In the Constitution while referring to the Parliament, Article 99 prescribes that every member of either House of Parliament or some person appointed on behalf by him, should take an oath or affirmation according to the form set out for the purpose in the Third Schedule that he shall bear true faith and allegiance to the Constitution of India as established by law. The form prescribed in is Schedule III as Form No. 1II-B.
Similarly, in respect of legislature of the Slate, Article 188 also imposes an obligation on the member of legislative Assembly or the Legislative Council as the case may be to make and subscribe an oath or affirmation in the manner prescribed in Third Schedule and Form No. VIII-B, Both these articles refer to obligation to take oath or affirmation after the member is elected and before he takes the seat to the effect that he will bear true faith and allegiance to the Constitution of India as by law established.
Such provisions were there from the inception of the Constitution. There was no such compulsion for a nominated candidate to make such oath, before the 1963 Amendment. Failure to comply with the above requirements entails penal consequences of Articles 104 and 193 respectively.
Deliberations of Constitution Assembly
It may be necessary to make a journey down the Constitution framing body’s deliberations together what was in the mind of the framers of the Constitution. In the draft Constitution as was originally framed, Article 84 did not find a place. An amendment of the draft Constitution was made as Article 68A. This Article 68A as moved for amendment resulted in Article 84 being made a part of the Constitution.
Two qualifications are prescribed for a person to be eligible to fill a seat in the Parliament. These are:
(a) he should be a citizen of India and
(b) he should not be less than twenty five years of age if he was a candidate for the House of People and not less than 30 years of age if he was a candidate for Council of States.
No further qualifications were prescribed in the Article.
When Article 68A by way of amendment to the draft Constitution was moved. Dr. B. R. Ambedkar stated as follows:
“Sir, the object of the article is to prescribe qualifications for a person who wants to be a candidate at an election. Generally the rule is that a person who is a voter, merely by reason of the fact that he is a voter, becomes entitled to stand as a candidate for election.
In this article, it is proposed that while becoming a voter is an essential qualification for being a candidate, a voter who wishes to be a candidate must also satisfy some additional qualifications. These additional qualifications are laid down in this new Article 68-A.
I think the House will agree that it is desirable that a candidate who actually wishes to serve in the Legislature should have some higher qualifications than merely being a voter. The functions that he is required to discharge in the House require experience, certain amount of knowledge and practical experience in the affairs of the world, and I think if these additional qualifications are accepted, we shall be able to secure the proper sort of candidates who would be able to serve the House better than a mere ordinary voter might do.”
It is significant to note that no additional qualifications were proposed and expression ‘makes and subscribes’ formed part of Article 84 and the matter was discussed in the Constituent Assembly by Dr. Rajendra Prasad, who as President of the Constituent Assembly, expressed his views about desirability of high qualifications for a person to be elected as a Member of Legislature. His views are embodied in the following words:
“I will now put the amendment to vote, and also the article if the amendment is accepted as amended. Before doing so, I desire to make an observation but not with a view to influencing the vote of the House. In this country we require very high qualifications for anyone who is appointed as a Judge to interpret the law which is passed by the legislature. We know also that those who are expected to assist Judges are required to possess very high qualifications, for helping the judge in interpreting the law.
But it seems that members are of opinion that a man who has to make the law needs no qualifications at all, and a legislature, if we take the extreme case, consisting of persons with no qualifications at all may pass something which is non-sensual and the wisdom of all the lawyers and all the Judges will be required to interpret that law. That is an anomaly but it seems to me that in this age we have to put up with that kind of anomaly and I for one, although I do not like it, would have to put up with it.”
Though Dr. B. R. Ambedkar and Dr. Rajendra Prasad who were the Law Minister and the President of the Constituent Assembly, highlighted the desirability of having high qualifications, the same was not found acceptable. Only by Clause (c) of Article 84, Parliament was authorised to make any law prescribing any qualification in that behalf.
In the line of Article 68-A, Article 152 was also added in the draft Constitution. Article 152 of the draft Constitution was incorporated as Article 173 of the Constitution.
The said provision was similar to Article 68A of the draft Constitution. Prof. K. T. Shah moved an application for amendment of this Article by which word ‘literacy’ was sought to be added for a person to be elected as a member of Legislature. The proposed amendment was as under:–
“That in article 152, after the word ‘age’ where it occurs for the first time the words is literate, and is not otherwise disqualified from being elected’: and after the word ‘age’ where it occurs for the second time, the words ‘is qualified to vote in the constituency from which he seeks election, and is not otherwise disqualified from being elected’ be added.”
While discussing the matter. Dr. B. R. Ambedkar said with reference of the amendment moved by Prof. K. T. Shah that literacy is a matter which is well to be left to legislators. If the legislators at the time of prescribing qualifications feel that literacy qualification is necessary they will do it. Amendment moved by Prof. K. T. Shah was negatived by the Constituent Assembly.
Thus, Constituent Assembly is to show that Constituent Assembly had consciously not kept literacy as a qualification for a candidate to be chosen as a Member of Legislature and it was left to the Parliament or the State Legislature at a later date to prescribe qualification if they felt that it was a necessary one for the person to be elected as a Member of the Parliament or the State Legislature.
By the 16th Amendment of the Constitution, which was done in 1963, the words “makes and subscribes before the President or some person authorised on that behalf an oath or affirmation according to the form set out for the purpose in the third schedule” were added. Such addition in under Article 84 did not imply that a person who was required to take the new oath must not only be literate but must also have adequate knowledge of the Constitution.
By 1963 Amendment to the Constitution (Sixteenth Amendment), the requirement of making oath or affirmation and subscribing thereto an elected member, was also made obligatory on the candidates nominated for election. The relevant provisions as far as Parliament is concerned is Article 84(a), and as far as Legislature of the State is concerned is 173(a).
By said Amendment following changes were introduced:
(a) making obligatory on the nominated candidate to make oath or affirmation same as elected member.
(b) the oath or affirmation should also be in upholding of sovereignty and integrity of India.
(c) Correspondingly all the forms of Third Schedule were amended.
(d) In addition, the same wording “sovereignty and integrity of India” was introduced in Article 19(2)(3) of the Constitution of India.
At the outset it is necessary to note the purpose for which requirements of taking oath have been laid out. The purpose of Article 173(a) is to see that any person who wants to be a member of a legislature must bear true faith and allegiance to the Constitution of India as by law established, and he undertakes to uphold the sovereignty and integrity of India and to ensure this he must make oath or affirmation. (See Khaji Khanavar Khadirkhan Hussain Khan v. Siddavan Balli Nijalinappa ).
The essential requirement of Article 173 read with Form VII-A is that person taking the oath or making the affirmation would bear true faith and allegiance to the Constitution and uphold the sovereignty and integrity of India (See : Virjiram Sutaria v. Nathalal Premji Bhavadia ).
The object of introducing the amendment in Clause (a) of Article 173 of the Constitution was to provide that not only before taking his seat shall a member of the Legislature take the oath prescribed by the Third Schedule as required by Article 188 of the Constitution, but also that even before standing for election, a candidate must take the same oath. This is to ensure that only a person having allegiance to India shall be eligible for membership of the Legislature.
Oath of Sovereignty and Integrity of India
In early 60’s, a tendency on the part of the sizable sections of the Indian people to veer over to the idea of secession from the mother country was noticed by the Government. To check these tendencies, the National Integration Council recommended certain amendments to be made in the Constitution so that adequate powers become available for the preservation and maintenance of the integrity and sovereignty of the Union.
It was also recommended that every candidate for the membership of a State Legislature or Parliament and every aspirant too, for incumbency of public office should pledge himself to uphold the Constitution and preserve the integrity and sovereignty of the Union and for that purpose the forms of oath in the III Schedule to the Constitution were to be suitably amended.
Articles 84 and 173 were also recommended to be amended and new bath prescribed in the III Schedule to the Constitution so as to provide every candidate to take an oath to “uphold the sovereignty and integrity of India” was to be added. It was, with this purpose to prevent all activities, designed to have disintegration of the country that not only the members who are elected to the Parliament but even the candidates, who intend to contest for being elected for members of Parliament or State Legislature, were required to take an oath to preserve the sovereignty and integrity of the country.
Shri A. K. Sen, the then Minister of Law, while moving the Sixteenth Amendment to the Constitution said as under:–
“Sir, this Bill was introduced on the recommendation of the National Integration Committee which was set up with Shri C. P. Ramaswami Aiyar as the Chairman, who in the report recommended that Article 19 of the Constitution should be amended so as to make it possible for the State to impose restrictions for the purpose of preventing all activities designed to have further disintegration of the country and to make it impossible for parties to make secession from India or disintegration of India election Programmes or issues.
For this purpose, Sir, the Bill seeks to give power to the Government to impose restrictions by amending suitably Article 19. Article 19(2) and 19(4) do not give power to the Parliament to impose restrictions for the purpose of securing the sovereignty and integrity of India, and we seek to add these words in Article 19 Clauses (2), (3) and (4) of the Constitution.
This is absolutely necessary because the existing words do not cover a power designed to curb activities which seek to challenge the sovereignty and integrity of India as some parties have recently sought to do — not only they sought to do but to make them election issues on which elections have been fought and the most narrow and parochial sentiments and emotions have been roused and people have been called upon to vote on these issues.
Hereafter, Sir, it is designed to bring into operation strict laws which will penalise all such activities. Further than that, in deference to the recommendations of the same Committee, we are making it absolutely obligatory for all candidates who seek election either to the local legislatures or to Parliament to subscribe to oaths before elections pledging themselves to uphold the sovereignty and integrity of India.
The form of the oath, as amended after the Bill becomes law, is shown in Clause 5 of the Bill and this will also have a salutary effect on a candidate, who has pledged himself to uphold the sovereignty and integrity of India not to make disintegration and secession an election issue.
As I said, Sir, when it was referred to the Joint Committee, it should be passed without any division whatsoever because I cannot conceive of any reasonable objection to a candidate can do, the least that a member to local legislature or to the Parliament subscribing to an oath pledging himself to uphold the sovereignty and integrity of India.
This is an elementary duty, the least that a candidate can do, the least that a member of either the local legislature or Parliament can do, and this is the least duty that he owes to this country to which he belongs: It is unfortunate that, at a time when we are facing the most major threat in our history since independence, we should have to contend with such activities and have to ask for powers to deal with such activities.
Yet, it becomes all the more necessary that these powers should be taken to see that the integrity and security of the country are not capable of being threatened by anyone, who chooses to make these narrow issues either election issues or issues of a local or regional character.
I should, therefore, humbly appeal that at least for the purpose of showing the united will of the country and the united will of this House the entire country must stand pledged permanently to the sacred duty of upholding the integrity and sovereignty of India and pledging itself ruthlessly to deal with all activities, which seek to threaten the very foundation of our freedom, integrity and unity.
It is only by such united voice that we are capable of expressing that in my submission we shall be able to carry the entire country with us. Therefore, I humbly submit that this motion be accepted and the Bill be passed without any dissenting vote.”
It is, therefore, clear that the only purpose for amendment to the Constitution in 1963 was to put restrictions upon the rights guaranteed by Article 19 of the Constitution of India in the interest of sovereignty and integrity of the State and to provide that every candidate for membership of Parliament or State Legislature, Union and State Ministers, Members of Parliament and State Legislature, Judges of Supreme Court and High Courts and the Comptroller and Auditor General of India, should take an oath to uphold the sovereignty and integrity of India.
It was never the intention of the Legislature that by these amendments in the Constitution, an additional qualification of a candidate being literate and having knowledge of the Constitution of India was added.
Moreover, Rule 2(ii) of the Conduct of Election Rules clearly mention that the oath will be read over to the person who is not in a position to read the same and such person may put his mark in the form prescribed for the purpose. This clearly implies that there can be a candidate who cannot read and write and in such a case oath as prescribed by the Act was to be read over to him and he was required to put the mark in the form prescribed for the same. These Conduct of Election Rules were framed in 1961.
In 1963, when the Constitution was amended, the Parliament was aware of the existence of Conduct of Election Rules. In spite of the existence of said rules, the Parliament did not find any reason to amend the same, which clearly go to show that it was not the intention of Parliament to make literacy implicit in Article 84(a) or 173(a) as a qualification for a person to be elected to Parliament.
Baljeet Singh v. Election Commission of India (2000)