The question came before the court ‘Baljeet Singh v. Election Commissioner of India (2000)’. In this case, the the petitioner’s case was that Articles 84 and 173 of the Constitution have to be read in a manner that persons who are unable to comprehend their requirement of making and subscribing the oath or affirmation in terms of Articles 84, 99, 173 and 188 of the Constitution are ineligible to become Members of Parliament and Legislature of a State.
To put it differently, according to the petitioner, the words “makes and subscribes” under Articles 84(a) and 173(a) not only imply that a person qualified to be a candidate to fill a seat in Parliament should be a citizen of India and not less than 25 years of age in the case of being elected to the House of People and not less than 30 years of age on being elected as member of Council of States but also should have sufficient knowledge of the letter and spirit of the Constitution, in order to make the requirement of making and subscribing the oath or affirmation to the Constitution meaningful and purposeful.
It was submitted by the petitioner that the roles of Legislature are very vital for proper governance of the country in formulating policy decisions and making of laws on varied subjects. A person who is not literate and does not have basic knowledge of the Constitution cannot be said to have fulfilled the requirement of making and subscribing to the Constitution.
Thus, according to the petitioner, use of the expression “make and subscribe” under Articles 84(a) and 173(a) also makes the legislative intent clear that adequate knowledge of law and spirit of the Constitution is inherent in the provisions. Since he is unaware of what is being legislated, the law making power delegated to him by the Constitution really results in mindless participation and more so when enactment of a statute comes up for consideration of the law making bodies.
The Constitution makers were conscious of this position as their deliberations clearly reflect.
Articles 84(a), 99, 173(a) and 188 read as follows:
84. Qualification for membership of Parliament—
A person shall not be qualified to be chosen to fill a seat in Parliament unless he—
(a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule;
99. Every member of either House of Parliament shall, before taking his seat, make and subscribe before the President, 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.
173. Qualification for membership of the State Legislature. – A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he—
(a) is a citizen of India, and makes and subscribes before some person authorised in that behalf of the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule;”
188. Conduct of Business – 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.”
Analysis of the Court
The court analysed the case as follows-
- 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.
- 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.
- Not only that the amendment proposed to the draft Constitution in 1949 regarding literacy to be an essential qualification of a candidate for being elected to the Parliament or State Legislature was rejected by the Constituent Assembly, the Parliament while enacting the Representation of People Act, 1951 (in short, R. P. Act, 1951) was also conscious of the fact that there can be some candidates for election to the Parliament or State Legislature who were not in a position to read and write.
- The Parliament in Section 2(1)(i) of the said Act while giving the meaning of the word “sign” has indicated that “sign” in relation to a person who is unable to write his name, must authenticate in such manner as may be prescribed, Again Rule 2(2) of the Representation of People (Conduct of Elections and Election Petitions) Rules, 1951 also contemplate a situation where as candidate is not in a position to read and write and requires such a candidate to sign an instrument or other paper by placing a mark thereon.
- Rule 2(2) of the said Rules reads as under : “For the purpose of the Act or these Rules, a person who is unable to write his name shall, unless otherwise expressly provided in these Rules, be deemed to have signed an instrument or other paper if he has placed a mark on such instrument or other paper in the presence of the Returning Officer or the presiding officer or such other officer as may be specified in this behalf by the Election Commission and such officer “on being satisfied as to his identity has ‘attested’ the mark as being mark of such person”.
- While amending the Constitution in 1963, the Parliament was aware of the stipulations in R. P. Act, 1951 as well as the Rules framed thereunder about a candidate not being in a position to write his name and the said Act and the Rules have not been amended till date. It shows that it was never the intention of the Parliament to read “literacy” in the words “makes and subscribes” in Articles 84(a) and 173(a) of the Constitution.
- The definition of the word “sign” in the General Clauses Act, includes the making of a mark. In Section 2(1)(i) of R. P. Act, 1951 the word “sign” in relation to a person who is unable to write his name means authenticated in such manner as may be prescribed. In Section 33(1), (2) (before amendment of 1956), the word “subscribe” means signing according to the requirements of the Act. In case of thumb marks attestation is necessary.
- Failure to comply with the provisions of the Sections entails the penalty of rejection of the nomination paper. The word “subscribe” in the modern sense means to sign one’s name; to signify assent or adhesion to by signing one’s name; to attest by signing. The meaning of the word “sign” is also similar, i.e., attest or confirm by adding one’s signature to affix one’s names to a document etc, Stroud’s Judicial Dictionary gives the meaning of “subscribe” as to write under something in accordance with the prescribed regulations, where any such exit (see Rattan Anmol Singh v. Atma Ram, ).
- The Constitution does not prescribe any specific manner as to how the oath is to be made or subscribed. The only prescription is that it should be according to the Form set out for the purpose in the Third Schedule which means as far as possible as per the Form. The word “subscribe” has not been defined in the Constitution.
But it has been used in Section 33 of the R. P. Act, 1951. Unlike other provisions of the Representation of the said Act Section 33 dealing with the nomination of candidate uses the expression “subscribed” as noted by the Apex Court in Ratan Anmol Singh’s case (supra).
- To put the position differently, if there is no requirement that there should be element of literacy at the time of filing the nomination of the candidate, it will be difficult to accept the stand that there should be requirement of literacy at the time of making of the oath after the filing of the nomination.”
Baljeet Singh v. Election Commission of India (2000)