A couple of weeks ago, the Supreme Court of India reserved its judgement over more than 30 petitions which have challenged the monumental changes made in the constitutional status of Jammu and Kashmir in 2019.
The marathon proceedings before the constitution bench comprising the Chief Justice of India and four senior-most judges of the apex court took 16 days in August and September 2023 to complete. Thanks to the pro-transparency approach adopted by the court, these proceedings like those of other matters heard by constitution benches were live-streamed. This is a welcome change from the not-too-distant era of sealed cover procedures. Recordings are preserved for posterity on YouTube.
Despite the fact that the court was only performing its constitutional duty in order to dispense justice, the immense levels of patience displayed and the bench’s willingness to hear all arguments and shades of opinion including some points presented by this author appearing as a last-minute intervenor, deserves admiration. The judgement of the court is eagerly awaited.
Demanding proof of a petitioner’s allegiance to the constitution
The last two days of the very educative proceedings were marred by a controversy that arose from certain utterances attributed to Mohammad Akbar Lone, one of the lead petitioners. He also happens to be a sitting member of parliament (MP). A petitioner NGO brought to the notice of the court some pro-Pakistani slogans allegedly raised by Lone when he was a member of the J&K legislative assembly, both on the floor of that House and elsewhere in public, a few years ago.
The bench insisted that the MP file an affidavit stating that he unconditionally accepts that J&K is an integral part of India and that he abides by and owes allegiance to the constitution of India.
His counsel Senior Advocate Kapil Sibal’s plea that the remarks had been expunged from the record of the J&K assembly debates and that that the MP had sworn an oath of allegiance to the constitution of India while entering the Lok Sabha did not cut much ice with the court.
The bench reasoned that when the MP invokes the jurisdiction of the court under Article 32 of the constitution, he is required to abide by and owe allegiance to the constitution like every other Indian. The bench also said that it was willing to hear the MP like all other petitioners from J&K who came before them as it is their duty, but he must file a one-page affidavit avowing his allegiance to the constitution and to the fact that J&K is an integral part of India because of the contents of the affidavit that has been submitted to it.
On the last day of the proceedings, the MP filed an affidavit avowing that he is a responsible and dutiful citizen of the Union of India and that he has exercised his right to approach the court through Article 32 of the constitution. He also reiterated the oath he took while being sworn in as an MP to preserve and uphold the provision of the constitution of India and to protect the territorial integrity of the nation. As objections were voiced to the affidavit’s contents that it did not contain an express disavowal of terrorism and separatism, the Court assured that it would analyse the affidavit later on.
I do not intend to question the wisdom of the court in dealing with the controversy. However, the solution prescribed by the court to end the controversy has far reaching implications for not just public servants such as MPs, MLAs, MLCs, but every occupant of public office who is required to swear an oath of allegiance to the constitution. This is what I would like to comment on with deep respect to the dignity and majesty of the court.
Oath-taking requirements under the law while contesting elections
First, let us examine the legal requirements for oath taking as laid down for MPs and state legislators. According to Article 84 of the constitution of India, any person who intends to contest elections to parliament must, first and foremost be a citizen of India. The minimum age limit to contest elections to the Lok Sabha is 25 years whereas one has to be at least 30 years old to contest elections for a Rajya Sabha seat. Next, the constitution requires such aspirants to subscribe an oath of allegiance to the constitution of India and uphold its sovereignty and integrity according to the format laid down in the Third Schedule of the constitution before any person authorised by the Election Commission of India.
Similarly, an MLA or MLC aspirant is also required to swear an oath or solemnly affirm allegiance to the constitution of India and commit to uphold its sovereignty and integrity, as per Article 173. A format for this oath is also set out in the Third Schedule.
According to the Handbook for Returning Officers published by the Election Commission, the format of this oath is required to be signed by the candidate at the time of filing the nomination papers. The authorised officer before whom this oath is made is required to hand over a certificate for the receipt of such oath, mentioning the date and hour at which the candidate swore the oath.
The text of these oaths implies that an aspirant to a seat in either parliament or a state legislature must swear an oath of allegiance to the constitution and commit to uphold India’s sovereignty and integrity first and foremost at the time of contesting the relevant elections. According to the Election Commission’s Handbook, the Returning Officer may reject a candidate’s nomination on the ground that the oath or affirmation is not made in accordance with the Constitution.
However, until October 31, 2019, the format of oath of allegiance applicable to an aspirant to a seat in J&K State Legislature was provided in the erstwhile J&K constitution. According to Section 51 of this document, an aspirant to a seat in the erstwhile J&K legislative assembly or the legislative council was required to be a permanent resident of J&K with minimum age qualifications similar to that prescribed for the membership of parliament. The aspirant was required to swear an oath or make an affirmation as laid down in the Fifth Schedule of the erstwhile J&K constitution before an officer authorised by the Election Commission. The J&K constitution did not provide for a separate election management body for conducting these elections.
The format of the oath or affirmation is reproduced below:
“I, A. B., having been nominated as a candidate to fill a seat in 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 the State as by law established and that I will uphold the sovereignty and integrity of India”
According to the Election Commission’s Handbook for Returning Officers, the nomination papers of a candidate for elections to the erstwhile J&K legislature could be rejected for not being accompanied by an oath/affirmation signed by him/her in the manner prescribed by it.
Some hasty readers might point out that the aforementioned format of oath does not mention the constitution of India and is therefore not adequate. Adopting such a position would be fallacious because the definitions clause contained in Section 2(1)(a) of the erstwhile J&K constitution clearly referred to and explained the “Constitution of India” as follows:
““Constitution of India” means the Constitution of India as applicable in relation to this State;…”
The phrase – “as applicable” obviously connoted the length, breadth, scope and extent of the applicability of the constitution of India as laid down under Article 370, until it was amended in 2019.
So, the phrase “Constitution of the State” must be understood as including all such parts of the constitution of India that were made applicable to J&K vide the presidential orders issued under Article 370(1) until 2019. Any other restrictive interpretation would not only be political in its approach but also mischievous in intent.
Oath-taking requirements under the law after winning elections
Article 99 of the constitution of India requires every elected or nominated member of parliament to subscribe an oath or make an affirmation before taking his/her seat in either House.
Article 188 of the constitution of India similarly requires every person elected or nominated to the state legislature to subscribe an oath or make an affirmation before taking his/her seat in either House. The format of the oath to be made before the governor of the state or a person authorised by him as provided in the Third Schedule is similar to the text reproduced above except in its reference to the name of the house of the state legislature.
In the case of the erstwhile J&K constitution, the requirement of subscribing an oath or making an affirmation by a newly elected MLA or MLC is provided in Section 64.
How many times has Lone taken the oath of allegiance
Now that we have clarity about the legal requirements for MPs and MLAs regarding the oath of allegiance to the constitution they need to take, it would be worthwhile to examine how many times Lone has officially subscribed to this oath till date.
The twin parliamentary websites publish the profile of siting and former members. According to the profile page of Lone, he was elected MP from Baramulla constituency, J&K in May 2019. So that would have required him to take the oath of allegiance to the constitution and to uphold the sovereignty and integrity of India twice, once at the time of filing nominations and then before taking his seat in the house.
Further, this profile page indicates that he was a member of the erstwhile J&K Legislative Assembly for three terms since the year 2002. So as each term would have required him to subscribe to the oath of allegiance to the constitution twice, he would have complied with this constitutional requirement six times more.
That makes it a total of eight times that he subscribed to the oath to the constitution since 2002.
That is not all. According to the Lok Sabha website, Lone also served as the Minister for Higher Education in the erstwhile state of J&K between 2013-14. Section 40 of the erstwhile constitution of J&K requires every minister to be administered an oath of office and secrecy by the governor before he/she enters office.
Without a doubt, Lone would have subscribed to this oath of allegiance to the constitution (which implies allegiance to the constitution of India as well) and committed himself to uphold the sovereignty and integrity of India before entering the office of minister in J&K.
So all included, Lone is publicly known to have sworn allegiance to the constitution and committed himself to uphold the sovereignty and integrity of India a total of nine times since 2002 until the day controversy arose before the Supreme Court while hearing the Article 370 matter.
From the recording of the constitution bench proceedings and later the transcript of the exchanges published by the Supreme Court, it appears that its attention was not drawn to eight out of the nine times Lone took the oath of allegiance and committed himself to protect the sovereignty and integrity of India.
In the course of the heated debate his counsel was able to recall only one occasion when he took such an oath i.e., before taking his seat in the Lok Sabha after being elected. Further, the fact that he had taken the oath of allegiance to the constitution at least twice after the 2018 utterances attributed to him also was not pointed out by his counsel or anybody else present in the court.
Questions that the controversy throws up
Be that as it may, it is difficult to label the Supreme Court’s instructions that Lone file an affidavit swearing allegiance to the constitution as a knee-jerk reaction because of the manner in which it was insisted upon. At the same time, given the nature of court proceedings, until a party formally submits the points of law and facts described in the pervious segment of this note, the court is not expected to take judicial notice of the same. Given the deadline stipulated for completing the proceedings on the 16th day, there was not enough time to draw the attention of the bench to these matters.
Experts in constitutional law and fundamental rights jurisprudence have pointed out that certain fundamental rights like the rights to equality, life and liberty and the right to approach the Supreme Court when these rights are breached by the actions or omissions of state functionaries are available to any person including non-citizens. They have opined that it would be undesirable if the Lone case sets a trend of insisting on non-citizens to swear allegiance to the constitution as a prerequisite before approaching the apex court for justice. I have little to add to this category of responses.
In my view the first question that the court’s manner of treating Lone throws up is what actions or omissions of an MP, MLA or MLC constitute a breach their oath of allegiance to the Constitution and to uphold the country’s sovereignty and territorial integrity. The constitution of India is silent on this issue. I strongly, believe that not only these elected representatives but we the citizens who elect them, have the right to know. I hope the court clarifies this matter at a not-too-distant date.
The second question that arises from the controversy is about the consequences that might arise from the breach of such oaths of allegiance and the remedial action that is required to be taken.
Will the submission of an affidavit swearing allegiance be adequate? Is it even necessary?
The constitution is silent on this issue as well. I am not even questioning the power of the Supreme Court to insist upon the filing of such an affidavit, like some legal experts have done. I am assuming that the plenary and implied powers of the court make such action permissible.
In the case of Lone, the court deemed it adequate to require him to submit an affidavit swearing allegiance to the constitution and India’s sovereignty and territorial integrity to prove his loyalty. If this is indeed a substantive remedial measure, did the swearing of the oath of allegiance before contesting elections to the Lok Sabha and thereafter while taking his seat in the House, not once but twice, not have a similar effect?
Or do such remedial measures become effective only when executed in response to a charge that casts doubt over a person’s allegiance to the Constitution and the country’s sovereignty? If this is the cause-effect relationship between the charge made and the expiatory action that must follow, does the swearing of such an oath before and after successfully contesting elections become a mere procedural formality with little relevance after the purpose is served? If this is the case, are not these procedures quite hollow and devoid of substance? What then is the true test of loyalty to the constitution and respect for the country’s sovereignty and territorial integrity?
The third question that arises as a corollary to the second one is whether only utterances such as that which constitute the basis of the current controversy are liable to be treated a breach of oath of allegiance? Or are there other kinds of speech, action or omission that may also qualify as breach of such an oath.
For example, when an MP or MLA spews forth hate speech targeting a particular community, does he/she also breach the oath of allegiance to the constitution in addition to committing a criminal offence? If so, what is the penitential action that he/she must take?
Does a Governor breach his oath of allegiance to the constitution by not using his/her powers to prevent a change in government through horse-trading of elected representatives? Under Article 159 of the constitution, governors also subscribe an oath to defend and protect the constitution. How are they to atone for such breaches? Does the immunity from prosecution guaranteed for governors for their actions, while holding office guaranteed under Article 361 of the constitution, come in the way of prescribing any remedial action?
When the police personnel stand inert watching blood-thirsty mobs that lynch crime suspects or rabidly communal mobs which commit rape, murder, mayhem and arson without raising a finger to quell such violence, are they breaching their oath of allegiance to the constitution to which they subscribed at the time of entering the service as per the civil service conduct rules applicable to them? Or when law enforcement agencies torture crimes suspects or witnesses to the point of maiming them or even causing death, is the oath of allegiance to the constitution breached? Prosecuting such cases is an uphill task, according to the experience of survivors of such atrocities or human rights defenders who help in their quest for justice. If and when such prosecutions are successful, will the accused personnel be required to take an oath of allegiance to the Constitution? If so, when? If human rights commissions award compensation to survivors which itself indicates that the complaints of such police misbehaviour are true, is the breach of the oath of allegiance to the constitution proven? If the personnel complained against are subsequently not prosecuted, will they be required to be swear another oath of allegiance?
The controversy witnessed during the last two days of the hearing in the Article 370 matter and the court’s response to the same have far reaching implications about the constitutionally appropriate conduct that is expected from the holders of public office. It is hoped that the Supreme Court will dwell on these matters at length by going beyond the facts and circumstances of this controversy.
Venkatesh Nayak is an advocate of transparency and history researcher who divides his time between New Delhi and Bengaluru.