Law

As Koshyari and Supriyo Violate Their Oaths With Impunity, the Grey Areas in the Law Need Fixing

A writ of quo warranto does not lie for violation of oaths, the courts have held in many cases, leaving no remedy, if the President who appointed both takes no action.

Maharashtra governor Bhagat Singh Koshyari and Union Minister of State for Environment, Forests and Climate Change, Babul Supriyo are both prima facie guilty of violating the oath they have taken before assuming their offices. But an aggrieved citizen will have no judicial remedy, as they can be removed only by the appointing authority.

Koshyari, in a letter to the Maharashtra chief minister, Uddhav Thackeray, urging him to open religious places of worship, closed as part of the lockdown measures to contain the spread of coronavirus, mocked him asking if he had “turned secular”.

The comment, made in an official letter, cannot be disowned, and therefore, the governor has to take responsibility for violating the oath he took as the governor under Article 159 of the constitution, to preserve, protect and defend the constitution and the law.

In S.R.Bommai v Union of India, a nine-judge bench of the Supreme Court has held that secularism is a basic feature of our constitution. The bench had cited India’s first prime minister, Jawaharlal Nehru as stating during the constituent assembly debates that secularism was an ideal to be achieved and that establishment of a secular state was an act of faith, above all for the majority community because they will have to show that they can behave towards others in an onerous, fair and just way.

Justice K.Ramaswamy, in his concurring judgment in S.R.Bommai, held: “The concept of the secular State is, therefore, essential for successful working of the democratic form of Government.”  In para 182, he observed: “Making of nation State involves secularization of society and culture.  Secularism operates as a bridge to cross over from tradition to modernity.  The Indian State opted this path for universal tolerance due to its historical and cultural background and multi-religious faiths”.

In S.R. Bommai, the Supreme Court upheld the dismissal of BJP-led governments in Madhya Pradesh, Rajasthan, and Uttar Pradesh because they could not be trusted to carry on the governance of the state in accordance with the provisions of the constitution.

Also read: President’s Rule in Maharashtra: How Constitutional were Governor Koshyari’s Actions?

“The Ministers in the Ministries concerned exhorted people to join kar seva in Ayodhya on December 6, 1992 and Ministers had given public send-off to the kar sevaks and had also welcomed them on their return after the destruction of the mosque….If, therefore, the President had acted on the aforesaid “credentials” of the Ministries in these States which had unforeseen and imponderable cascading consequences, it can hardly be argued that there was no material before him to come to the conclusion that the Governments in the three States could not be carried on in accordance with the provisions of the Constitution”, Justice P.B. Sawant held in his separate opinion in Paragraph 89.

If the dismissal of three state governments, in the wake of the demolition of Babri Masjid in December 1992 is justified, because they could not be trusted to uphold secularism, can the governor of a state, who mocks at secularism, be trusted to discharge his functions according to the oath he had taken to defend the constitution, and its basic feature, the secularism?

The curious case of Babul Supriyo

If the Maharashtra governor left none in doubt about how he violated his oath by his own statement in an official letter – which he has not yet withdrawn – a high court clearly found prima facie evidence of a member of parliament and now a minister of state in the Modi government of having violated the oath he has taken, back as an MP in 2017.

Justice Bibek Chaudhuri of Calcutta high court in Babul Supriyo v State of West Bengal, found Supriyo prima facie guilty of violating his solemn oath he had taken as a member of parliament, to bear faith and allegiance to the constitution (under the third schedule of the constitution).

Justice Chaudhuri’s finding was with reference to Supriyo making a defamatory statement to Mahua Moitra, then a member of the West Bengal legislative assembly, in 2017 in the course of a television debate on NDTV.   During the debate when Moitra was opposing Supriyo’s contention, he commented whether she was drunk. Although Barkha Dutt, the anchor, reprimanded Supriyo for his personal remark against her, Moitra herself could not protest against the defamatory remark made by Supriyo at the end of the debate. Therefore, she lodged a First Information Report against Supriyo before the officer-in-charge, Alipore Police Station, West Bengal under Section 509 of the Indian Penal Code. After the charge-sheet was filed in the case, and a warrant of arrest issued against Supriyo, he sought quashing of the charge-sheet.

“By making such defamatory statement to a woman, the petitioner prima facie, not only humiliated dignity and honour of a woman, but also violated his constitutional oath,” Justice Chaudhuri concluded. The high court, however, held that the charge-sheet against Supriyo did not disclose commission of any offence under Section 509 IPC and quashed it.

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The high court observed nevertheless:

“It is expected from a representative of the people that he must be courteous in his behaviour, dignified in his manners and cautious on his words spoken by him….It is the Constitutional mandate under Fundamental Rights, Fundamental Duties and Directive Principles of state policy that dignity of woman must be protected and freedom of speech and expression enshrined in Article 19(1)(a) is subject to reasonable restrictions and one of such restrictions is penal provision against defamation.”

While refusing to accept Supriyo’s plea that his statement made in the course of the television debate was an accidental slip of words, not intended to defame Moitra, the high court, however, expressed its inability to direct the trial court to take cognizance of offence against him under Section 500 of the IPC, which is a non-cognizable offence.  The magistrate can take cognizance of the offence only upon receiving a complaint by a person who is aggrieved.

The high court, relying on Supreme Court’s decision in S.Khushboo v Kanniammal and others, held that no court shall take cognizance of an offence under Section 500 of IPC except upon a complaint made by some person aggrieved by the offence, in writing before the magistrate. As there was no such complaint in this case, the high court found no alternative but to quash the charge-sheet against Supriyo, as the police did not take permission of the jurisdictional magistrate to investigate the alleged offence.

The grey area 

In a recent case, B.Radhakrishna Menon v State of Kerala and Others, the Kerala high court dismissed a writ petition filed by the BJP leader seeking the ouster of Kerala State Women’s Commission Chairperson, M.C.Josephine from the post for allegedly violating the oath taken by her, and imposed a fine of Rs 10,000 on the petitioner.

The facts of this case are relevant. Josephine had claimed that the commission has taken action in cases against the ruling CPI(M) leaders in an impartial manner, and her party was also functioning like a court and a police station. Her remark was interpreted as being against her constitutional duty to perform the commission’s functions impartially.

The Kerala High Court. Credit: Wikimedia Commons

The Kerala High Court. Photo: Wikimedia Commons

The questions which the court considered were whether there is any violation, and even if there is violation of oath, who is the authority to take action and whether writ of quo warranto will lie.

The court explained thus: “Impropriety of a statement by the Minister is non-justiciable. Violation of oath is different from impropriety. In any event, a writ of quo warranto cannot be issued on the ground of impropriety and, in any view, for the impropriety in the conduct of a Minister writ of quo warranto will be issued by the court sparingly in very special circumstances.   It is a discretionary remedy.

Also read: The Shaky Scales of Fairness in Contempt Cases of Justice Karnan and Prashant Bhushan

Even assuming that there is a violation of oath, a full bench of the Kerala high court in K.C.Chandy v R.Balakrishna Pillai (1985) held that quo warranto cannot be issued in such a situation. The court held that breach of oath is different from the absence of oath and if there is a breach of oath, action has to be exercised by the appointing authority under the constitution.

In the absence of any pleading and proof, Josephine cannot be said to be lacking in qualification, for the office of a chairperson, the high court held. The high court observed: “Supreme Court has deprecated the practice of entertaining a public interest writ petition solely on newspaper reports. Therefore, reliance placed on the newspaper reports that the 2nd respondent (Josephine) has committed breach of oath of office, cannot be accepted. Even taking it for granted that there is a breach of oath of office, in the light of the decisions considered, it would not be a cause for issuing a writ of quo warranto.”

In R.Govindaraj Chezhian v M.Karunanidhi and Others (1997), Justice E. Padmanabhan of the Madras high court, relying on Ramachandran v M.G.Ramachandran, CM held that question as to whether there was breach of oath of office by a minister was outside judicial review under Article 226 of the constitution and that writ of quo warranto could not be issued –  once office was held under valid election and continuance depends upon the pleasure doctrine.

In this case, the then chief minister, late M.Karunanidhi, made a public statement critical of the conduct of one of his own ministers and some ruling party MLAs in participating in the fire walk ceremony of a temple, calling it barbaric, and uncivilised  and sought their apology. The petitioner claimed that the chief minister violated his oath taken under Article 164, and infringed fundamental rights under Articles 25 and 26. The high court dismissed the petition on the ground that quo warranto does not lie on the basis of allegation of violation of oath. Secondly, the petitioner was not successful in placing any proof or material in support of his contention that the fire walk constituted an essential part of the religious practice, so as to claim protection under Articles 25 and 26 of the constitution, the high court held.

What the case law tells us is that the courts have considered the  issue of violation of oath by public servants as serious, but held that the remedy perhaps lies with those who appointed them in the first place. In very special circumstances of oath violation, courts can issue quo warranto, but the discretionary remedy can be availed of only when someone approaches the court. So far, both Koshyari and Supriyo have been lucky that no Public Interest Litigants have approached the courts seeking issue of quo warranto against them.  If some one does, it could provide an opportunity to test the law.