposes a monetary penalty.
It does not itself constitute the general constitutional provision for vacation of a parliamentary seat. Vacation is dealt with principally under Article 101.
Article 104 penalty vs criminal punishment
The amount prescribed by Article 104 is a constitutional penalty of ₹500 for each day.
It should not automatically be described as a criminal sentence or imprisonment.
Common Confusions
Does Article 104 create disqualifications for MPs?
No.
Article 104 does not itself establish the grounds of disqualification. Article 102 and relevant parliamentary laws deal with disqualification.
What is the penalty under Article 104?
The constitutional penalty is ₹500 for each day on which the person sits or votes in the circumstances specified by the Article.
Does the penalty apply only if the person votes?
No.
Article 104 expressly covers both sitting and voting.
Does sitting before taking the oath attract Article 104?
Yes, Article 104 specifically covers sitting or voting before the person has made and subscribed the oath or affirmation required by Article 99.
Does mere lack of qualification automatically attract the penalty?
The Article specifically refers to a person who knowingly sits or votes while not qualified or disqualified.
The knowledge element is therefore important.
Does Article 104 apply after a person’s membership has ceased?
Yes, where the person knows that their membership has ceased by virtue of a law made by Parliament and nevertheless sits or votes as a member.
Does Article 104 decide whether an MP is disqualified?
No.
Questions concerning Article 102(1) disqualification are dealt with through the mechanism under Article 103.
Is ₹500 a one-time penalty?
No.
Article 104 specifies ₹500 for each day on which the person sits or votes in the relevant circumstances.
Article at a Glance
| Point | Position |
|---|---|
| Article | Article 104 |
| Subject | Penalty for unauthorised sitting or voting |
| Oath-related violation | Sitting or voting before Article 99 oath/affirmation |
| Qualification-related violation | Knowingly sitting or voting while not qualified |
| Disqualification-related violation | Knowingly sitting or voting while disqualified |
| Cessation-related violation | Knowingly sitting or voting after membership has ceased under parliamentary law |
| Penalty | ₹500 |
| Calculation | For each day of sitting or voting |
| Creates disqualification? | No |
| Main related Articles | Articles 84, 99, 101, 102 and 103 |
Quick Revision
- Article 104 deals with the penalty for unauthorised sitting and voting in Parliament.
- It applies to a person who sits or votes before making the oath or affirmation required by Article 99.
- It also applies where a person knowingly sits or votes while not qualified or disqualified for membership.
- It further covers knowingly sitting or voting after the person knows that their membership has ceased by virtue of a law made by Parliament.
- The penalty is ₹500 for each day on which the person sits or votes in the specified circumstances.
- The Article covers both sitting and voting.
- Article 104 does not create the underlying disqualification.
- Article 84 deals with qualifications for membership.
- Article 102 deals with disqualifications.
- Article 103 provides the decision-making mechanism for Article 102(1) disqualification questions.
- Article 101 deals with vacation of parliamentary seats.
- Article 99 contains the oath or affirmation requirement.
- The word “knowingly” is particularly important for the qualification, disqualification and cessation-of-membership situations.
- The penalty is calculated per day, not as a one-time amount.
Conclusion
Article 104 reinforces the constitutional requirements governing membership of Parliament by imposing a monetary penalty on persons who participate in parliamentary proceedings without the necessary constitutional entitlement. It covers sitting or voting before taking the prescribed oath or affirmation, knowingly participating while unqualified or disqualified, and knowingly participating after membership has ceased under parliamentary law. The provision works alongside Articles 84, 99, 101, 102 and 103, creating a broader constitutional framework for lawful participation in Parliament.
