SBCWP NO.7893/07 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R KASHI PUROHIT V. THE STATE OF RAJASTHAN. S. B. CIVIL WRIT PETITION NO.7893/2007 Under Article 226 of the Constitution of India. DATE OF ORDER :::: 1st FEBRUARY, 2008. REPORTABLE PRESENT HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Abhinav Sharma, for Petitioner. **** BY THE COURT: Kashi Purohit, a resident of Jaipur, claiming himself to be a public spirited person, has approached this Court by filing the present writ petition, praying for a mandamus to be issued to the Governor of the State of Rajasthan, to refer the question of disqualification of Ministers of the State of Rajasthan and the Members of the Legislative Assembly referred to in paras 10 to 16 of the petition for having committed breach of the oath of their office. Earlier than approaching this Court, the petitioner had filed a petition before the Governor of the State of Rajasthan under Article 192 read with Articles 173 (a), 188 and 190 and SBCWP NO.7893/07 2 191 of the Constitution of India, inter alia, on the premises that the certain Ministers of his government, namely, Shri Kalu Lal Gurjar, M.L.A. & Minister of Development and Panchayati Raj; Shri Kanak Mal Katara, M.L.A. & Minister of Women and Child Development and Janjati Vikas; Dr.Kirori Lal Meena, M.L.A. & Minister for Food and Supplies, Shir Virendra Meena, M.L.A. & State Minister for Finance and members of Legislative Assembly, namely, Shri Ram Chandra Sarardhana, M.L.A.; Shri Prahlad Gunjal, M.L.A.; Shri Atar Singh Bhadana, M.L.A.; Shri Govind Singh Gurjar, M.L.A.; Shri Hargyan Singh Gurjar, M.L.A.; Shri Nathu Singh Gurjar, M.L.A.; Shri Data Ram Gurjar, M.L.A.; Shir Raghuveer Meena, M.L.A.; Shri Murari Lal Meena, M.L.A.; Shri Hemraj Meena, M.L.A.; Shri Nandlal Meena, M.L.A.; Shri Madan Mohan Singhal, M.L.A.; Smt.Divya Singh, M.L.A. and Shri Kanhaiya Lal Meena, M.L.A. be declared disqualified for holding such office/s for having committed breach of the oath of office which they subscribed while taking oath as such, in view of the provisions contained in Article 191 of the Constitution of India, as, according to the petitioner, they have lost faith reposed in them SBCWP NO.7893/07 3 by their constituencies. It was further prayed that their respective assembly constituencies should be declared as vacant and the Election Commission be directed to conduct fresh elections therefor. According to the petitioner, India being a secular country, the spirit of equal respect for all religions and castes by the members of the Legislative Assembly, is the basic feature of its Constitution. This basic feature finds its pragmatic position in the form of Article 173 and 188 of the Constitution of India read with preamble of the Constitution and the form of oath prescribed in its Schedule III which is administered to the Members of the Legislative Assembly and the Ministers. It is contended that a citizen casts his vote believing that the candidates offering their candidature at the election to the office of Member of the Legislative Assembly will show no favour or affection to any caste, creed or religion, nor will they have any inclination for or ill-will against, any particular caste, creed or religion. This being the picture depicted before a voter at SBCWP NO.7893/07 4 the time of elections, he opts to exercise his franchise of assigning the authority in a particular candidate to hold this office of public nature. Sole object, intention and rationale behind and reasons for the prescription of a form of the oath in the Constitution is to foster unity in diversity so as to preserve the integrity of India by making the elected representatives to subscribe to the oath of allegiance to the Constitution and to uphold sovereignty and integrity of the country as a Member of the Legislative Assembly or the Parliament. He is the spokesman of all the people belonging to his constituency and he must therefore stand for all, irrespective of their shades of faith and religion. He is the people's representative. He does not merely represent a particular caste. He is bound to inspire equal confidence in the minds of all, irrespective of their caste or creed, faith or religion, for he holds the office under an oath to maintain national harmony. According to the petitioner, the controversy began in the last week of May, 2007 when members of Gurjar community started agitation for their inclusion in the list of Scheduled Tribes at par with the others, in SBCWP NO.7893/07 5 particular, Meena community. This agitation became violent and the situation became sporadic when in order to have an edge of this caste politics the local M.L.As in their respective regions through public platforms joined hands in support of this blood-splitting agitation which set the State ablaze. They even went to the extent of tendering their resignation if the demand of their community is not fulfilled. Various statements have been attributed to the Ministers and M.L.As. named above so as to substantiate all this. According to the petitioner, speech delivered and statements given by them were inflammatory which resulted in arson, treason, violence, blood-shed and huge and irreparable loss to the national property. Petition submitted by the petitioner to the Governor of the State of Rajasthan, however, was not entertained and a communication dated 31st July, 2007 was addressed to the petitioner by the Principal Secretary to the Governor, informing him “that the issues raised in the petition are not covered as disqualification under Article 191 (1) of the Constitution” and, therefore, “any reference of the subject for the opinion of the SBCWP NO.7893/07 6 Election Commission under Article 192 does not appear warranted”. It was, therefore, conveyed that his petition has been filed. It is this communication which is under challenge in the present writ petition with the prayers referred to hereinabove. I have heard Shri Abhinav Sharma, learned counsel for the petitioner and perused cited case laws and the material forming part of the record. Shri Abhinav Sharma, learned counsel for the petitioner, has argued that whether or not, the act of the concerned Ministers and M.L.As. attracted disqualification under Article 191 of the Constitution of India was a question on which the Governor, on his own, could not take any decision without obtaining opinion of the Election Commission as provided for by Article 192 (2) of the Constitution of India. It was argued that the Governor in so doing, has usurped the jurisdiction which is the exclusive domain of the Election Commission of India. It was for the Election Commission to determine as to whether the persons concerned have disqualified themselves to continue SBCWP NO.7893/07 7 as Members of the Legislative Assembly and/or Minister. The Governor by not referring the matter for the opinion of the Election Commission has exceeded his jurisdiction. Learned counsel, in support of his arguments, has relied on the Constitution Bench judgment of the Supreme Court in Brundaban Nayak v. Election Commission (AIR 1965 SC 1892), especially, para 14 of the report and argued that the Supreme Court in that case held that any citizen is entitled to make a complaint to the Governor alleging that a Member of the Legislative Assembly has incurred one of the disqualifications mentioned in Article 191 (1) and should, therefore, vacate his seat. Whole object of democratic elections is to constitute legislative chambers composed of members who are entitled to that status and if any member forfeits that status by reason of a subsequent disqualification, it is in the interest of the Constituency which a member represents that the matter should be brought to the notice of the Governor and decided by him in accordance with the provisions of Article 192 (2). It was argued that the Governor SBCWP NO.7893/07 8 is mandatorily required to refer such a dispute to the Election Commission for its opinion and act accordingly. The Supreme Court in Brundavan Nayak's case (supra) repelled the contrary argument that every question need not be referred to by the Governor to the Election Commission and held that though it is conceivable that in some cases, complaints made to the Governor may be frivolous and fantastic, but if they are of such character, the Election Commission will find no difficulty in expressing its opinion that they should be rejected straightaway. Learned counsel further argued that in Brundaban Nayak, argument that the Governor has a right to hold an enquiry on his own, was specifically rejected in para 16 of the report where their Lordships held such contention to be not well-founded and further held that the decision on the question raised under Article 192 (1) is no doubt to be pronounced by the Governor, but that decision has to be in accordance with the opinion of the Election Commission. Object of this provision clearly is to leave it to the Election Commission to decide the matter, though the decision as such would formally be pronounced in the name of the SBCWP NO.7893/07 9 Governor. Shri Abhinav Sharma also referred to the judgment of the Supreme Court in Election Commission of India & Another v. Dr. Subramaniam Swamy and Another ([1996] 4 SCC 104) and argued that in that case too, the Supreme Court held that the Governor has no power to inquire into complaint made to him by any citizen and decision must be taken by him only after obtaining opinion of the Election Commission and not even by consulting the Council of Ministers. Thus, opinion of the Election Commission is decisive since the final order would be based solely on that opinion. Learned counsel, therefore, argued that obtaining opinion of the Election Commission is the sine qua non for any decision that the Governor might take on the petition received from a citizen. In the present case, however, the Governor of the State of Rajasthan has proceeded to take a view in the matter by arriving at the conclusion that none of the disqualifications contained in Article 191 (1) was attracted without obtaining any opinion from the Election Commission of India. The Governor has, thus, acted in a SBCWP NO.7893/07 10 wholly unconstitutional manner and contrary to the scheme of the Constitution thereby transgressing the powers conferred on him. Such a decision, being nullity in law, is liable to be quashed and set aside. Learned counsel also relied on the constitution bench judgment of the Supreme Court in Election Commission of India v. N.G. Ranga (AIR 1978 SC 1609) and argued that their Lordships in N.G. Ranga's case reiterated the same view which was propounded by the Supreme Court in Brundavan Nayak (Supra) by holding that the President was not only bound to obtain the opinion of the Election Commission of India before giving decision on the petition, but was also bound to act according to such opinion. Shri Abhinav Sharma, learned counsel for the petitioner, argued that above named Ministers and M.L.As. were administered the oath firstly under Article 173 (a) of the Constitution before the returning officer along with all other contesting candidates that they “will bear true faith and allegiance to the Constitution as by law established” and that they “will uphold the sovereignty and integrity of India”. Successful SBCWP NO.7893/07 11 candidates were administered oath under Article 188 of the Constitution so as to entitle them to hold the office of MLA and and thereafter such of those, who were appointed as Ministers by the Governor, were administered yet another oath that they “will uphold the sovereignty and integrity of India” and that they “will faithfully and conscientiously discharge” their duties as such Minister and that they “will do right to all manner of people in accordance with the Constitution and the law without fear or favour, affection or ill-will.” Learned counsel Shri Abhinav Sharma argued that these MLAs, MPs, and Ministers while taking part in the caste war during Gurjar – Meena agitation in the State by openly siding with the community to which they belong have committed breach of the oath as prescribed by Schedule III to the Constitution. Correctness of this allegation could be gone into only by the Election Commission of India. This was not open to the Governor to prejudge the issues and pronounce upon the same, one way or the other. SBCWP NO.7893/07 12 Learned counsel referred to the judgment of the Supreme Court in Hussain Khan v. S. Nijalingappa (AIR 1969 SC 1034) and argued that Article 173 (a) requires the oath or affirmation in accordance with the proforma set out in the Third Schedule to the Constitution of India which is meant to remove the “disqualification for being a candidate for election to the Legislature of the State”. In other words, the learned counsel wanted to convey that the candidates not subscribing to such oath would be disqualified to contest election and could not get elected to such office. In this connection, reference was also made to Haridasan Palayil v. The Speaker of 11th Kerala Legislative Assembly (AIR 2003 Kerala 328) in which it was held that obvious intention of the oath 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. Once elected, he is people's representative. He is not free to cater to the belief of a sect or section of the society. He does not represent any particular religion and now he is duty bound to inspire equal faith in the SBCWP NO.7893/07 13 minds of all. Learned counsel therefore submitted that the oath prescribed in Schedule III to the Constitution of India is the law in view of its Article 13 and breach thereof would be a disqualification under Article 191 (e) of the Constitution of India. Learned counsel lastly argued that not only the Governor cannot inquire into correctness of the allegations against the Ministers and the M.L.As., but even this Court cannot embark upon such an inquiry into the correctness of such allegations, which domain is exclusively reserved for the Election Commission of India. The Governor, therefore, has erred in law in transgressing that Constitutional limitations by taking that task upon himself and determining the correctness of the allegations. It is, therefore, prayed that the writ petition be allowed in terms of the prayers referred to above. Decision of this petition would largely depend upon the interpretation of Articles 191 and 192 of the Constitution of India which for the facility of reference are reproduced hereunder :- SBCWP NO.7893/07 14 “Article 191. Disqualifications for membership. - (1) A person shall be disqualified for being chosen as and for being, a member of the Legislative Assembly or Legislative Council of a State - (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder; (b) if he is of unsound mind and stands so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State; or under any acknowledgment of allegiance or adherence to a foreign state; (e) if he is so disqualified by or under any law made by the Parliament. Explanation - For the purposes of this clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State. (2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.” SBCWP NO.7893/07 15 “Article 192. Decision on questions as to disqualifications of members - (1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of article 191, the question shall be referred for the decision of the Governor and his decision shall be final. (2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.” 10th Schedule to the Constitution which was added by the Constitution (Fifty-Second Amendment) Act, 1985 provided for yet another category of disqualification and which is that in case a member of a House belonging to any political party has voluntarily given up his membership of such party or votes or abstains from voting in such House contrary to any direction issued by the said political party, without obtaining the prior permission of such party and such voting or abstention has not been condoned by such party within fifteen days thereof, he will be disqualified for being a member of the House. SBCWP NO.7893/07 16 While candidates seeking to contest the election to the Legislature of a State are required to subscribe to the oath given in proforma VII 'A' of third Schedule, the candidate who gets elected has to take the oath as prescribed by Proforma VII 'B' of third Schedule. A candidate for election to the Legislature of a State is required to swear or affirm that he “will 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”. Similar oath/affirmation is again taken/made by the candidate who has been elected before entering his office as a Member of the Legislature of a State. Similarly, a Minister in the State has to subscribe to the oath of office and secrecy as prescribed by proformas V and VI of the third schedule. In the oath of office, the Minister swears in the name of God/solemnly affirm that he “will faithfully and conscientiously discharge” his duties as a Minister and “will do right to all manner of people in accordance with the Constitution and the law without fear or favour, affection or ill-will”. SBCWP NO.7893/07 17 Question which arises for determination of this Court, therefore, is that even if the Court proceeds on the footing that the statements ascribed to various Ministers and different members of the Legislative Assembly, are assumed to be correct for the sake of argument, and even if they would have been proved in the inquiry that might have been held by the Election Commission, had any such a reference been made to it by the Governor of State, could that form the basis for declaring that they have incurred disqualification for being member of the Legislative Assembly by virtue of the provisions contained in Article 191 of the Constitution? This argument is founded on the premise that the above referred to Ministers and M.L.As, having subscribed to the oath that they “will bear true faith and allegiance to the Constitution and will uphold the sovereignty and integrity of India” and “will do right to all manners of people in accordance with the Constitution or law without fear or favour, affection or ill-will”, by openly displaying partisan approach in favour of the community to which they belong and against another SBCWP NO.7893/07 18 community to which they do not, have violated the oath of office they subscribed thereby attracting the disqualification prescribed in clause (e) of Article 191 (1) which, inter alia, provides that a person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly if he is so disqualified under any law made by the Parliament. Argument is that in view of Article 13 of the Constitution, the word “law” as mentioned in clause (e) supra, also includes the law contained in the body of the Constitution itself, namely, third Schedule, which being part thereof, the oath of office as contained therein shall also be construed as law, infraction of which would attract disqualification as envisaged by Article 191 of the Constitution. But this argument has to be examined with reference to the law made by the Parliament which occupies field on the subject, which is the Representation of the People Act, 1951 (hereinafter referred to as 'the Act of 1951'). Various disqualifications in the Act of 1951 are enumerated in Sections 8, 8-A, 9, 9-A and 10, 10-A. It is not in dispute that none of these provisions includes breach of oath by either the Minister or a Member of the Legislative SBCWP NO.7893/07 19 Assembly as one of the grounds on which he/she can be declared disqualified to continue in office. Thus, whether the Governor was mandatorily required to refer the question for opinion of the Election Commission in view of sub-article (2) of Article 191, even though the alleged breach of oath was not mentioned as one of the grounds for such disqualification either in sub-article (1) of Article 191 of the Constitution or in any of the Laws made by the Parliament, including the Representation of the People Act, 1951 is the core of the issue which calls for determination in this matter. Contention that the Governor had no option but to refer the matter for opinion of the Election Commission, is sought to be supported primarily from the ratio of the judgment of the constitution bench of the Supreme Court in Brundaban Nayak's case (supra) and also another constitution bench judgment in N.G.Ranga's case (Supra). While in Brundaban Nayak, Supreme Court was dealing with a matter where alleged disqualification was one under Section 7 (d) of the Act of 1951 which according to Article 191 (1) SBCWP NO.7893/07 20 (e) of the Constitution, disqualified the concerned person to continue as the member of the Legislative Assembly. It was with specific reference to the provisions contained in Section 7 of the Act of 1951 that the elected representative was sought to be disqualified to continue as Member of the Legislative Assembly. It is in that context that observations were made by the Supreme Court that complaint made to the Governor 'may be frivolous or fantastic, but if they are of such a character, the Election Commission will find no difficulty in expressing its opinion that they should be rejected straightaway'. But those observations cannot be read in support of a complaint where the alleged disqualification does not fall in any of the Clauses (a) to (e) of sub- article (1) of Article 191 or even in any of the provisions of the Act of 1951 or for that matter, any other law made by the Parliament. Observations of the Supreme Court in Brundaban Nayak that whenever a question arises as to subsequent disqualification of member of the Legislative Assembly, this has to be forwarded by the Governor to the Election Commission for its opinion and it is the Election Commission alone SBCWP NO.7893/07 21 which is competent to hold the inquiry, though the decision thereupon has to be pronounced by the Governor,has to be therefore understood in the context of the fact situation of that case. Similar observations of the Supreme Court in N.G. Ranga (Supra) that the President is bound to obtain the opinion of the Election Commission before giving a decision on the question were also made in the fact situation of that case where the specific allegation was that Shri N.G. Ranga who was declared elected to Lok Sabha, had suffered disqualification under Section 10-A of the Act of 1951. In Dr.Subramaniam Swamy's case (Supra), the allegation was that Ms. J. Jaylalitha, the then Chief Minister of Tamil Nadu, had incurred the disqualification for being a Member of the Legislative Assembly under Article 191 (1)(e) of the Constitution read with with Section 9-A of the Act of 1951 and in that context, it was observed by the Supreme Court that the decision on the question must be taken