Case: RAM PAL SINGH Vs. THE STATE OF UTTAR PRADESH

Kshettra Panchayat and if their votes are disregarded, the No Confidence Motion would fail. The Allahabad High Court rejected the contention following the decisions mentioned above. 32. Learned counsel for the petitioner sought to make a distinction between the performance of legislative functions and non-legislative functions of an elected member of the Kshettra Panchayat. It was submitted that the Kshettra Panchayat does not have any legislative functions and its duties and responsibilities are circumscribed by Chapter IX of the Constitution. The submission of learned counsel may not be strictly correct since the Panchayat can be empowered by the State Legislature to levy, collect and appropriate taxes, duties, tolls and fees. However, without going into this issue, the broad intent of the decision of the Calcutta High Court, the Allahabad High Court as well as this Court is that if an elected member does not take the oath of office, he or she cannot participate in the proceedings of the Kshettra Panchayat, unless there is something to the contrary in a statute, which is not the case here. Consequently, there is no prohibition against an elected member from being a signatory to a No Confidence Motion. It is quite possible that in the absence of the signatory to the No Confidence Motion – an elected member – the No Confidence Motion might get defeated in the Panchayat due to his or her inability to vote, but that is not relevant for our purposes. Sanctity of oath of office 33. The case law that has emerged over the years suggests that subscribing to the oath of office is not being taken very seriously. It must be appreciated that taking the oath of office is not a mere ritual but there is a degree of seriousness and sanctity attached to it. Different laws provide different consequences (some quite mild) for not taking the oath of office. We have already referred to the Adhiniyam and the Rules. We are of opinion that since subscribing to the oath of office is a solemn occasion, failure to do so ought to result in serious consequences, such as the seat being declared vacant after a specified time. In fact, Section 40 of the Tamil Nadu Panchayat Act, 1994 provides in Section 40 as follows: 40. Oath or affirmation to be made by members - (1) Notwithstanding anything contained in the Oaths Act, 1969 (Central Act X of 1969), every person who is elected to be a member or who becomes a member shall, before taking his seat, make, at a meeting of the Panchayat an oath or affirmation in the following form, namely:- I, A.B, having been elected a member/having become a member of this Village Panchayat/Panchayat Union Council/District Panchayat 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. (2) Any person who, having been elected to be a member or who, having become a member, fails to make within three months of the date on which his term of office commences or at one of the first three meetings held after the said date, whichever is later, the oath or affirmation laid down in sub-section (1), shall cease to hold his office and his seat shall be deemed to have become vacant. (3) Any person who has been elected to be a member or who has become a member shall not take his seat at meeting of the Panchayat or do any act as such member unless he has made the oath or affirmation as laid down in sub-section (1). (4) Notwithstanding anything contained in sub-section (3), the President or the Chairman of a Panchayat or the member of a Committee constituted under this Act, who has not made the oath or affirmation as a member, shall be entitled to act as such President, Chairman or member provided he makes the oath or affirmation and takes his seat at the first meeting of the Panchayat which he attends within two months after he is elected or appointed as, or becomes entitled to exercise the functions of the President, Chairman or member, as the case may be. 34. We are of the view that elected representatives be visited with serious consequences for not taking the oath of office within a specified time, mainly because even the Constitution attaches a great degree of solemnity to the oath of office. For example, Article 60 of the Constitution provides that before entering upon his office, the President shall make and subscribe the oath or affirmation. Similarly, Article 69 of the Constitution requires the Vice President to make and subscribe the oath or affirmation before entering upon his office. 35. Article 84 of the Constitution requires that a person shall not be qualified to be chosen to fill a seat in Parliament unless he makes and subscribes the oath or affirmation according to the forms set out for the purpose in the Third Schedule. We have already referred to the oath or affirmation by a member of the Legislative Assembly or the Legislative Council as required by Article 188 of the Constitution. If the Constitution has attached importance to the oath of office, why cannot legislations provide something similar to what Tamil Nadu has? 36. Additionally, it should be appreciated that apart from requiring elected representatives of a Panchayat attaching seriousness to taking the oath of office, an unimpeachable record of the elected representatives taking the oath of office should be maintained by the concerned officials of the State Government. Unless the sanctity of the oath of office is appreciated and appropriate documentation kept, we will continue to be faced with situations such as the present where a dispute is raised whether an elected member of a body has taken the oath of office. Such controversies are completely avoidable. Conclusion

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]10. In view of this serious factual controversy, we are of opinion that it would be appropriate to rely on the counter affidavit filed by the State. It is stated in the counter affidavit that in a communication of 12th January, 2018 issued by the office of the Block Development Officer, it is stated that all 63 members of the Kshettra Panchayat had taken the oath of office on 18th March, 201620. We find a fallacy and a dichotomy in the submission of learned counsel for the petitioner with regard to the status of elected members of the Kshettra Panchayat who have allegedly not taken the oath of office24. To get over this fallacy and dichotomy, it was submitted by learned counsel for the petitioner that it would be strange and illogical that the 13 elected members could sign the No Confidence Motion even though they had not taken the oath of office but they could not actually vote in the Panchayat because they were not entitled to a seat in the Panchayat, not having taken the oath of office.While this may appear to be illogical and irrational, there is no challenge to the provisions of the Adhiniyam and we must proceed on the basis that if the requisition for the No Confidence Motion was numerically valid, the discussion on that would take place in the Panchayat and the requisition would meet its appropriate fate. We, therefore, reject this contention of the learned counsel for the petitionerof the Kshettra Panchayat who were alleged not to have taken oath of office on 18th March, 2018. Consequently, the No Confidence Motion against the petitioner was a numerically valid requisition having been signed by more than 50% of the elected members of the Kshettra Panchayat26. The legal position having been settled for over 100 years, we see no dire necessity or any necessity at all ofg the law laid downIn this case a somewhat similar situation as in the present proceedings before us had arisen. A No Confidence Motion was signed and carried against the Block Pramukh. Challenging this, the submission of the Block Pramukh was that 11 elected members of the Kshettra Panchayat had not subscribed to the oath of office after being elected. Therefore, they were ineligible to participate in the meeting convened for the No Confidence Motion and to cast their vote. It was contented that these 11 elected members could not be treated as members of the Kshettra Panchayat and if their votes are disregarded, the No Confidence Motion would fail. The Allahabad High Court rejected the contention following the decisions mentioned above32. Learned counsel for the petitioner sought to make a distinction between the performance of legislative functions ande functions of an elected member of the Kshettra Panchayat. It was submitted that the Kshettra Panchayat does not have any legislative functions and its duties and responsibilities are circumscribed by Chapter IX of the Constitution. The submission of learned counsel may not be strictly correct since the Panchayat can be empowered by the State Legislature to levy, collect and appropriate taxes, duties, tolls and fees. However, without going into this issue, the broad intent of the decision of the Calcutta High Court, the Allahabad High Court as well as this Courtis that if an elected member does not take the oath of office, he or she cannot participate in the proceedings of the Kshettra Panchayat, unless there is something to the contrary in a statute, which is not the case here. Consequently, there is no prohibition against an elected member from being a signatory to a No Confidence Motion. It is quite possible that in the absence of the signatory to the No Confidence Motion – an elected member – the No Confidence Motion might get defeated in the Panchayat due to his or her inability to vote, but that is not relevant for our purposesSanctity of oath of office33. The case law that has emerged over the years suggests that subscribing to the oath of office is not being taken very seriously. It must be appreciated that taking the oath of office is not a mere ritual but there is a degree of seriousness and sanctity attached to it. Different laws provide different consequences (some quite mild) for not taking the oath of office. We have already referred to the Adhiniyam and the Rules. We are of opinion that since subscribing to the oath of office is a solemn occasion, failure to do so ought to result in serious consequences, such as the seat being declared vacant after a specified time. In fact, Section 40 of the Tamil Nadu Panchayat Act, 1994 provides in Section 40 as follows:40. Oath or affirmation to be made by memberser or who becomes a member shall, before taking his seat, make, at a meeting of the Panchayat an oath or affirmation in the following form, namely:I, A.B, having been elected a member/having become a member of this Village Panchayat/Panchayat Union Council/District Panchayat 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.(2) Any person who, having been elected to be a member or who, having become a member, fails to make within three months of the date on which his term of office commences or at one of the first three meetings held after the said date, whichever is later, the oath or affirmation laid down inn (1), shall cease to hold his office and his seat shall be deemed to have become vacant.(3) Any person who has been elected to be a member or who has become a member shall not take his seat at meeting of the Panchayat or do any act as such member unless he has made the oath or affirmation as laid down in(4) Notwithstanding anything contained inn (3), the President or the Chairman of a Panchayat or the member of a Committee constituted under this Act, who has not made the oath or affirmation as a member, shall be entitled to act as such President, Chairman or member provided he makes the oath or affirmation and takes his seat at the first meeting of the Panchayat which he attends within two months after he is elected or appointed as, or becomes entitled to exercise the functions of the President, Chairman or member, as the case may besolemnity to the oath of office. For example, Article 60 of the Constitution provides that before entering upon his office, the President shall make and subscribe the oath or affirmation. Similarly, Article 69 of the Constitution requires the Vice President to make and subscribe the oath or affirmation before entering upon his office35. Article 84 of the Constitution requires that a person shall not be qualified to be chosen to fill a seat in Parliament unless he makes and subscribes the oath or affirmation according to the forms set out for the purpose in the Third Schedule. We have already referred to the oath or affirmation by a member of the Legislative Assembly or the Legislative Council as required by Article 188 of the Constitution. If the Constitution has attached importance to the oath of office, why cannot legislations provide something similar to what Tamil Nadu has?