The supreme court, in recent judgment of Ram Pal Singh vs. State of U.P. & Ors., under the civil appellate jurisdiction, Justice Madan B Lokur, suggested that member of legislative assembly or local body should face serious consequences, if, in case, elected representatives had not subscribed for not taking oath of office, within a specified time period.
In the case, the elections were held in Kshettra Panchayat, Jasrana, and District Ferozabad (U.P.) under the provision of Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961.
The main issue raised was the Adhiniyam did not define the expression ‘elected member’ and adverse consequence of not taking the oath of office, provided in rule 3(3).
In this, court opined that it should be appreciated that apart from attaining seriousness of taking the oath of office, an impeachable record of the elected representatives taking the oath should be maintainable by the concerned officials of the state government.
The court, in the controversy whether some of the members of a Panchayat in Uttar Pradesh had taken oath of office or not, held, “In the view of the factual conclusions that we arrived at as we as the law of subject, we have no hesitation in holding non-confidence motion against the petitioner, elected as member of Kshettra Panchayat and hence other 13 signatories were entitled to sign the motion.”
Justice Madan observed that there would be no prohibition against an elected member from being a signatory to a no-confidence motion since the only consequence is that of the member does not make or subscribe the oath or affirmation, then he or she cannot take the seat in the Panchayat.
The court opined that since subscribing to an oath of office is a solemn occasion, failure to do so ought to result in serious consequences, such as seat being declared vacant after a specified time. Also, elected representatives be visited with serious consequences for not taking oath of office within a specified time, mainly because even a constitution attaches a great degree of solemnity to oath of office.
However, Justice Deepak Gupta, agreed with the dismissal of petition by Justice Lokur, opined that Rule 3 of Adhiniyams indicates that member must subscribe to the oath he can take part in the sitting of the Panchayat. No doubt, an elected member continues to be member because no qualification has been provided for not taking oath, but the seminal issue is whether such member can take part in the proceedings of the Panchayat.
Referring to the case, in Bhupendra Nath Basu vs. Ranjit Singh, quo warranto was being entertained and found that mayor had been duly elected but had not subscribed to the oath and hence had to usurp the power of mayor.
Another case referred was, Pashupati Nath Sukul vs. Nem Chandra Jain & Ors, where the court issued a notification requiring the elected members to take an oath under article 188 of the constitution.
Justice Deepak Gupta observed, “It is obvious that a member who is elected to a house, does not cease to be a member only because he had not subscribed to the oath unless there is a specific provision in this regard. Also, it is apparent that such elected member who has not taken oath can only take part in those proceedings which are not proceedings of the house. An elected member who has not taken oath, cannot move and be a signatory to a no confidence motion.”
On the aspect of the sanctity of an oath, Justice Gupta said: “Various articles of the Constitution of India and various other laws provide that persons holding public office must subscribe to an oath of allegiance. This oath cannot be rendered meaningless and the Legislature would be well advised to provide consequences for not subscribing to such an oath of office. To avoid such controversy in future, it would also be advisable if the swearing-in/oath taking is video-graphed so that no such dispute arises in future.”