1. Does the oath taken by the third respondent as a Member of the Legislative Assembly conform to the provisions of the Constitution? If it does not, is the third respondent liable to pay a penalty of Rs. 500 for each day on which he had sat or voted in the Legislative Assembly from June 5, 2001 ? These are the primary issues that arise for consideration in this petition under Article 226 of the Constitution. The facts may be briefly noticed.
2. The petitioner is working as a Journalist. He claims that he has an implicit faith in the Constitution and has always tried to uphold its true letter and spirit. He complains that the third respondent, who was elected to the 11th Kerala Legislative Assembly from the Kodungaloor Constituency, "had not complied with the constitutional provisions under Article 188 according to the form set out for the purpose in (the) third Schedule at the time of taking oath/affirmation".
3. The elections to the 11th Kerala Legislative Assembly were held in the year 2001. The third respondent had filed his nomination paper. He had subscribed to the oath "in the name of God". Accordingly, his nomination paper was accepted by the Returning Officer. The third respondent had won the election.
4. On June 5, 2001, the 137 elected Members of the Legislative Assembly had subscribed to the oath/affirmation before the then Protem Speaker. This ceremony was telecast live. The petitioner had noticed the fact that the third respondent had not taken oath in conformity with the Constitution. At that time, the third respondent had not taken oath "either" in (the) name of God or solemnly affirmed, but had taken oath in the name of Sree Narayana Guru". On this basis, the petitioner alleges that the oath taken by the third respondent was not in accordance with the provisions contained in the Constitution. Despite that, he has been taking part in all the legislative activities including the election of the first respondent as the Speaker of the Legislative Assembly. Having not complied with the constitutional provision, he is liable to pay a fine of Rs. 500 for each day under Article 193 of the Constitution. Still further, the petitioner avers that on having come to know of the violation of the Constitution by the third respondent, he had sent a representation to the Speaker on June 11, 2001. Copies were also sent to His Excellency the Governor and the Minister for Parliamentary Affairs. It was requested that the third respondent be directed to take fresh oath strictly in accordance with Article 188 "as per the form set out in third Schedule of our Constitution". A copy of the representation has been produced as Ext.P1. He had waited for a response. He did not receive anything in reply. Consequently, he had sent a reminder, vide letter dated July 5, 2001. A copy of the letter has been produced as Ext.P2. Still, nothing was heard.
5. In the meantime, the matter was noticed in the media. Various "legal luminaries and constitutional experts had expressed their opinion". They were unanimous "that the true letter and spirit of our Constitution should have been upheld". A copy of the report dated June 17, 2001, which had appeared in the Indian Express has been produced as Ext.P3. It has been alleged that the third respondent had not taken oath in the name of God or solemnly affirmed as required under the Constitution. This was not "due to an ignorance or mistake........... but was the part of the wilful, deliberate and planned attempt for" achieving political and religious gains. A copy of the press report that had appeared in Kerala Kaumudi has been produced as Ext.P4. The petitioner alleges that even at the time of election campaign, the third respondent had assured the voters that in case he won the election, he would take "oath only in the name of Sree Narayana Guru".
6. The petitioner alleges that the elected Members have to take oath in accordance with Article 188 read with the third Schedule before taking their seat in the Legislative Assembly. This has to be done to fulfil the constitutional obligation of expressing true faith and allegiance to the Constitution. A Member has to undertake to uphold the sovereignty and integrity of India. Despite the constitutional mandate, the second respondent has failed to take action against the third respondent.
7. In response to the representation, the petitioner had received a reply from the first respondent informing him that he had found no reason to interfere in the matter. A copy of the communication has been produced as ExtP5. According to the petitioner, the objection raised by him has not been considered. The Speaker has failed to "uphold the constitutional responsibility of his Office". Thus, he has approached this Court with the prayer that the communication from the Speaker be annulled. The third respondent be directed to take oath according to the constitutional provision and that the 4th respondent be asked to recover an amount of Rs. 500 for each day of default from the third respondent with effect from June 5, 2001, He further prays that the third respondent be restrained from taking pan in any legislative activity.
8. The matter was posted before a Bench of this Court initially on August 22, 2001. They had asked the Advocate General and the Senior Central Government Standing Counsel to assist the Court. After hearing the matter on September 5, 2001, the Bench had directed the issue of notice to the respondents. Mr. P. J. Dev, an advocate of this Court, has filed a miscellaneous application viz. C.M.P. No. 44692/2001 for being impleaded as a party. It appears that on November 1, 2001, the Bench had heard the application while hearing the Original Petition. On the same day, the Bench had passed the following order:
"Notice addressed to respondent No. 1 has been tendered to respondent No. l, but has been refused to be received by him. Since notice has been properly addressed and tendered to the addressee, in terms of Rule 51(2) of the Kerala High Court Rules, we declare that there has been sufficient service of notice on respondent No. l."
Thereafter, respondent Nos.3 and 4 filed two separate counter-affidavits. The third respondent has averred that "the matter which relates to the legislative bodies under the Constitution and the conduct of their affairs is not amenable to judicial review. Thus, the Writ Petition is not maintainable". He maintains that he had "taken oath in conformity with Article 188". The Legislature can prevent him from taking his seat and performing the duties as a Member of the Assembly. Even if "it be assumed that" he had not made "the oath or affirmation in compliance with Article 188, the Court cannot restrain him from taking his seat and discharging the duties as a Member of the Legislative Assembly. He asserts that the petitioner has no locus standi. The legislators had accepted the oath as taken by him "without any protest". The Speaker had "also accepted the oath without any objection". Thus, no member of the public can object. According to the respondent, Article 188 only means that "the forms set out in the Third Schedule or any form as near thereto shall be used for making the oath or affirmation under it". It is enough if the form set out in the Third Schedule is substantially followed in taking oath in the name of Sree Narayana Guru. The "swearing in the name of Sree Narayana Guru does not interfere with or deny the rights of others to do so". A perusal of the form shows that a person has "the option to swear in the name of God, which only means that the person is giving guarantee to the Assembly........through God. I worship and consider Sree Narayana Guru as the God. Therefore, if I swear in the name of Sree Narayana Guru whom I worship as God, cannot be faulted with for not strictly adhering (to) the form set out in the Third Schedule of the Constitution". Nobody can thrust his idea of God on another. The Constitution does not define the expression 'of God'. A tradition bound Hindu attributes Godliness in Guru, Teacher and spiritual guide. Kerala had made two notable contributions to the galaxy of great teachers who have contributed to the refinement of Indian life. These were "Sree Adi Sankara Acharya in the 8th century and Sree Narayana Guru in the 19th". The Guru "was born in Chempazhanthi in Thiruvananthapuram District in the erstwhile Travancore State in Kerala in 1854". He had entered 'Maha Samadhi' or the great silence on September 20, 1928. The Guru idols are installed and are being worshiped in temples. Offerings are made. He "must be deemed to have attained the status of a universal soul, i.e. God". The third respondent refers to the teachings of the Guru and maintains that there is no merit in this petition. He prays that it should be dismissed.
9. The Joint Secretary, Department of Parliamentary Affairs has filed a separate counter-affidavit on behalf of the State of Kerala. He avers that he has been "authorised to swear to the counter-affidavit on behalf of the 4th respondent". In paragraph 3, it has been stated that "the first respondent is unable to agree with the views expressed by the petitioner because no illegality or irregularity has been committed by the third respondent". Still further, it is maintained that respondent No. 1 is of the view that the freedom of speech etc., "are susceptible of restriction only to prevent grave and immediate danger to interest, which this State Government may lawfully protect". The freedom "asserted by the third respondent does not bring them in collision with the rights of any other individual........ swearing in the name of Sree Narayana Guru does not interfere with or deny the rights of others to do so, nor is there any question in this case that his behaviour has led (to) something contrary to peace or order". It is conceded that Article 188 of the Constitution cast "a liability on every Member of the Legislative Assembly or the Legislative Council of a State to make and subscribe before the Governor or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule before taking his seat". It is not disputed that the Member should "bear true faith and allegiance to the Constitution of India as by law established and that he will uphold the sovereignty and integrity of India and that he will faithfully discharge the duties upon which he is about to enter". In order to ensure this purpose, the Member of the Legislature is given an option to swear in the name of God which only means that the person is giving a guarantee to the Assembly as above said through God. Therefore, if any person swears in the name of Sree Narayana Guru whom he worships as the most valuable God, he cannot be faulted with for not strictly adhering to the form set out in the Third Schedule of the Constitution. God is a concept. Nobody can thrust his idea of 'God' on another and prescribe the mode of belief in God. In Pre-Christian sense, God is a Super Human Person who is worshipped as having power over nature and fortunes of mankind. According to Polytheistic religions, God is "a being to whom worship ascribed, an image of such a deity, an idolized person or thing. God in monotheistic religions, the Supreme Being, seen as the omnipotent creator and ruler of the universe". It is maintained that God can be a human being.
10. It has been stated that "the House is constituted on the issuance of notification by the Election Commission under Section 73 of the Representation of the Peoples Act, 1951. During the period after the Constitution of the House and before the summoning of the meeting of the House, the elected Member is entitled to all privileges, salaries and allowances, one of them being the right to vote in the election to Rajya Sabha. Thus, whatever transpires after the Constitution of the House is an internal matter over which Article 212(2) interdicts the Courts from interfering". The elected Members had taken the oath on June 5, 2001. A copy of the said Notification has been produced as Ext.R4(a). The Session had continued on June 6, 2001 and the Speaker was elected. Thereafter, the Session had continued from June 29, 2001 to July 23, 2001. The "oath was administered to the third respondent in a Session of the House". The respondent maintains that "oath taking is a part of the conduct of the business of the House and is an internal affair of the House". It was on May 16, 2001 that the Election Commission had published the Notification under Section 73 of the Representation of Peoples Act. A copy of this Notification has been produced as Ext.R4(c). Whatever transpired in the first Session is nothing but a proceeding within the ambit of the conduct of the House, which is only subject to the discipline of the House. Apart from Articles 212 & 194(2) also insulates the proceedings in the House". Judiciary "should not sit as a Court of appeal or revision over the rulings of the Speaker with respect to the proceedings of the House". It is also submitted that "the decision of the person before whom oath or affirmation is made as to whether the oath or affirmation has been properly made is final. Had the third respondent fail (failed) to comply with the requirements of Article 188 of the Constitution, the Government would have interfered and corrected him during the oath taking ceremony". The Constitution does not provide that "the seat of a Member of a House of Legislature shall become vacant if he fails to comply with the requirements of Article 188. Article 190 specifies the circumstances in which the seat of a Member becomes vacant. The failure to take oath or affirmation under Article 188 of the Constitution, is hot one of those circumstances. It is open to the House to exclude a Member who has not made an oath or affirmation under Article 188 and to declare his seat vacant under Article 190(4)". Still further, it is maintained that even if there has been "an irregularity in the matter of taking oath and assuming without admitting that the allegations of the petitioner are correct, the matter complained of is not a manifest irregularity which calls for interference by this Honourable Court exercising its discretionary jurisdiction under Article 226 of the Constitution". Thus, the respondent prays that the Writ Petition be dismissed.
11. After the arguments had been concluded, we had asked the Advocate General to produce before us the form in which the third respondent had taken the oath. He had produced before us a one page document which reads as under:
"ELEVENTH KERALA LEGISLATIVE ASSEMBLY ROLL OF MEMBERS The persons, whose signatures are hereinafter recorded have made the prescribed oath or affirmation."
This document was apparently received by the Advocate General by Fax. It is taken on record of mark A, Thereafter, the petitioner had filed Civil Miscellaneous Nos. 3387 and 3388 of 2003. It was inter alia prayed that the Secretary, Kerala Legislative Assembly be impleaded as the 6th respondent and that respondent Nos. 4 and 6 may be asked to produce proceedings dated 5th June, 2001 in respect of the oath made and subscribed by the third respondent. Learned counsel had served a copy of these applications on the Advocate General as also the counsel for respondent No. 3 C.M.P. No. 3387/2003 was posted before the Bench on January 21, 2003. The case was adjourned to enable the learned Government Pleader who had appeared on behalf of the Advocate General to obtain instructions so as to show as to what oath was actually administered and subscribed to by the Members of the Assembly, including the third respondent. The matter was then posted for hearing on January 28, 2003. The learned Government Pleader stated that he had "received no instructions". On behalf of the petitioner, it was submitted that the third respondent had already admitted the factual position. He had filed a petition for summoning the record so as to bring the true facts to the notice of the Court. Since the Government Pleader had been given no instructions, the Court may draw an inference in accordance with law. After hearing the learned Counsel for the parties, the Bench did not "consider it necessary to issue any further directions". The applications were closed.
12. These are broadly the pleadings of the parties and the sequence of events in the Court.
13. Mr. Sivan Madathil, learned Counsel for the petitioner, contended that Article 188 of the Constitution makes it incumbent on a person to subscribe to the oath in conformity with the form given in Schedule III. In case he does not believe in God, the person can make an affirmation. However, the form having been duly prescribed, no individual can change the form at his own will or pleasure. The person who has not taken the oath in conformity with the prescribed form is not entitled to claim that he has complied with Article 188. Thus, the consequence as envisaged under the law should follow.
14. The claim as made on behalf of the petitioner was controverted by Mr. Rama Singh, the learned Advocate General appearing on behalf of respondent No. 4. He submitted that the form as prescribed in Schedule III is not mandatory. A substantial compliance is sufficient. He added that the oath has to be taken 'according to the form' and not 'in the form'. In the present case, no prejudice has been caused to the petitioner. There is no violation of any constitutional duty by the State. Thus, no ground for the issue of a mandamus or any other direction was made out.
15. Mr. Rajan Babu, learned Counsel for the third respondent submitted that even if it is assumed that there was some irregularity, the proceedings in the House are immune from challenge by virtue of the provision contained in Article 212. The Speaker and Members having raised no objection, the petition was not maintainable.
16. Mr. Radhakrishnan, who appeared for the 5th respondent viz. the Election Commission, stated that the oath taken by the third respondent at the stage of filing the nomination paper was valid. It conforms to the prescribed form. Mr. Parameswaran appearing for the added respondent submitted that the provision contained in the Constitution is mandatory. The oath taken by the third respondent does not conform to the Constitutional mandate.
17. The two questions that arise for consideration are:
(1) Does the oath taken by the third respondent conform to the Constitutional mandate?
(2) Is the oath as taken by the third respondent immune from challenge by virtue of the provision contained in Article 212 of the Constitution?
18. Before proceeding to consider the respective contentions of the Counsel for the parties and the above issues, it may be mentioned that the Constitution makes a preambulatory promise of "liberty of thought, expression, belief, faith and worship". Secularism is a part of the basic structure of the Constitution. Article 25 guarantees freedom of conscience and free profession, practice and propagation of religion. Thus, every citizen has the liberty of faith and worship. He can profess, practice and propagate any religion, worship any God. A citizen can legitimately believe that Sree Narayana Guru whom he worships is the most valuable God. In fact, it appears that the great Guru was an embodiment of virtue and worthy of being worshipped. Any person can believe that he was eternal and infinite.
19. Another fact, which deserves mention, is that the Constitution is the primary law of the land. It has a special legal sanctity. Every Act and action has to conform to the parameters laid down in it. Every action whether legislative, executive or judicial has to conform to the constitutional mandate. Even the Statutes promulgated by the State Legislatures and the Parliament are tested on the touchstone of the Constitution. That which does not conform to a constitutional provision is liable to be annulled as being unconstitutional. It is in this background that the two questions as posed above have to be considered.
Regarding (1 ):
20. The first issue is - Does the oath taken by the third respondent conform to the constitutional mandate?
21. First, what is an oath? It has been differently described. In its ordinary sense, an oath is a "form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully". It is "a pledge by the person taking it that his attestation or promise is made under an immediate sense of responsibility to God". Similarly an affirmation in lieu of oath binds a person to live by what he undertakes. An oath of allegiance or loyalty means that a person "promises and binds himself to bear true allegiance to a particular sovereign or Government and to support its Constitution......" It has been differently described.
"In its broadest sense, an oath is any form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully. It involves the idea of calling in God to witness what is averred as truth, and it is supposed to be accompanied with an invocation of His vengeance, or a renunciation of His favour, in the event of falsehood. The word 'oath' has been construed to include "affirmation" in cases where, by law, an affirmation may be substituted for an oath.......... It has been said that an oath is a solemn adjuration to God to punish the affiant if he swears falsely. The sanction of the oath is a belief that the Supreme Being will punish falsehood, and whether that punishment is administered by remorse of conscience, or in any other mode in this work, or is reserved for the future state of being, cannot affect that question, for the sum of the matter is a belief that God is the avenger of falsehood."
Similarly, in 'CORPUS JURIS SECUNDUM':
"An oath is an appeal by a person to God to witness the truth of what he declares and an imprecation of divine punishment or vengeance on him if what he says is false. Its purpose is to secure the truth. In its broadest sense, an oath includes any form of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully, but it does not include those forms of attestation, which were not accompanied by an imprecation. It is sometimes defined as an outward pledge given by the person taking it that his attestation or promise is made under an immediate sense of his responsibility to God."
23. In England, various officers of State have to take the oath of allegiance and the official oath on assuming office. The Lord Chancellor is one of them. The oath of allegiance alone has to be taken by Members of both Houses of Parliament on taking their seats, and by certain other persons on entering office or acquiring a special status.
24. In India, the Constitution makes it obligatory for the holders of offices of responsibility to subscribe to the oath as prescribed. It provides for the administration of oath and lays down the forms of oath or affirmation for persons holding various constitutional offices. In the case of Political Offices, even those seeking election to the Parliament and State Legislatures have to subscribe to the oath or make an affirmation in the prescribed form at the time of fling the nomination paper. The forms of oath have been prescribed for the President, the Prime Minister, the Chief Justice of India, the Controller and Auditor General, the Members of Legislatures and the Judges etc. The obvious purpose is to ensure 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. The prescribed form does not impinge upon the liberty of faith or worship. Equally, it does not place any embargo on freedom of conscience or religion. On the contrary, it ensures equality and uniformity.
25. In the case of Members of Parliament, Article 99 provides as under:
"Article 99: Oath or affirmation by members.-Every Member of either House of Parliament shall, before taking his seat, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule."
In respect of the State Legislatures, a similar provision has been made in Article 188. The provision requires a Member of the Legislature to make and subscribe to an oath or make an affirmation before taking his seat in the Assembly. This oath has to be taken according to the form given in the Third Schedule. The said Schedule provides the following form in case of a Member of the State Legislature:
"I, A.B., having been elected (or nominated) a Member of the Legislative Assembly (or Legislative Council), 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, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter."
A perusal of the above form shows that an elected person can either subscribe an oath by swearing in the name of God or make a solemn affirmation. The Constitution clearly lays down that the oath has to be in the name of God. This form, as given in the Schedule was a matter of considerable debate in the Constituent Assembly. An extract would indicate the precise extent to which the matter was considered. In Volume 9 of the Constituent Assembly Debate, at page 713, the following speech appears:
"Shri. Mahavir Tyagi (United Provinces: General):- Sir, the small amendment which my friend Mr. Kamath has moved does not really warrant many speeches or many words for its support. The House has once discussed the question of the oath and it was decided that the oath should be taken in the name of God. There were my friends in the House who were really objecting to the oath being taken in the name of God, as they felt, 'After all, why bring in God' ? But in spite of their objection, the Constituent Assembly decided that for such persons as had faith in God, their oath must be the same as the one they usually take in their private life; and therefore the words, 'Swear in the name of God' were introduced, through an amendment. In the original draft, these words, 'Swear in the name of God' did not occur. These words were introduced at the express desire of the House. And so the oath was so shaped that the words 'Swear in the name of God' were over the line, and 'solemnly affirm' were under it:
Now, I am sorry that Dr. Ambedkar has come forward just with a little trick - the trick of a schoolboy, if he will pardon me. What he has done is, he has brought on the words 'solemnly affirm' above the line, and brought God under the line. If it is to be only a trick, I would not mind it. But we should see that the people do not get the idea that now, after Swaraj, God has gone under. So, I say since the Constituent Assembly has once decided in connection with the oath, these words, 'Swear in the name of God' should be above the line, and the other words must be below the line, and naturally too. I say naturally, because even in spite of the presence of some agnestics in India, there are still the vast majority of the masses who believe in God. And while we are making a Constitution here, the masses have not given us a blank cheque for us to do as we choose. We have to make the Constitution to the liking of the masses whose representatives we are. I submit, Sir, that Dr. Ambedkar, honest as he always is, is sometimes too clever, I would say. He has been quite honest and outspoken. So, I would request him not to do anything, which is against the wishes of the masses whom he represents. Why bring in a little personal prejudice, of his and make God go under the line? What is the significance of putting God under the line? What is God? Sir, God is Truth. So an oath taken in the name of God means that it is an oath in the name of Truth. And 'affirmation' as opposed to 'God' is expediency sublimated, so to speak. So the position is Truth versus 'expediency sublimated'. 'What is the need of taking an oath'? They say, a gentleman when he affirms a thing, it may be taken that he means it and shall act up to it. Similarly, one would argue that when a gentleman is elected to an office voluntarily, why need he even affirm? Why ask him for an affirmation? It must be taken for granted that he will remain a gentleman, and he will always be acting in a truthful manner. Then why have the formality of having any affirmation or oath. But when we are having the formality of an oath, I should be allowed to distinguish between an oath and an affirmation. As I have said, God is Truth and affirmation is 'expediency sublimated'. I desire expediency to go under the line and Truth to go up. I am afraid some of the honourable Members may not attach much importance to this question, and really I also admit that it is not a matter of very great importance. But Dr. Ambedkar seems to be playing pranks with us. Why does Dr. Ambedkar come out with an amendment when on a previous occasion the House had already given its decision on this question? Through his amendment, Dr. Ambedkar wants the whole House to commit itself to putting God under the line-But let us not forget that India gave the idea of God to the whole world. I have heard leaders of this House say that we must own the international numerals as against the Hindi numerals because the former were given to the world by India. Similarly, I submit that when the world was rotting in chaos, we gave it the idea and conception of Truth and God. India gave it to the world. Why then should God go down particularly when He has made us free? God primarily belongs to India. This is the land of God. So God should be above and affirmation below. Let us stick to the original draft. So I hope the House will not accept Dr. Ambedkar's amendment. There is no question of party discipline, let not the Members be afraid of any Whips. My appeal to them is to reject the amendment of Dr. Ambedkar. Let us not be doped by what agnostics say."
The above speech is symbolic of the extent to which the matter was considered. It shows that every detail was examined. It was after considerable thought and debate that the final draft was approved. The form of the oath itself was deliberated upon at length before the final form was given to it. Surely, the founding fathers were not quibbling over frivolities. They were considering matters of national importance. They were aware of the ground realities. They were conscious of the existing diversities. They were clearly wanting to ensure Unity.
26. Another fact, which deserves mention, is that Article 188 falls in Part VI, Chap.III of the Constitution. It is a part of a scheme governing the State Legislatures. Under Article 193, it has been, inter alia, provided that a person who "sits or votes as a Member of the Legislative Assembly.... of a State before he has complied with the requirements of Article 188... .shall be liable in respect of each day on which he so sits or votes to a penalty of Rs. 500 to be recovered as a debt due to the State". Thus, failure to comply with the requirements of Article 188 carries a recurring penalty. Article 194 deals with the privileges and immunities of the State Legislatures. Under Article 212, the validity of any proceedings in the Legislature cannot be questioned on the ground of an irregularity in the procedure.
27. The question that arises is - Did the third respondent take the oath in conformity with the Constitution? On behalf of the petitioner, it was contended that the form prescribed in the Constitution is mandatory. The non-compliance should visit the third respondent with the prescribed penalty. As against this, the counsel for the respondents contended that there was substantial compliance with the provisions of the Constitution. Nothing more was required to be done. Is it so?
28. One of the settled principles of law is that if a particular thing is required to be done in a particular way, it must be done in that way and no other. In the present case, the Constitution lays down the form. It gives a limited option. One can either subscribe to the oath, or make an affirmation. In case, the person chooses to take the oath he has to swear in the name of 'God'. None else. The Constitution does not permit any deviation or variation. For if any deviation were permitted, we may not know where to stop.
29. In this context, it deserves mention that India is a land of immense diversities. To some God is just a short form of Good. To some He is Allah, Bhagwan or Father. Some of us show reverence to even reptiles. Undoubtedly, every one of us has the freedom to act according to his faith. But only in our private lives. When a person occupies a constitutional position, he has to scrupulously abide by and observe the constitutional mandate. 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 religion. 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 only. But even the Buddhists, Jains and all others. By the very nature of his office, he is bound to inspire equal confidence and faith in the minds of all. The perception of God has to be as that of the entire people. Not personal. The society at large and not merely the 'Assembly' must get the confidence that the legislator shall work under the fear of 'God' as understood by all and not by him as An individual. This is essential to ensure that he represents everyone, irrespective of the caste or creed, faith or religion, it is meant to help in maintaining national harmony. It is intended to foster Unity in Diversity so as to preserve the integrity of India as a country. That is the apparent rationale and reason for the prescription of a 'Form' in the Constitution. And then, why does the provision provide for a penalty? For the reason that the Constitution does not permit any deviation. It insists upon a strict compliance. A deviation is not a mere irregularity. It is a manifest illegality. Thus, every person has to conform to the 'form' as prescribed. Otherwise, it has to be assumed that he has not taken the oath. He has not duly entered upon the office.
30. The people who are riot punctilious in the matter of ceremonial observances are likely to be neglectful in performing the higher duties of the office or observing the principles. It is to ensure this that the Constitution lays down the form. The oath is not a matter of formality. Nor a superstition. It is not a mere ritual. It is a constitutional mandate. Just as the seven steps around the holy fire or the tying of Mangal Sutra are essential to sanctify a marriage, the 'oath' to be valid, has to be subscribed in the prescribed form. The person has to demonstrate his 'allegiance' to the Constitution of India by scrupulously abiding by the form. Not by altering it. Otherwise, there would be no end to the modifications or variations. The purpose of prescribing the form is to induce a sense of subordination to the Constitution in men of all faiths. Not to submit to it is illegal and carries with it a recurring penalty. The constitutional boundaries cannot be crossed. The Constitution does not condone the violation.
31. Conventions in a society are the ripened result of a long and varied experience. Neglect of little things carries the danger of the big things being violated with impunity. The Constitution does not grant the liberty to vary the words of the oath to the holders of Constitutional Offices. It lays down the form. It has to be followed in letter and spirit.
32. It is in this background that the validity of the oath as subscribed by the third respondent has to be examined. It is the admitted that he had sworn in the name of 'Sree Narayana Guru' whom he worships as God. We have no doubt that the great Guru was an apostle of virtue. He had truly done good to the society. Yet, we think that the Constitution does not permit such variation of the prescribed form. The obvious reason, as already mentioned, is that if any variation were to be allowed, there would be no end to the variations. We shall have countless versions of God. This variety might provide the proverbial spice to some but has the danger of spelling the doom for all.
33. Mr. Ratna Singh, the learned Advocate General appearing for the State contended that a substantial compliance with the provisions is sufficient. The oath has to be taken 'according to the form'. The Constitution does not require that it must be 'in the form' as given in the Third Schedule. He relied upon various decisions. Thus, he submitted that there was no violation of the constitutional mandate. Is it so?
34. As noticed above, Article 188 of the Constitution makes it incumbent upon a Member of the Legislative Assembly to subscribe to the oath or affirmation before, taking his seat in the Legislature. As already noticed, the Constitution makers have even prescribed the form. The language is plain. It lays down the choice. Either swear in the name of God or make an affirmation. Nothing more. The words allow no variation. In fact, the violation of the provision results in liability to pay penalty at the rate of Rs. 500 per day. The text and the context of the provision clearly show that the requirement is mandatory. It has to be followed. By all and every one without any exception. The form cannot be departed from.
35. Mr. Ratna Singh referred to the decision of their Lordships of the Supreme Court in V.R. Sutaria v. N.P. Bhanvadia (AIR 1970 SC 765) to contend that a substantial compliance is sufficient.
36. This was a case where there was a mis-print in the form of the oath. Their Lordships held that a mere mis-print in the form of the oath or "a mere inaccuracy in rendering the expression Legislative Assembly in any other Indian language, would not be fatal to the election of a candidate, if otherwise valid". This observation was made in the context of the peculiar facts. The candidate had "filed nomination paper for election to fill a seat in the Gujarat Legislative Assembly and in the form of oath in Gujarati, the word Legislative Assembly was translated as Rajya Sabha......" In this situation, it was held that the oath was in conformity with the form prescribed in Article 173(a) of the Constitution. Thus, the view taken by the High Court was affirmed. The issue as to whether or not a person was entitled to make a conscious departure from the prescribed form did not really fall for consideration before Their Lordships. In view of the factual position, it was observed that "the essential requirement of Article 173(a) of the Constitution for our present purpose is that in order to be qualified to be chosen to fill a seat-in the Legislature of a State, a person (i) must be a citizen of India; and (ii) must make and subscribe before a person duly authorised an oath or affirmation according to the form set out for the purpose in the Third Schedule". Their Lordships were further pleased to observe as under:
"11. The above cases are sufficient to show that non-compliance with the provisions of a statute or Constitution will not necessarily render a proceeding invalid if by considering its nature, its design and the consequences which follow from its non-observance one is not led to the conclusion that the Legislature or the Constitution-makers intended that there should be no departure from the strict words used.
12. In this case, as we have already noted, the essential requirement of Article 173 read with Form VII-A was that the person taking the oath or making the affirmation would bear true faith and allegiance to the Constitution and uphold the Sovereignty and integrity of India. The words, which precede this portion, are merely descriptive of the person and of his nomination as a candidate. It is reasonable to think that a mere mis-print in the form of the oath or a mere inaccuracy in rendering the expression "Legislative Assembly" in Gujarati would not be fatal to the election of candidate, if otherwise valid."
With respect, we think that the question that fell for the consideration of Their Lordships was entirely different from that arising in the present case. Still more, it was in view of the fact that there was only a mistake in translation that the above observations were made by Their Lordships. In our view, the Judgment is not an authority for the proposition that a person can swear by anyone and that he shall be deemed to have taken the oath as prescribed in the Constitution. Nor can it be said that a mere bona fide mistake in translation of the oath in one of the Indian languages is at par with a conscious decision to take oath in the name of one's 'Guru' in whom he has faith. The two situations are not similar. There is a vital difference, which cannot be ignored or overlooked. In fact, taking the oath in the prescribed form is a condition precedent for claiming any privilege as a member of the Legislature. Till then the person is not entitled to sit in the Legislature much less than participate in the proceedings or be entitled to claim the constitutional protection.
37. The Advocate General also placed reliance on the decision of the Supreme Court of the United States in West Virginia State Board of Education v. Barnette (87 Law Ed. 1628). He referred to the following observations:
"The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
If there is any fixed star in cur constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."
The above observations do not lend any credence to the contention as raised by the learned Counsel. What deserves notice is that the Court was considering the action of the State Board of Education in requiring the public school pupils to salute the national flag while reciting the pledge of allegiance. The violation provided for penalty of expulsion from the school. It entailed a liability of the pupil and the parents to be proceeded against for unlawful absence. This was held to be invading the sphere of intellectual spirit guaranteed under the Fourteenth Amendment of the Constitution. The Court had undoubtedly upheld "the right to differ". It was also observed that "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein". However, these observations, in our opinion, do not permit the constitutional aberrations to be overlooked. This is all the more so when the Constitution itself prescribes a penalty for violation. If a "purely personal attitude" in the matter of belief and faith were to be relevant, the Constitution would not have limited the choice to the two alternatives prescribed therein. The fact that it does so is a pointer towards the mandatory nature of the form prescribed in the Constitution.
38. Mr. Ratna Singh contended that the Article 188 does not require that the oath has to be taken "in the form" as prescribed in the Third Schedule. It only requires that the oath had to be taken "according to the form". He placed reliance on the decision of a Division Bench of the Madhya Bharat High Court in Anand Bihari v. Ram Sahay AIR 1952 MB 31). It is undoubtedly true that their Lordships have drawn a distinction as referred to by the learned Advocate General. However, it deserves mention that the Constitution has used both the expressions. To illustrate:- Article 159 deals with the oath to be taken by the Governor. It uses the expression "in the following form". It appears that both the expressions have been used interchangeably in the Constitution. No distinction has been made between the two. Otherwise, there can be no possible reason for the use of two different expressions in the Constitution.
39. Adherence to the form and procedure for oath has fallen for consideration in England. In The Attorney General v. Bradlaugh (1885 (XIV) QBD 667) it was observed by the House of Lords as under:
"A member of Parliament, who does not believe in the existence of a Supreme Being, and upon whom an oath has no binding effect as an oath but only as a solemn promise, is, owing to his want of religious belief, incapable by law of 'making and subscribing' the oath of allegiance appointed by the Parliamentary Oaths Act, 1866, Sections 1, 3, as amended by the Promissory Oaths Act, 1868; and if he takes his seat and votes as a member, although he has gone through the form of making and subscribing the oath appointed by those statutes, he will be liable upon an information at the suit of the Attorney General to the penalty imposed by the Parliamentary Oaths Act, 1866, Section 5.
Omichund v. Barker (1 Atkyns, 21; Willes, 538) followed and applied.
In order that the oath of allegiance imposed upon members of the House of Commons upon taking their seats by the Parliamentary Oaths Act, 1866, as amended by the Promissory Oaths Act, 1868, may be 'solemnly and publicly made and subscribed' within the meaning of Section 3 of the former statute, it must be taken by a member with the assent of the House according to the requirements, of the Standing Orders, and after he has been called upon by the Speaker to be sworn."
40. The member was held liable to pay the penalty. The observations clearly show that the form of oath is important. The procedure prescribed by the Parliament has to be followed. Otherwise, the member cannot be said to have been duly sworn in.
41. It was also contended that the alleged variation has not affected anybody's right. It has not affected the peace of the State. It has not been objected to by anybody.
42. The contention cannot be sustained. Factually, the petitioner has objected. He has even alleged that the 3rd respondent had made a promise to the people that in the event of his being elected, he will take the oath in the name of Sree Narayana Guru. It has been specifically pointed out that he had not made a departure from the prescribed form while filing the nomination paper. The suggestion was that the plea of faith was not correct. The third respondent was merely being faithful to a certain section of the society. Thus, it cannot be said that there was no objection. Secondly, even if nobody had objected, an invalid act would not become valid. Still further, a person holding a constitutional position cannot take umbrage behind the plea that the rights of others or that the peace of the province are not affected. He has to conform to the requirements of law. He cannot hurt the sentiments of others. He has to prove his allegiance to the Constitution by adhering to the 'Form'.
43. In view of the above, the first question is answered in favour of the petitioner. It is held that the oath taken by the third respondent does not conform to the constitutional mandate.
44. Now, the second question Viz.: "Is the oath as taken by the third respondent immune from challenge by virtue of the provision contained in Article 212 of the Constitution?" may be considered.
45. It was contended by the learned Counsel for the petitioner that the Speaker has been impleaded as respondent No. l to ascertain the factual position in respect of the oath taken by the third respondent. The notice was duly presented to him. He had refused to accept it. He has filed no reply. Thus, the averments in the petition should be deemed to have been admitted by the Speaker and the case be decided on that basis. It was further submitted that since the third respondent had not taken the oath in the prescribed form, he cannot claim any immunity.
46. It is undoubtedly correct that the proceedings of a Legislature cannot be questioned in a Court of Law on the ground of irregularity in procedure. However, the first issue is - Can the Court issue a notice to the Speaker or not? While considering the question of privileges of the Legislature, it has to be remembered that the Constitution of India is the prime law of the land. It creates the Legislature, the Executive and the Judiciary. Each organ has to function within the constitutional parameters. Even the legislation enacted by the Parliament or a State Legislature has to conform to the constitutional mandate. Otherwise, it is liable to be annulled as being unconstitutional. So far as the Speaker is concerned, it deserves notice that besides presiding over the proceedings in the Legislature, he discharges certain other functions too. Under Article 187, the Legislature has to have a separate secretarial staff. The Governor can frame rules governing the recruitment and other conditions of service of the staff in consultation with the Speaker. The validity of the rules may be challenged in a Court of Law. It may be alleged inter alia that the Speaker was not consulted. Would the Court be in a position to pronounce upon the validity of the rules without even giving a notice to the parties including the Speaker? The answer is "no". The reason is that no Court should decide any matter without hearing the parties concerned. It would be unfair to decide a matter without giving an adequate opportunity of hearing to all concerned. Of course, after the notice has been given, in accordance with law, it is for the party concerned to choose as to whether or not it wishes to respond. If the party decides not to appear, the Court is at liberty to proceed and consider the matter. It can draw such inferences as may be permissible in law.
47. In this context it may also be noticed that in the reply filed by the Government, it has been averred that the Judiciary "should not sit as a Court of appeal or revision over the rulings of the Speaker with respect to the proceedings of the House". There is no doubt about the position of law in this behalf. But it may only be mentioned that in a society governed by the rule of law, no man, howsoever high, is above the law. This rule has been recognized in every civil society for centuries. In the 13th century, Bracton in his treatise had written - "Quod Rex non debet esse sub homine, sed sub Deo et Lege". It means that the 'king should not be under man but under God and the law'. Thus, one may occupy any position, hold any office, he is never above the law of the land. He has to live by the law.
48. In our country, every constitutional organ discharges its constitutional duties. The Courts are sworn to 'uphold the Constitution and the laws'. Whenever there is violation of the Constitution, the Courts cannot be silent spectators. They are under a duty to intervene. Thus, the Courts have a commitment to the Constitution. Not to any constituency. The Courts have no vested interest. They are not wedded to any valuables. But only to the constitutional values. They are sworn to discharge their functions without fear or favour. They will continue to do so. However, the question is - Are the Courts debarred from examining the validity of the oath? Is the immunity to the proceedings of the Legislature absolute? Or does the immunity start only after the constitutional provision has been complied with?
49. The matter is not res integra. In the case reported in AIR 1965 SC 745, the Apex Court was considering a reference under Article 143 of the Constitution of India. In this matter, Their Lordships of the Supreme Court have observed as under in Para 59:
"Let us first take Article 226. This Article confers very wide powers on every High Court throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari, or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose. It is hardly necessary to emphasise that the language used by Article 226 in conferring power on the High Courts is very wide. Article 12 defines the 'State' as including the Legislature of such State, and so, prima facie, the power conferred on the High Court under Article 226 (1) can, in a proper case, be exercised even against the Legislature. If an application is made to the High Court for the issue of a writ of habeas corpus, it would not be competent to the House to raise a preliminary objection that the High Court has no jurisdiction to entertain the application because the detention is by an order of the House. Article 226(1) read by itself, does not seem to permit such a plea to be raised. Article 32 which deals with the power of this Court, puts the matter on a still higher pedestal; the right to move this Court by appropriate proceedings for the enforcement of the fundamental rights is itself a guaranteed fundamental right, and so, what we have said about Article 226(1) is still more true about Article 32(1)."
50. Even in this Court, the position of law has been considered. In Sudarsana Babu v. State of Kerala (1983 KLT 339) a learned Single Judge of this Court had the occasion to consider a matter. It was observed as under:
"In other words, officers and members of a Legislature cannot claim immunity when they exercise their power in a manner opposed to the Constitution. Article 226 of the Constitution confers power on the High Court to enforce fundamental rights and other rights. This power is not subject to Article 212. Therefore, when a citizen approaches the Court with a complaint that his constitutional rights are being invaded, the Court has the power to look into it even if the complaint pertains to a matter covered by Article 212."
This decision of the learned Single Judge was affirmed by a Full Bench of this Court in State of Kerala v. Sudarsana Babu (1983 KLT 764 (FB)). Thus, so far as this Court is concerned, it seems clearly settled that the constitutional immunity begins only after the constitutional requirement of taking oath in the prescribed form is shown to have been fulfilled. Only thereafter, the member is entitled to the freedom of speech and vote. Then, as observed in P.V. Narsimha Rao v. State (AIR 1998 SC 2120) even "the bribe takers... .have the protection of Article 105(2) and are not answerable in a Court of law for the alleged conspiracy and agreement". Not otherwise.
51. Thus, the Courts can intervene whenever and wherever there is a violation of the Constitution. Since the Speaker had administered the oath and was impleaded as the 1st respondent, the notice was issued to him. In the process, there was no violation of any law.
52. Still further, it is also clear that the immunity under Article 212 does not mean that the Court cannot examine the issue of the validity of the oath. Any Act or Law, which does not conform to the constitutional requirements, is unconstitutional. It is invalid and thus, liable to be annulled. The forms and ceremonies used in administering an oath are not a matter of discretion. A person is lawfully sworn in only if the person before whom the oath is taken has the power to administer it and if the oath conforms to the prescribed form. Not otherwise. The constitutional immunity commences only after compliance with the Constitution. Not by violation.
53. What is the position in the present case? As already observed, the 3rd respondent had subscribed to the oath as prescribed in the Schedule at the time of filing the nomination paper. Thereafter, he had taken the 'oath' in the name of Sree Narayana Guru at the time of his being sworn in as a Member of the Legislature. Why this change? The petitioner says that this change was not "due to an ignorance or mistake... .but was the part of the wilful, deliberate and planned attempt for" achieving political and religious gains. The oath was not in accordance with the Constitution. On the other hand, the 3rd respondent maintains that the Guru "must be deemed to have attained the status of a universal soul, i.e. God" and that the oath as subscribed by him conforms to the constitutional mandate. These contending claims regarding the observance or violation of the provisions of the Constitution can only be examined by the Court. The Constitution has not constituted any other forum.
Thus, the second question is also answered against the respondents.
54. In view of the above, it is held that:
1. An oath is a "form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully. It involves the idea of calling in God to witness what is averred as truth, and it is supposed to be accompanied with an invocation of His vengeance, or a renunciation of His favour, in the event of falsehood". It includes an affirmation.
2. It was after considerable thought and debate that the founding fathers had finalised the form of the oath as contained in the Constitution. They were conscious of the existing diversities. They knew that to some God is just a short form of Good. To some He is Allah, Bhagwan or Father. Some of us show reverence to even reptiles. They guaranteed that every one of us has the freedom to act according to his faith. But only in private lives. They postulated that when a person occupies a constitutional position, he has to scrupulously abide by and observe the constitutional mandate.
3. 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 Legislatures 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 religion. 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 only, but even the Buddhists, Jains and all others. 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 in maintaining national harmony. It is 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' of 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.
4. There is no doubt that Sree Narayana Guru was an apostle of virtue. He had truly done good to the society. The petitioner as well as a large number of other people may believe that the Guru is a God. They may worship him. Yet, it is clear that the Constitution does not permit a person elected to be a Member of the Legislature to vary the prescribed form of oath. The obvious reason, as already mentioned, is that if variation were to be allowed, there would be no end. We shall have countless versions of God. This variety might provide the proverbial spice to some but has the potential danger of spelling the doom of disintegration for all. The perception of God has to be as that of the entire people. Not personal. The society must get the confidence that the legislator shall work under the fear of 'God' as understood by all and not by him as an individual. Judged by this measure, it is clear that the 'Oath' as subscribed by the 3rd respondent does not conform to the prescribed form. Thus, he is liable to pay the penalty as prescribed under the Constitution. He cannot escape the liability. The competent authority has to recover the due amount from him.
5. The clear language of Article 226 shows that power conferred on the High Courts is very wide. Article 12 defines the "State" as including the Legislature of such State. The High Court's power of judicial review under Article 226 can be invoked by the citizen in a proper case when he alleges that there is violation of the constitutional mandate. This power can be invoked and exercised by the Court whenever it is alleged that the 'State', which includes the Legislature has acted in violation of the Constitution or any other law. The constitutional immunity under Article 2I2commences only after the Constitution has been complied with. Not by violating it. The Courts are under a duty to intervene whenever and wherever there is a violation of the constitutional mandate. Each Judge is under a duty to uphold the Constitution and the laws. He is sworn to do so by the primary law of the land.
Resultantly, the Writ Petition is allowed. It is he'd that the 3rd respondent had not taken the 'Oath' in accordance with the provisions of the Constitution. Thus, he was not entitled to sit and vote in the State Legislature and cannot do so till he is duly sworn in. He is also liable to pay a penalty at the rate of Rupees five hundred for each day that he has already sat or voted. The penalty shall also be leviable in future if he sits or votes in the Legislature till he takes the 'Oath' in the prescribed form. The amount has to be recovered from him 'as a debt due to the State'. In the circumstances of the case, the parties are left to bear their own costs.