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Person Occupying A Constitutional Position Must Take Oath In The Format Of Solemnly Affirm or In The Name Of God To Protect The Idea Of Secularism Enshrined In Constitution Of India

Preamble Without God

One of the last issues vigorously debated in the Constituent Assembly in October 1949 was the framing of the Preamble. B. R. Ambedkar proposed "We, the People of India " as the opening statement of the Preamble.

On the contrary, a few other members, including H. V Kamath, moved an amendment to the Preamble to include the words "In the name of God, We, the People of India". Kamath's proposal was opposed by several other members on the ground that a Preamble in the name of God would amount to the compulsion of faith and infringe the fundamental right of freedom of faith.

Calling for rejection of Kamath's amendment, Rohini Kumar Chaudhuri contented that if invocation in the name of God was to be held valid, then it should also be amended to "In the name of the Goddess". "We, who belong to the Sakthi cult, protest against invoking the name of God alone, completely ignoring the Goddess. If we bring in the name of God at all, we should bring in the name of the Goddess also," she argued.

Kamath's proposal was finally rejected by the Assembly, which stated that a collective view should not be imposed on any individual and that the Preamble assured liberty of thought, expression, belief and faith to every citizen. This engendered the birth of an agnostic Constitution of the World's largest Democracy.

Constitutional Provisions

Article 188 of the Constitution of India read with VII A & B to Third Schedule defines that every member of the Legislative Assembly or the Legislative Council of a State shall, before taking his seat, make and subscribe before the Governor, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.

What Is An Oath?

In its ordinary sense, an Oath is a "form of attestation by which a person signifies that he/she is bound in conscience to perform an act faithfully and truthfully". It is "a pledge by the person taking it that his/her attestation or promise is made under an immediate sense of responsibility to God". An Oath of allegiance or loyalty means that a person "promises and binds himself/herself to bear true allegiance to a particular sovereign or Government and to support its Constitution.

In its broadest sense, an Oath is any form of attestation by which a person signifies that he/she is bound in conscience to perform an act faithfully and truthfully. It involves the idea of calling in God to witness what is averred as truth, and it is supposed to be accompanied with an invocation of His vengeance, or a renunciation of His favour, in the event of falsehood. The word 'oath' has been construed to include "affirmation" in cases where, by law, an affirmation may be substituted for an Oath....

It has been said that an Oath is a solemn adjuration to God to punish the affiant if he/she swears falsely. The sanction of the Oath is a belief that the Supreme Being will punish falsehood, and whether that punishment is administered by remorse of conscience, or in any other mode in this work, or is reserved for the future state of being, cannot affect that question, for the sum of the matter is a belief that God is the avenger of falsehood.

God? In The Constitution Of India?

Unlike many Constitutions of the world, the Constitution of India did not mention God either. Not in its 'body'. The Constituent Assembly comprised, in the main, of 'believers'. One might say that most of them were, in their hearts, pious. Yet, despite their beliefs, they did not think it necessary or right to bring the Almighty into the text. They kept God out of the formulations. We were, after all, to be a Secular Nation. The speeches of Gandhi outside of the Constituent Assembly and of Pt. Jawahar Lal Nehru and Dr. B. R. Ambedkar in the Constituent Assembly made it clear that the State was the State, Religion was Religion, and the two were not to mix.

But God is God.

He is Omnipresent.


Almost in spite of the framers of the Constitution, God tiptoed ever so gently into the Constitution of India. But what a footprint He has made! So, how does He come into the Constitution of India? Right through the front door, right royally. And yet invisibly. He is in a Schedule, Schedule Three. What is in a Schedule is Scheduled. And so, like a Scheduled subject in the Union, State or Concurrent lists of 'subjects', like a Scheduled State or a Scheduled language, God, too, is Scheduled in Constitution of India as a Scheduled Oath. Only a constitutional amendment can deprive him/her of that position now.

The form of Oath prescribed in the Third Schedule of the Constitution of India, gives Members of Parliament, Members of Legislative Assemblies and a host of functionaries and Judges of the Supreme Court and High Courts entering their High Office this option: They can either 'swear in the name of God', or 'solemnly affirm' that they will bear true faith and allegiance to the Constitution and the law.

Despite a Secular Preamble, the Third Schedule of the Constitution of India provides an option to either swear in "the name of God" or "solemnly affirm" depending upon the belief of the individual undertaking the Oath.

Legal Position
JJS Leader Umesh Challiyil, an MLA from the Kodungallur constituency, Kerala, had taken Oath in the name of his Guru Sri Narayana Guru. His swearing-in was challenged in a Public Interest Litigation filed in the Kerala High Court. Division Bench of Kerala High Court in [Haridasan Palayil Vs. The Speaker of 11th Kerala Legislative Assembly & Ors., AIR 2003 Kerala 328] while declaring his Oath void, holding that he had deviated from the exact words of the Constitution of India and taken the Oath "in the name of Sri Narayana Guru", held as under:
"54.3. The forms of oath have been prescribed for the President, the Prime Minister, the Chief Justice of India, the Controller and Auditor General, and the Members of Legislatures etc. The obvious intention 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. A Member of the Legislature, Union or State, represents a constituency.

He is the spokesman of all the people belonging to the area. He has to stand for all, irrespective of their shade of faith and religion. He is the people's representative. He is not free to cater to the belief of a sect or section of the society. He does not represent the Christians, Hindus or Muslims only, but even the Buddhists, Jains and all others. By the very nature of his office, he is bound to inspire equal confidence and faith in the minds of all. This is essential to ensure that he represents everyone, irrespective of the caste or creed, faith or religion.

It is meant to help in maintaining national harmony. It is intended to foster Unity in Diversity so as to preserve the integrity of India. That is the apparent rationale and reason for the prescription of a 'Form' of the 'Oath' in the Constitution. Thus, every person has to conform to the 'form' as prescribed. The Constitution does not permit any deviation or variation. For if any deviation were permitted, we may not know where to stop. In case, the person chooses to take the oath, he has to swear in the name of 'God'. None else."

Subsequently, Umesh Challiyil challenged the High Court Judgment in the Supreme Court of India submitting that his Oath should be considered valid as he believed that Sri Narayana Guru was his God.

Clarifying the position on the use of names of Gods and God-men, the Supreme Court Bench comprising Justices R. M. Lodha and Anil R. Dave, ruled that "Oath should be either taken in the name of God or solemnly affirmed. It should be in strict compliance with the wordings in the Constitution of India. The word 'God' cannot be misconstrued or replaced with the names of any God-men", the Supreme Court said.

A politician who subscribes to the constitutional ethos and undergoes the electoral process in a working democracy has a duty to abide by the mandates of laws of the land. Irrespective of any person's religious belief or non-belief, the allegiance of such person holding a constitutional position must be only to the Constitution of India.

The Republic of India belongs to the multi-religious plural citizenry of this Nation, and a person occupying a constitutional position must take Oath in the Format of "solemnly affirm" or "in the name of God" to protect the ideals enshrined in Constitution of India. Further, being a public servant and a representative of the whole population of India, a Minister / Member of Parliament / Member Legislative Assembly cannot take Oath in the name of a particular God, Goddess or God-man.

Conclusion
As noticed above, Article 188 of the Constitution of India makes it incumbent upon a Member of the Legislative Assembly to subscribe to the Oath or affirmation before, taking his/her seat in the Legislature. The Constitution makers have even prescribed the Form. The language is plain. It lays down the choice. Either swear in the name of God or make an affirmation. Nothing more. The words allow no variation.

India is a land of immense diversities. To some God is just a short form of Good. To some He is Allah, Bhagwan or Father. Some of us show reverence to even reptiles. Undoubtedly, every one of us has the freedom to act according to his/her faith. But only in our private lives. When a person occupies a constitutional position, he/she has to scrupulously abide by and observe the constitutional mandate. A Member of the Legislature, Union or State, represents a constituency.

He/She is the spokesman of all the people belonging to the area. He/She has to stand for all, irrespective of their shade of faith and religion. He/She is the people's representative. He/She is not free to cater to the belief of a sect or section of the society. He/She does not represent the Christians, Hindus or Muslims only. But even the Buddhists, Jains and all others. By the very nature of his/her Office, he/she is bound to inspire equal confidence and faith in the minds of all.

The perception of God has to be as that of the entire people. Not personal. The society at large and not merely the 'Assembly' must get the confidence that the legislator shall work under the fear of 'God' as understood by all and not by him/her as An individual. This is essential to ensure that he/she represents everyone, irrespective of the caste or creed, faith or religion, it is meant to help in maintaining national harmony. It is intended to foster Unity in Diversity so as to preserve the integrity of India as a country.

That is the apparent rationale and reason for the prescription of a 'Form' in the Constitution of India. For the reason that the Constitution of India does not permit any deviation. It insists upon a strict compliance. A deviation is not a mere irregularity. It is a manifest illegality. Thus, every person has to conform to the 'Form' as prescribed. Otherwise, it has to be assumed that he/she has not taken the oath. He/She has not duly entered upon the Office.

The people who are riot punctilious in the matter of ceremonial observances are likely to be neglectful in performing the higher duties of the Office or observing the principles. It is to ensure this that the Constitution of India lays down the form. The Oath is not a matter of formality. Nor a superstition. It is not a mere ritual. It is a constitutional mandate. Just as the seven steps around the holy fire or the tying of Mangal Sutra are essential to sanctify a marriage, the 'Oath' to be valid, has to be subscribed in the Prescribed Form.

The person has to demonstrate his/her 'allegiance' to the Constitution of India by scrupulously abiding by the form. Not by altering it. Otherwise, there would be no end to the modifications or variations. The purpose of prescribing the Form is to induce a sense of subordination to the Constitution of India in men of all faiths. Not to submit to it is illegal and carries with it a recurring penalty. The constitutional boundaries cannot be crossed.

The Constitution of India does not condone the violation and does not grant the liberty to vary the words of the Oath to the holders of Constitutional Offices. It lays down the Form. It has to be followed in letter and spirit. If any variation were to be allowed, there would be no end to the variations. We shall have countless versions of God. This variety might provide the proverbial spice to some but has the danger of spelling the doom for all.

Written By: Dinesh Singh Chauhan, Advocate, J&K High Court of Judicature, Jammu.
Email: [email protected]; [email protected]

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