By Rabia Mohamed Ismail Abdul Rahim, NUALS Kochi.

On the 18th day of May, 2018, B. S. Yeddyurappa was sworn in as the Chief Minister of Karnataka. What happened after is no secret. Having sworn in, Yeddyurappa was the Chief Minister on the day of the floor test. He was also the Chief Minister when he walked out while the National Anthem was being played.

Yes, undoubtedly, the provisions of the Prevention of Insults to National Honour Act, 1971 will apply to this situation. But I would like to analyse this situation in light of a different fact.

Every Chief Minister is considered to be sworn into his position only after he has taken the oath which is provided in Schedule 3 of the Indian Constitution. The oath to be taken by a Minister of the State is as follows:

“I, A.B., 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, that I will faithfully and conscientiously discharge my duties as the (Chief) Minister for the State of Karnataka and that I will do right to all manner of people in accordance with the Constitution and the law without fear or favour, affection or ill-will.”

Further, the Constitution states in the form of fundamental duties, that every citizen shall abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem. Any insult to the National Anthem will be considered to be a violation of Article 51A, that is, of the fundamental duties or in simple words, violation of the Constitution.

If the Chief Minister in his oath, pledges his true faith and allegiance to the Constitution, wouldn’t the act of walking out during the National Anthem, and thus violating the Constitution imply that he has not upheld his true faith and allegiance to the Constitution and hence has breached the oath taken by him while swearing in to the position of the Chief Minister?

There clearly is a violation of the oath by the Chief Minister in the present case (B.S. Yeddyurappa). Moreover, he has insulted the entire nation. So what happens next?

Although the breach of oath is not appreciated, there is no constitutional or criminal provision discussing it. The elaborate concept of an oath and consequences of its breach have only been discussed in case laws as follows:

In Haridasan Palayil v. The Speaker, it was held that obvious intention behind an 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. In case, the person chooses to take the oath, he has to swear in the name of ‘God’ and none else.

In K. Sukumaran v. Union of India, it was held that the breach of oath is not a disqualification constitutionally listed, and that the Court could not add to those disqualifications. Article 191 of the Indian Constitution discusses instances where the members of the Legislature can be disqualified from their membership. Since breach of oath is not one of the instances, disqualification will not be the result for the breach of an oath.

This was further reiterated in K. C. Chandy v. R. Balakrishna Pillai,wherein it was held that even though violation of an oath is not a disqualification specified in the Constitution, breach of oath was a breach of a fundamental code of conduct, however, it was also pointed out that breach of oath did not entail an automatic termination of the tenure but required an independent order by the appointing authority and that Court was not competent to issue such orders terminating the appointment of a Minister of a State, unless in two instances (1) When the Minister functions without the oath having been administered to him as provided in Article 164(3) and (2) when he continues in office, without being a member of the legislature, after six months.

In Hardwari Lal v. Ch. Bhajan Lal , it was held that,

Breach of such oath may raise complex political questions. They cannot be lightly treated. Looking to its broad sweep, the breach or violation of oath may be in respect of many matters, Nevertheless any violation thereof may not travel in the realm of disqualification as pointed out already. Malfunctioning of a Minister/ Chief Minister or by any Member of the Assembly would be primarily a matter of assessment and judgment at the political level. As pointed out in S.P. Gupta v. President of India the Courts do not have to embark upon an enquiry if there exists any breach of oath. The Governor certainly has the power under Article 192 in case of a Chief Minister to intervene and bring about conciliation or correction. The failure of the Chief Minister of a State or Governor in that behalf may attract Presidential action under Article 356 of the Constitution on his satisfaction that there is breakdown of the Constitutional machinery in the State. It is significant that the Constitution makes no express provision as to the consequences of a breach of oath by a Minister. In that event, as we have noted above, the only course to be adopted is as indicated under Article 192 of the Constitution

In D.Satyanarayana v. N.T. Ramamrao and Ors. while concurring with the view expressed in K.C. Chandy v. R. Balakrishna Pillai, refused to issue a writ of Quo-Warranto for removal of the Chief Minister while repelling the argument that he has forfeited his right to continue in office for having breached the oath on account of various allegations of misuse of the authority. When a similar petition was filed before the Madras High Court in Ramachandran v. M.G. Ramachandran, with a similar prayer for issuance of a writ of Quo-Warranto on the ground that he has committed the breach of the office and secrecy, that court, while relying on the K.C. Chandy, dismissed the writ petition.

It can be understood that there is no action which can be taken by the Courts in circumstances where there is a breach of oath by a Minister/Chief Minister. The discretion of taking action lies within the political chain.

Neither me nor you, as a citizen of India, can hold Yeddyurappa liable for breaching the oath taken by him. Ideally, a complaint to the Governor should initiate an action against the Chief Minister. All we can do is possibly complain to the Governor, who may or may not take any action. Since Yedyurappa has resigned from his office, the Governor could refrain from taking any action at all.

The irony is that the Chief Ministerial Oath is taken by him for the people. And Judiciary is the platform where the people can raise their grievances. Yet, the Court is not allowed to play any role if there has been a breach of the Oath.

Simply put, why is it that the Courts aren’t allowed to intervene in such cases? Isn’t the Oath, which is made, made to the Public and not the Governor? Does it not then become the right of a person from within the Country to challenge the breach of such Oath? Will this act of national insult just be ignored, thereby paving way for more office-holders to do as they please? Are these officeholders immune to the Fundamental Duties? Is the oath taking ceremony a mockery of the Constitution, of the Public?

Stricter actions against breach of Oath need to be brought about and Judicial intervention should be allowed in all such circumstances to enable a citizen, to challenge such an act. Action should be taken against the person breaching the oath, whether or not he holds office after such breach.