How seriously do our ministers take their promise to be faithful to the Constitution?
On December 24, 2017, the Union minister of state for employment and skill development, Anant kumar Hegde, made an astounding declaration. Hegde, who was speaking at an event in the Koppal district of Karnataka, said: “I will be happy if someone identifies as Muslim, Christian, Brahmin, Lingayat or Hindu. But trouble will arise if they say they are secular.”
He also said that those who claimed they were secular “do not have an identity of their parents and their blood”, adding that it was time to amend the Constitution. Earlier, Hegde, who has been a member the Rashtriya Swayamsevak Sangh and an activist of the Akhil Bharatiya Vidyarthi Morcha, had been booked for hate speech for making derogatory remarks against Islam. In March 2016, he was quoted as saying that “as long as there is Islam in this world, there will be terrorism".
On January 1, BJP MLA (Alwar) Banwari Lal Singhal, in a Facebook post, wrote: “The way the Muslim population is increasing, the existence of Hindus is in danger. It is a well-planned conspiracy to have a Muslim in the chair of president, prime minister and chief ministers.”
These are only two recent examples of the ever burgeoning mountain of abuse and hate comments targeting minority communities and fanning sectarianism across the country ever since the run up to the 2014 general elections and the subsequent formation of the Modi government. What many do not realise is that these elected members of the government are each time violating:
1) Third Schedule of the Constitution of India
2) Section 29A in the Representation of the People Act, 1951.
The Indian Constitution enjoins that the prime minister, including every minister of his cabinet and ministers of state of the Union will take an oath of office on appointment to his/her august office. The oath prescribed in the Third Schedule of the Part I of our Constitution is mandatory and inviolable, namely:
Form of oath of office for a minister for the Union:
"I, AB, do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established,_439 [that I will uphold the sovereignty and integrity of India] that I will faithfully and conscientiously discharge my duties as a Minister for the Union and that I will do right to all manner of people in accordance with the Consitution and the law, without fear or favour, affection or ill-will."
The forms of oath have been prescribed for the president, the prime minister, the chief justice of India, the controller and auditor general, and the members of legislature etc. The obvious intention was to ensure that the person concerned makes a commitment to live by the Constitutional process. He has to owe allegiance to the Constitution. He has to uphold the sovereignty and integrity of the country. A member of the legislature, Union or state, represents a constituency. He is the spokesman of all the people belonging to the area. He has to stand for all, irrespective of their shade of faith and religions. He is the people's representative. He is not free to cater to the belief of a sect or section of the society. He does not represent the Christians, Hindus or Muslims, but the Buddhists, Jains and all others as well. By the very nature of his office, he is bound to inspire equal confidence and faith in the minds of all.
This is essential to ensure that he represents everyone, irrespective of the caste or creed, faith or religion. It is meant to help maintain national harmony, intended to foster unity in diversity so as to preserve the integrity of India. That is the apparent rationale and reason for the prescription of a "form" or the "oath" in the Constitution. Thus, every person has to conform to the "form" as prescribed. The Constitution does not permit any deviation or variation. For, if any deviation were permitted, we may not know where to stop. In case, the person chooses to take the oath, he has to swear in the name of "God". None else.
How seriously do our ministers and leaders take this promise to be faithful to the Constitution, which means essentially to uphold the law?
On February 10, 2017, BBC reported this news: “An Indian minister says she made rape suspects beg for their lives and ordered police to torture them.”
Uma Bharti, the water resources minister, claimed she told the victims to watch as the offenders were hung upside down.
“Rapists should be tortured in front of victims until they beg for forgiveness,” she said. “The rapists should be hung upside down and beaten till their skin comes off,” the minister is reported to have said.
“Salt and chili should be rubbed on their wounds until they scream. Mothers and sisters should watch so they can get closure.”
What the minister is claiming to have done is essentially a criminal act. The law and the Constitution do not allow for what Bharti did, because the process for handling crimes is clear. The police register a case and investigate, the state prosecutes and the judiciary decides. What Bharti was boasting she did was violating the Constitution and law she swore to uphold.
These are grounds for disqualification:
In view of Article 13 of the Constitution, the word law as mentioned in Clause (e) supra, also includes the law contained in the body of the Constitution itself, namely, third Schedule, which being part thereof, the oath of office as contained therein shall also be construed as law, infraction of which would attract disqualification as envisaged by Article 191 of the Constitution.
Section 29A in the Representation of the People Act, 1951, covers the registration of associations and bodies with the Election Commission of India registering themselves as political parties. It states that the application under sub-section (1) shall be accompanied by a copy of the memorandum or rules and regulations of the association or body, by whatever name called, and such memorandum or rules and regulations shall contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India.
In other words it is conditional to agreeing to these terms and being implicitly in consonance to their ideals that one may register as a party with the Election Commission of India.
One might ask how do parties like the Shiv Sena and the BJP, with their hard line anti-minority fundamentalist stances ingrained in their DNA, and with so many provocative speeches and comments in the public domain, even qualify for being registered as recognised political parties and how are they still contesting elections?
Well, it is worth looking into one such case:
Shri R Balakrishna Pillai was sworn in as a minister of the Cabinet headed by K Karunakaran in 1982. At the function of the Kerala Congress held at Ernakulam, on the May 25, 1985, the minister made a speech which gave rise to four writ petitions, two of which have been disposed of in the year 1985. The question before the judge was "whether the high court can in the exercise of its powers under Article 226 of the Constitution, declare an appointment of a minister made under Article 164 of the Constitution, unconstitutional". The bench proceeded to observe that "the oath of office insisted upon under the Constitution is the prescription of a fundamental code of conduct in the discharge of the duties of these high offices. The oath binds the person throughout his tenure in that office, and he extricates himself from the bonds of the oath only when he frees himself from the office he holds. Breach of this fundamental conduct of good behaviour may result in the deprivation of the very office he holds… Breach of oath may thus be a betrayal of faith. The appointing authority, the governor, in such cases, can consider whether there was, in fact, any breach of oath. It is not for this Court to embark on any such inquiry."
The full bench took the view that termination of office on the ground of breach of oath is a power which could be exercised under the Constitution by the appointing authority and that the high court has no jurisdiction under Article 226 of the Constitution to take action for the breach of oath of office committed by the minister. This principle has been reiterated very clearly in paragraph 10 of the judgment where it is stated:
"The question as to whether there was breach of oaths of office and of secrecy committed by a minister is outside judicial review under Article 226 of the Constitution. It is to be decided in other appropriate forums; and in the case of the minister in a state, it falls within the discretionary domain of the chief minister, and/or the governor."
Although the case was dismissed because the evidence (a video cassette of the speech) had not been submitted in time, the observations of the bench are illuminating.
In a more recent case - Kashi Purohit versus the State Of Rajasthan on February 1, 2008 - Kashi Purohit, a resident of Jaipur, claiming himself to be a public-spirited person, approached this court by filing the present writ petition, praying for a mandamus to be issued to the governor of the state of Rajasthan, to refer the question of disqualification of ministers of the state of Rajasthan and the members of the legislative Assembly referred to in paragraphs 10 to 16 of the petition for having committed breach of the oath of their office.
The principal secretary to the governor informed the petitioner that the issues raised in the petition were not covered as disqualification under Article 191(1) of the Constitution and, therefore, any reference of the subject for the opinion of the Election Commission under Article 192 did not appear warranted.
Articles 191 and 192 of the Constitution exhaustively deal with and furnish composite machinery regarding the disqualification of a member of the legislative assembly. It is significant to notice that breach of oath as a minister, an oath which he takes before entering the office, is not such a disqualification either under the Constitution (Article 191) or even under any other law made by Parliament including the Representation of the People Act. Violation of oath may be a betrayal of faith reposed in the person taking oath which unfailingly indicates and demonstrates a fundamental Code of Conduct.
To hold violation of oath as a disqualification would mean adding another clause in Article 191(1) of the Constitution.
In the event of another amendment to the Constitution of India, it would be desirable to include such a clause that would prevent the appointment of public citizens who misrepresent themselves and come to power exercising breach of faith.