Tej Pratap Yadav, the newly appointed health minister, fumbled his oath. A first-time legislator, the boyish Yadav began assuredly. But nerves soon took over for the 28-year-old. He laboured through the latter half of the oath, ultimately mispronouncing a word.
Ministers swear “not to communicate [to third parties] … any matter … except as required by law”. Speaking in Hindi, Pratap mangled a vowel. He effectively swore not to communicate any matter “except by neglect”.
Alert to the misreading, Governor Kovind interrupted Yadav and pointed out the error. The crowd jeered. Yadav, palpably nervous, tried a second time. He made it through, but not before the Governor schooled him again, this time on grammar.
Oath gaffes happen. John Roberts, the Chief Justice of the United States Supreme Court, flubbed the oath as he swore in President Barack Obama in January 2008. At least four American presidents are said to have experienced something similar. As snafus go, Yadav’s was trivial. Ordinarily, the matter would have ended there.
But Tej Pratap Yadav is no ordinary novice. The latest scion to venture into the profitable business of dynastic politics in India, he is the eldest son of Lalu Prasad Yadav, Bihar’s old political hand. Slighted by the Governor’s fastidiousness, Yadav senior was quick to express fatherly outrage. Where others saw an endearing error, he sniffed humiliation.
Lalu Prasad Yadav now wants to exact constitutional revenge. His target: Prime Minister Narendra Modi. Armed with a YouTube video, Yadav has demanded that Modi retake his oath of office. Apparently, like his son, the Prime Minister had also mispronounced a word at his swearing-in last year. “The President must intervene”, he said.
Should President Pranab Mukherjee oblige?
Who takes oath?
Yadav’s demand borders on the absurd. But it invites us to investigate a common – and commonly misunderstood – constitutional practice: oath of office. Who takes oath? Why do they do so? Does it matter?
All government employees in India swear allegiance to the country, to the Constitution, to uphold the “sovereignty and integrity of India”, and to carry out their duties “loyally, honestly and with impartiality”. Normally, this involves banal paperwork: signatures on filled-in forms and nothing more.
The pageantry of oath-taking – the kind that lends itself to Yadav-like bloopers – is reserved for a handful of offices. The Indian Constitution lists ten of them: President, Vice-President, Governor, central and state ministers, Members of Parliament and state legislatures, Supreme Court and high court judges, and the Comptroller and Auditor General. Making sense of the list is not easy as it has no obvious logic.
Do only elected offices command a ceremonial oath? Clearly not. Governors, judges and the CAG are not elected. Perhaps all constitutional offices command this oath? That is not the case either as the Attorney General, Advocate General, Speaker and Election Commissioners hold constitutional offices but do not take oaths.
Adding to this promissory confusion are municipalities and panchayats, India’s constitutionally-guaranteed third tier of government. Members of these vital, but less prestigious bodies, must swear an oath before they can exercise lawful authority.
Some statutory bodies prescribe the spectacle for its officers, further queering the pitch. In June this year, for example, President Mukherjee administered the oath of office to a new Central Vigilance Commissioner and a Chief Information Commissioner at a neatly organised function. But the chairperson of the National Human Rights Commission or the Central Administrative Tribunal, or the legions of functionaries who hold august positions under other national or state laws, do not walk the red carpet. It is a prestige bestowed only on an arbitrary few.
Contents of the oath
What do officials swear? The oaths make for interesting reading. The President swears to “preserve, protect and defend the Constitution and the law and … devote [himself or herself] to the service and well-being of the people of India”. Governors pledge a similar allegiance, but to the people of their respective states.
The Vice-President has a more modest remit: “I will bear true faith and allegiance to the Constitution”, he or she swears, “and faithfully discharge the duty upon which I am about to enter”. Members of Parliament recite something similar.
Ministers, judges and the CAG, however, say a bit more.
Ministers promise to “bear true faith and allegiance to the Constitution”, “uphold the sovereignty and integrity of India” and “faithfully and conscientiously discharge [their] duties … without fear or favour, affection or ill-will”.
Judges and the CAG promise similar things. But their oaths also acknowledge a discretionary quotient: They pledge to perform to the “best of [their] ability, knowledge and judgment”.
Constitutional supremacy is the obvious leitmotif here. Some officials swear to preserve, protect and defend the Constitution; others affirm allegiance to it; still some others promise to uphold it. The bottom line: Metaphorically prostrating before the Constitution is a pre-condition for public office.
But there are differences. Substantively, presidential and gubernatorial oaths are the most expansive: Devotion to the service and well-being of the people of India or at the states covers a wide ground. Ironically, these offices are modestly elected, or not at all. The President has an indirect, but national, mandate. Governors have none; they are simply political appointees.
These offices also enjoy an exemption. Members of Parliament, ministers, judges and the CAG are burdened to “uphold the sovereignty and integrity of India”. The president, vice-president and governors are not; they make no such claim.
This variance was a later addition. The then newly established National Integration Council recommended this change in 1962. To combat the growing tide of subnational affiliations, the Council suggested that the Constitution should reinforce the idea of India, particularly its unity and integrity. Consequently, Parliament amended the Constitution in 1963 to elongate the oaths. The three highest offices, however, were exempted from that commitment.
Hint of a rebellion
These oaths, like much of India’s modern constitutional practice, have an Anglo-Saxon lineage.
Eight hundred years ago, in June 1215, barons, having extracted concessions from King John, affirmed in the Magna Carta their allegiance to him. Over time, this became the Oath of Allegiance – an oath affirming loyalty to the British monarch and their heirs and successors.
It remains in vogue even today. Public authorities, including members of Parliament, must swear allegiance to the crown before they can take office. This occasionally invites constitutional anxieties, especially from those committed to the abolition of the British monarchy.
In 1997, two members of Sinn Féin, a Northern Ireland-based political party, were elected to the House of Commons. They refused to assume their seats. Committed to republican values, they were unwilling to pledge allegiance to the Queen. They sacrificed their salaries and benefits, preferring to hold steadfast to their principle. Consequently, Sinn Féin constituencies, even today, are a curiosity: they have elected representatives and yet are unrepresented in Parliament.
Jawaharlal Nehru’s cabinet, arguably, foresaw this possibility. Apart from elongating the oaths, the 1963 constitutional amendment imposed a new oath on aspiring electoral candidates. Citizens, in other words, must pledge allegiance to the Constitution and promise to “uphold the sovereignty and integrity of India” just to contest elections. This may be the only Indian instance when private citizens must make an oath ordinarily reserved for public officials.
Some republicans in Britain have tried a different approach to undermining the Oath of Allegiance. In 1992, Tony Benn, a Labour Party giant, prefaced his “allegiance to Her Majesty Queen Elizabeth, her heirs and successors” with the following words: “As a dedicated republican.”
Is an oath the same oath if you add to or delete from it? Could Indians still unreconciled to the idea of India pledge allegiance to the Constitution “subject to their sub-national aspirations”? Or could they pledge allegiance to the Constitution “subject to their faith”? Benn’s approach clearly wouldn’t pass muster with Bihar’s Governor Kovind, an obvious literalist. In making Tej Pratap Yadav do a retake, he explained his approach: an oath is exactly how it reads; no more, no less.
Oaths matter. But do they matter legally? They obviously do in one sense. The President or the Prime Minister of India, for example, cannot exercise lawful authority without performing the promissory ritual. But is the violation of an oath a legal wrong? Is there a legal remedy for a breach of oath?
The question arose in the case of KC Chandy v Balakrishna Pillai (1985). Pillai, a minister in the Kerala state government, allegedly exhorted the public to wage war against the Union of India at a rally in May 1985. This call to arms, the petitioner claimed, contravened the minister’s oath to uphold the sovereignty and integrity of India. Having breached his oath, the minister, Chandy argued, should be dismissed from office.
The court rejected his argument. While oaths have constitutional significance, their violations do not generate legal remedies, the Kerala High Court said. While the courts cannot grant any relief, the governor or the chief minister is free to act against erring ministers. Breach of oath, in other words, may have a political remedy, though not a legal one.
Oath of office, then, it seems, has a chameleonic property. It is legally relevant only till it is performed. Once performed, it becomes legally irrelevant.
Vehicle for revenge
Apart from exceptional cases, the spectacle around oath-taking matters more than the oath now. Narendra Modi demonstrated diplomatic acumen in inviting South Asian heads of states to his swearing-in last year. In May 1996, Atal Bihari Vajpayee opted for the forecourt of the presidential palace, instead of the traditional Ashoka Hall, to conduct his prime ministerial oath. Supporters read in it a commitment to open and accessible government.
Last week, Nitish Kumar’s ceremony was keenly watched for attendance. The rhapsodic presence of opposition leaders, some think, portends a new political coalition against Modi.
Lalu Prasad Yadav’s demand for administering a new oath of office to Modi is grounded in this idea of juratory spectacle. He wants to avenge his son’s humiliation: The oath is only a vehicle.
On May 26, 2014, Narendra Modi swore to “faithfully and conscientiously discharge [his] duties” as the Prime Minister of India and to “do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill will”.
Contrary to Yadav’s fulminations, Prime Minister Modi doesn’t need to retake his oath of office. He only needs to live up to the one he has already taken.
Shubhankar Dam, a constitutional expert, is a professor of law in Hong Kong
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