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G. Vasantha Pai Vs. C.K. Ramaswamy and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 1574 of 1978
Judge
Reported inAIR1978Mad342
ActsConstitution of India - Articles 75(4), 154, 163, 164(3), 188, 266, 316(1), 361, 363 and 367; General Clauses Act, 1897 - Sections 14, 15 and 16; Constitution of India (2nd Amendement), 1971; ;Code of Civil Procedure (CPC), 1908 - Sections 9 and 42; Specific Relief Act,1963 - Sections 34
AppellantG. Vasantha Pai
RespondentC.K. Ramaswamy and anr.
Appellant AdvocateParty in Person
Respondent AdvocateAdv. General assisted by ;Govt. Pleader
Cases ReferredV. R. Sutarjia v. N. P. Bhanvadia
Excerpt:
constitution - oath - articles 75 (4), 154, 163, 164 (3), 188, 266, 316 (1), 361, 363 and 367 of constitution of india, sections 14, 15 and 16 of general clauses act, 1897, constitution of india (2nd amendment), 1971, sections 9 and 42 of code of civil procedure, 1908 and section 34 of specific relief act, 1963 - returned candidate entitled to take seat of legislative council only after taking oath administered by governor or by person appointed by him - petitioner-returned candidate expressed his unwillingness to take oath before person appointed by governor and requested governor to administer his oath - no explanations by governor as to denial of said request - writ petition maintainable for matter involved interpretation of articles of constitution of india - petitioner sent letter of.....orderv. ramaswami, j.the petitioner had been a member of the tamil nadu legislative council from june 1969 to april 1976. in the biennial election held on 9-4-1978, he was by a notification dated 11-4-1078,made by the returning officer, declared to have been duly elected to fill one of the seats from madras district graduates constituency for the legislative council of tamil nadu. in pursuance of section 74 of the representation of the people act, 1951, the election of the petitioner was notified in the tamil nadu government gazette extraordinary dated 21-4-1978. on such notification under section 74, the petitioner had become a member of the legislative council and his term of office as such member began on and from 21-4-1978, as contained in the provision of section 157 of the.....
Judgment:
ORDER

V. Ramaswami, J.

The petitioner had been a Member of the Tamil Nadu Legislative Council from June 1969 to April 1976. In the biennial election held on 9-4-1978, he was by a Notification dated 11-4-1078,made by the Returning Officer, declared to have been duly elected to fill one of the seats from Madras District Graduates Constituency for the Legislative Council of Tamil Nadu. In pursuance of Section 74 of the Representation of the People Act, 1951, the election of the petitioner was notified in the Tamil Nadu Government Gazette Extraordinary dated 21-4-1978. On such notification under Section 74, the petitioner had become a Member of the Legislative Council and his term of office as such Member began on and from 21-4-1978, as contained in the provision of Section 157 of the Representation of the People Act. Though he had thus become a Member by virtue of the declaration and notification of the result under Section 74, Article 188 of the Constitution required that he shall before taking his seat in the Council 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 to the Constitution. Certain penalties and consequences are provided in Article 193 if a Member takes a seat in the Council or votes before he has complied with the requirements of Article 188. The Council's rules require the member to sign the roll of members kept by the Council's Secretary before he takes his seat and enters on his duties as a Legislator in the Council.

2. On the 12th April 1978, after he was declared elected, the petitioner contacted the first respondent who is the Secretary of the Legislative Council and informed him that he would like to take his oath. Later, the first respondent informed the petitioner that the Notification as to the report of the result of the election was expected to be made in the Official Gazette and that he could take the oath after such notification made under Section 74 of the Representation of the People Act. Though there are certain allegations made in the affidavit filed in support of the writ petition about the telephonic conversations between the petitioner and the first respondent during the period from 12-4-1978 to 21-4-1978, it is not necessary for me to take note of those statements as they are not relevant except to note two factors. One is that the petitioner was insisting on his being sworn to and his right to be sworn arose only on 21-4-1978, when he had become a member by reason ofthe Notification under Section 74. The other factor is that by a D. O. letter dated17-4-1978, the first respondent informed the petitioner that before the petitioner could take his seat in the Legislative Council, he will have to make and subscribe an oath or affirmation as required under Article 188 of the Constitution and, that 'the Tamil Nadu Legislative Council will meet at 4 p.m. on Monday the 24th April 1978 for the administration of oath or affirmation to the newly elected or nominated members of the Legislative Council.' In this letter, the first respondent further requested the petitioner to be present in the Legislative Council Chamber before 4 p.m. on Monday the 24th April 1978, with the certificate of election issued by the Returning Officer, as it had to be deposited with the Secretary, Legislative Council, before taking the oath or affirmation.

3. By one notification dated 20-4-1978, published in the Gazette Extraordinary, on the same date, the Governor of Tamil Nadu notified that as the Office of the Chairman, Tamil Nadu Legislative Council was vacant, in exercise of the powers conferred by Clause (1) of Article 184 of the Constitution, he had appointed the second respondent who is a Member of the Legislative Council to perform the duties of the Chairman from the forenoon of 21st April 1978, until a Chairman is chosen by the Council under Article 182 of the Constitution. By another Notification of the same date published in the Gazette, in exercise of the powers conferred by Article 188 of the Constitution, the Governor of Tamil Nadu appointed the second respondent 'as the person before whom the oath or affirmation may be made by the members of the Legislative Council under the said Article.'

4. The petitioner met the Governor on 22-4-1978 at 10-45 a.m. and apprised the Governor that he would like to take his oath before him only. After some discussions, when asked what objection was there for the petitioner to take oath before the second respondent, the petitioner explained to the Governor that the second respondent's speech in the Council on State Autonomy wherein he urged the then Chief Minister to follow the example of Mujibur Rahman in the event of the Centre not conceding his demands, was very shocking to him and he had registered his protest immediately in his speech made in the Council then and he (petitioner) felt that the second respondent had violated the spirit andletter of oath he had taken under the Constitution to uphold sovereignty and integrity of India and that he would not like to be sworn in by him. He had also mentioned certain other objections for swearing before the second respondent though the second respondent has been nominated by the Governor under Article 188. In the affidavit the petitioner further States -

'.........the Governor then told me that I was sentimental but if I insist I could contact the first respondent herein and ask him to place the papers before him and arrange for the swearing in by him as he pointed out there was the necessity of the Legislature staff being present and my signing the register before him. I thereupon immediately went to the first respondent and informed him of my interview with the Governor and gave him a letter to that effect. The first respondent received the orignial of the said letter at 12-55 p.m. on 22-4-1978 and also took from me the original declaration of result for the purpose of being forwarded along with my papers to the Governor......'

5. In the letter dated 22-4-1978, referred to in the above passage, the petitioner's presenting himself before the Governor with the declaration of the result informing him of his desire to take the oath before the Governor and his unwillingness to take the oath before the protem Chairman and what the Governor informed him on that representation were all referred to. In this letter, he had made a request to the first respondent to make arrangements to enable him to take the oath before the Governor by 23rd April 1978, so that he could vote in the house for the election of the Chairman on the 25th. An interim reply was sent by the first respondent to the petitioner to the effect that his letter was under consideration. On 22-4-1978. the petitioner sent a wire to the Governor which read as follows--

'Presented myself twenty second for taking oath under Article 188. As directed moved Secretary, Council place papers before you. No intimation. Please administer oath before 10 a.m. 24th. Lest I be disqualified under Article 193.

Vasantha Pai, M. L. C.'

This was followed by a letter on the 24th to the Governor. After inviting the Governor's attention to the telegram and his objections for taking oath before the second respondent, and the first respondent's inaction, he requested the Governor that the oath be administered to him immediately, so that he could perform the functions as a Legislator and take part in the election of the Chairman. He also requested to be informed of the date and hour immediately so that he could present himself for such swearing.

6. It is seen from the counter affidavit filed on behalf of the respondents that a copy of the petitioner's letter dated 22-4-1978 was submitted to the Governor immediately on the same date. The counter affidavit further stated--

'The matter was then examined by Government; and orders of the Governor obtained on 23-4-1978. The communication in this regard was served on the petitioner at 8-30 a. m. on 28-4-1978, as 23-4-1978 was a holiday'. The communication referred to in this paragraph was written by the first respondent to the petitioner on the 24th and it stated that the first respondent was directed to inform the petitioner that 'as you have got sufficient opportunity to take the oath or affirmation before the Chairman pro tem appointed for the purpose under Article 188 of the Constitution of India either in his Chamber or at the meeting of the Council specially convened for the purpose at 4 p m. on Monday the 24th April 1978, it is not possible to comply with your request'.

It is not necessary to note in detail the contents of the letter dated 24-4-1978 written by the petitioner to the first respondent in response to his letter except to state that the petitioner had been reiterating his stand and that he had not been sworn in spite of his best efforts.

7. On 27-4-1978 the petitioner sent his oath in the form prescribed in the Schedule III duly signed by him in duplicate to the Governor along with a covering letter in which he stated that he is sending the oath in duplicate duly signed by him in view of the great delay in administering the oath under Article 188. He referred to Article 188 as the sacred Constitutional duty of the Governor, to administer the oath to the members who call upon him for the purpose and stated that no red tape or bureaucracy should be permitted to obstruct it. He also stated that he has been deprived of his right to to take part in the election of the Chairman and Deputy Chairman of the Council and to be present at the two sittings of the Legislative Council held on 24th and 26th April 1978, 'despite my callingupon you on the 22nd and despite my further letter of the same date to the Secretary, Legislative Council, requesting him to send papers to you as advised by you. No papers were sent to you and no oath has been affirmed to me. I had stated my objections to taking oath before the protem Chairman, Mr. K. S. Abdul Wahab, and I was within my rights to request you to administer the oath to me, as you are the person envisaged by the Constitution to administer the same. I request you kindly therefore to accept this as my oath and send me a certificate that the same has been duly taken before you. Should you, however, desire that I should call on you in person and read out my oath before you, I shall be happy to do so, if I am intimated the time and place for the purpose.'

8. In the meantime, the Governor had fixed 26-4-1978, as the date for holding the election of the Chairman and the Deputy Chairman stating that nominations would be received by the Secretary till 12 noon on Tuesday the 25th April and that nomination forms can be had from the Secretary. On 26-4-1978, there being only one nomination of the Chairman and the Deputy Chairman respectively, Thiru, M. P. Sivagnanam was declared elected as the Chairman of the Legislative Council and Thiru G. Swaminathan was declared elected as the Deputy Chairman. In the Gazette Extraordinary dated 26-4-1978, the election of the Chairman and the Deputy Chairman was notified and in the Notification in G. O. Ms. No. 27 Legislative Council, dated 26-4-1978, published in the same Gazette, it was notified that in exercise of the powers conferred by Article 188 of the Constitution, the Governor had appointed Thiru M. P. Sivagnanam, Chairman, Tamil Nadu Legislative Council and Thiru G. Swaminathan, Deputy Chairman, Tamil Nadu Legislative Council 'as the persons before any of whom the oath or affirmation may be made by the Members of the Legislative Council under the said Article'. After this appointment and Notification, the first respondent wrote a letter on 28-4-1978 to the petitioner informing him that now that the Chairman and the Deputy Chairman of the Legislative Council have been appointed under Article 188, as the persons before any of whom oath or affirmation may be made by the members, he may be informed as to whether he (petitioner) Would like to take the oath or affirmation as a member before the Chairman, so that he can fix a time for the purpose. But the petitioner had taken up the stand that he had performed all that was required of him under the Constitution and the law and that he was entitled to sign the roll of members of the House and take part in the conduct of the business of the Council. Accordingly, he filed this writ petition praying for issue of a writ in the nature of declaration declaring that he (petitioner) having performed his obligations by presenting himself before the Governor on 22-4-1978 to subscribe to the oath as required by Article 188 of the Constitution of India and having further informed the Secretary, Legislative Council, by his letter of 22-4-1978 to make the necessary arrangements for the making of the oath and subscription thereof before the Governor and having further on 27-4-1978 subscribed in writing to the oath as prescribed in Schedule III of the Constitution and sent the same in duplicate to the Governor offering to follow it up, if necessary by taking the oath in person, has performed all his obligations under Article 188 of the Constitution and is entitled to take his seat in the Legislative Council as a duly elected Member from the Madras District Graduates Constituency without any further obligations on his part.

9. The learned counsel for the petitioner contended that under Article 188, the Governor is the primary authority before whom every member shall, before taking his seat, make and subscribe an oath in accordance with the form set out for the purpose. It is true the Constitution also authorises the Governor to appoint 'some person in that behalf but an exercise of that power to appoint 'some person' in that behalf should not be construed as amounting to an abdication of his authority under the Article. When in exercise of the power the Governor appoints some authority as the person before whom any member may make and subscribe the oath or affirmation, it would only mean that such person appointed would exercise a concurrent jurisdiction along with the Governor. If there are two authorities with concurrent jurisdiction before whom the members can make and subscribe the oath or affirmation, necessarily the option is vested on the members to take their oath or affirmation before either of them. Conversely, a member cannot be compelled in such circumstances, to take the oath before one of the authorities and not theother. Per contra, the learned Advocate General contended that the Governor can discharge the 'Constitutional function' under Article 188 in one of two ways. He can either allow the members to make and subscribe their oath or affirmation before him or delegate the function to some other authority and direct the members to take their obligations before such other delegated authority. While making such appointment in exercise of the powers under Article 188, the learned Advocate General also concedes that the Governor does not abdicate his function or duty enjoined under that Article. But according to the learned counsel, if the Governor had chosen to appoint a person in that behalf, the power retained by him to allow any member to make and subscribe the oath before him is dormant or latent and it could be exercised only at his discretion either resuming the delegated authority in entirety by cancelling the delegation or resuming it with regard to any particular occasion or person. In this connection, he also wanted to contend that whatever might have happened on 22-4-1978, when the petitioner presented himself before the Governor and wanted to take the obligation before him, in view of the statement in the counter affidavit, it may be taken that the Governor on the advice of the Government had expressed a desire at least after 22nd April that the petitioner should take his obligation before the second respondent. The further contention of the learned Advocate General is that the function of the Governor under Article 188 is in the nature of an executive function and as such, under Article 163 he is to be aided and advised by the Council of Ministers in exercise of that function, and if such is the nature of the function Article 361 of the Constitution will be a bar for the court to either directly or indirectly question the decision. Even if it were to be taken as not an executive function but one of those functions required to be exercised in his discretion, the discretion of the Governor in this regard shall be final and the validity of any act done by him shall not be called in question on any ground under Article 163(2) read with Article 361.

10. It is the constitutional mandate that every member of the Legislative Assembly or Legislative Council of the State shall before taking the seat make and subscribe an oath or affirmation before the Governor or some person appointed in that behalf by him. Correspondingly, therefore, we have to take it that there was an obligation on the part of the Governor or some person appointed in that behalf by him to permit every such member to make and subscribe an oath or affirmation before him,

11. The first point, therefore, to be considered is that when the Governor had chosen to appoint, in exercise of his powers under Art, 188, some person before whom the members may make and subscribe their oath or affirmation, either he abdicates his power under the Article or ceases to be obliged to permit every member to make and subscribe his oath and affirmation. It is the common case of both the petitioner and the learned counsel for the respondents that by appointing a person before whom any member may make and subscribe his oath or affirmation, the Governor does not abdicate his power. The only thing that is put in issue between the parties is that whereas the learned Advocate General would contend that the power is not to be exercised concurrently and the power retained by the Governor is dormant or latent to be exercised at his option either by way of the resumption of the power delegated in its entirety or in a particular instance, the petitioner would contend that the Governor and the person appointed by him have concurrent jurisdiction or obligation and having regard to the penal provision contained in Article 193 and the right of the elected member to enter on his duties as a Legislator as early as possible, the option to take the obligation before any of them is vested in the member and] not in the Governor or his nominee. Having given my careful and anxious consideration, I consider that the more just and reasonable view to take would be to treat the jurisdiction as concurrent and the option being vested in the member of the Council. I had reached this conclusion on the cumulative reasonings set out hereunder.

12. Under Article 367, unless the context otherwise requires, the General Clauses Act 1897 shall apply for the interpretation of the Constitution as it applies for the interpretation of any Act of the Legislature of the Dominion of India. Section 14 of the General Clauses Act provides that when any Act or Regulation confers any power, that power may be exercised from time to time as occasion requires. Under Section 15, where a power to appoint any person to fill an office orexecute any function is conferred, then, unless it is expressly provided, any such appointment could be made either by name or by virtue of office. Under Section 16, the authority having power to make the appointment shall have power to suspend or dismiss any person appointed in exercise of that power. It is also a rule of construction that unless the context otherwise requires, singular includes plural. Under Article 188, the Governor could appoint 'some person' in that behalf. The word 'person' will include 'persons'. Accordingly, the Governor could appoint more than one person before any of whom the members may make or subscribe their oath or affirmation. Before a member had made and subscribed such oath or affirmation, the Governor could also revoke -the appointment and appoint another person in that behalf. In fact, it had been the practice in this country for the President in exercising his powers under Article 99 corresponding to Article 188 and for the Governors in the various States under Article 188 to appoint more than one person as authorities before any of whom the members may make and subscribe their obligation. It is not in dispute that by the very terms of the notifications, when the Governor appoints more than one person, the option is given to the members to make and subscribe their oath or obligation before any of them at their choice. The language used in the notification in the instant case both at the time when the second respondent was appointed and also at the time when the Chairman and the Deputy Chairman elected on 26-4-1978 were appointed shows that the oath 'may be made' before any one of those persons, thereby showing that it is not obligatory on their part to take the oath before them only and not before the Governor. In fact, in the context of Article 188 and the language used in Articles 60 and 159, the Constitution Itself contemplates a concurrent jurisdiction being vested in the Governor and the person appointed by him in that behalf. Wherever the Constitution required the making and subscribing of the oath or affirmation to be done only in the presence of a particular specified authority, it specifically mentions so as in the case of President of India and the Governor of a State under Articles 60 and 159 respectively. In all other cases, for instance, in Articles 69, 99, 124(6), 148(2) and 219, more than one authority were contemplated as persons before any of whom a member may make and subscribe his oath or affirmation. Some similar statutory provisions also have come up for consideration before courts, The general accepted theory was that an authority which delegates its powers does not divest itself of them and can resume them in full or in part. A similar question came up for consideration in the decision in Huth v. Clarke, (1890) 25 Q. B. D. 381. In that case, under schedule 6, Clauses 5 and 6 of the Contagious Diseases (Animals) Act 1878, a local authority may appoint an executive committee, which is to have all the powers of the local authority, except rating powers and the executive committee may appoint sub-committees and delegate to them all or any of the powers of the executive committee with or without restrictions, and may from time to time revoke or alter any such delegation. The executive committee of a county council delegated its powers under the Rabies Order, 1887, to a sub-committee. Subsequently to each delegation, the executive committee, without expressly revoking the delegation, issued certain regulations under the Rabies Order as to the muzzling of dogs and keeping them under control. The validity of the executive committee's regulation was in question on the ground that they have already delegated their power to the local sub-committee. While upholding these Regulations made by the Executive Committee, Lord Coleridge C. J. observed thus--

'.......But delegation does notimply a denudation of power and, authority; the 6th schedule of the Act provides that the delegation may be revoked or altered and the powers resumed by the executive committee. The word 'delegation' implies that powers are committed to another person or body which are as a rule always subject to resumption by the power delegating and many examples of this might be given. Unless, therefore, it is controlled by statute, the delegating power can at any time resume its authority. Here the executive, committee has exercised the power which the sub-committee might have exercised -- but did not -- and no question of conflict of jurisdiction arises. I think, therefore, that the justices came to a perfectly right conclusion, and the conviction must be upheld'.

Wills J. on the other hand, while upholding the conviction, gave different reasonings. In the words of the learned Judge--

'Delegation, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself. The best illustration of the use of the word is afforded by the maxim, Delegatus non potest delegare, as to the meaning of which it is significant that it is dealt with in Broom's Legal Maxims under the law of contracts; it is never used by legal writers, so far as I am aware, as implying that the delegating person parts with his power in such a manner as to denude himself of his rights. If it is correct to use the word in the way in which it is used in the maxim, as generally understood, the word 'delegate' means little more than an agent. The notion, therefore, that the use of the word 'delegate' implies that the executive committee parted with their own authority is misconceived'.

It is seen from this judgment that the regulations were upheld but on inconsistent grounds, one Judge holding that the executive committee had resumed its powers and the other, that it had never parted with them. But, in my view, the reasoning could be reconciled. If the delegated authority had already exercised that power, the question of the delegating authority's power would not arise because in such a case, whether the exercise by the delegated authority was right and within his jurisdiction would be the only question and it could not have been the subject matter of the authority who delegated that power. So long as the authority delegated had not been exercised by the delegated authority, the power still remains with the original authority and no question of the jurisdiction of the original authority could arise at all. This decision was followed in the later decision in Manton v. Brighton Corporation 1951 2 KB 393. A similar case came up for consideration before this court also in the decision reported in P. Ramiah v. Chief Secretary : AIR1950Mad100 . In that case, under Section 15 of the Madras Maintenance of Public Order Act 1947 (Madras Act 1 of 1947), the Governor directed that the powers conferred on the Provincial Government by Section 2(1)(a) of the said Act shall be exercised also by all the District Magistrates and the Commissioner of Police, Madras, within their respective jurisdictions. Some persons who landed in Madras from Malaysia were arrestedby the police at Madras on their arrival on 19-11-1948. On 30-11-1948, orders of detention under Madras Act 1 of 1947, were passed by His Excellency the Governor of Madras, under Section 2 (1) of the Act directing the detention of those persons in the Central Jail, Vellore. It was contended in that case that since in exercise of the powers under Section 15 of that Act, the powers conferred under Section 2 (1) (a) on the Provincial Government had already been delegated to all the District Magistrates or the Commissioner of Police, within their respective jurisdictions, the Governor had no power to pass an order of detention under Section 2 (1). Rejecting this contention, the Division Bench held following the decision in Huth v. Clarke (1890) 25 QBD 391, that such delegation of authority to the Commissioner of Police did not deprive the Government of its power under Section 2 (1) in making the order of detention. A single Judge of the Andhra Pradesh High Court in the decision in Anakapalli Municipality v. Commissioner, AJR 1964 An Pra 357 following the decision in Huth v. Clarke (1890) 25 QBD 391 and the Madras decision had also taken a similar view.

13. Thus, both on the construction of the constitutional provisions and the authorities cited, it would follow that the jurisdiction of the Governor under Article 188 is concurrent along with the person who was appointed by him in, exercise of the powers under Article 188. If once it is agreed that it is a concurrent power, there could be no doubt that the option is vested on the member who wants to make or subscribe his oath or affirmation and not on the authority concerned. In fact, the learned Advocate General did not dispute that except for the case of the Governor, in the case of other persons who were nominated, the choice was on the member. I do not find any distinction. The mere fact that the Governor is the constitutional head of the State does not make any difference on this question as the Constitution itself envisages the very making and subscribing of the obligation before the Governor.

14. The petitioner also contended that in fact there was no alternative authority before whom he could take the oath on the ground that the notification relating to the appointment of the second respondent and the notification relating to the appointment of the Chairman and Deputy Chairman of the Council under Article 188 are not in accordance with the provisions in Article 188. In respect of the first respondent's letter dated 28-4-1978, informing the petitioner that the Governor has appointed the Chairman and the Deputy Chairman of the Legislative Council as persons before any of whom the oath or affirmation under Article 188 may be made by the members and that if the petitioner could intimate him expressing his desire to take the oath or make the affirmation as a member, he would place the letter before the Chairman and a time will be fixed, the petitioner in his affidavit contended that the notification itself was not in accordance with the Constitution. A general delegation of power by the Governor without specifying the persons who are to make arid subscribe their oath before them and without giving the reasons for the non-exercise of the power by the Governor himself, will be illegal and ultra vires of the Constitution. In the reply statement the petitioner had also questioned the constitutional validity of the appointment of the second respondent as the person before whom the members can make and subscribe their oath under Article 188 on the ground that the appointment even in that case lacks specificity. I would not have considered the validity of the notification appointing the Chairman and the Deputy Chairman as persons before whom a member can make his oath or affirmation under Article 188, as the petitioner's case was that even before they were appointed, he had complied with the provisions of Article 188. Since the validity of the appointment of the second respondent under Article 188 itself is questioned on the ground of lack of specificity I have to consider and give an answer. In Section 67 of the Government of India Act, 1935, corresponding to Article 188 of the Constitution, the making and subscribing of the oath is required to be done 'before the Governor or some person appointed by him.' Under Article 188, as we have already seen, it should be done 'before the Governor or some person appointed in that behalf by him.' According to the learned counsel, the words 'in that behalf have been introduced in Article 188 and also in the corresponding provisions in Articles 69, 99, 124(6) 164 and 219 in order to make it clear that there could be no general appointment under that Article without reference to the persons who are to take the oath before them. Even here he wanted to say that specificity shouldbe by naming the persons who are to take and subscribe the oath before the authority appointed and not merely as members elected or nominated. In this connection, he also stated that the fact that the practice had been ever since the inception of the Constitution to make general orders, will not be of any avail against the specific language used in Article 188.

15. The words 'some person appointed by him' used in the Government of India Act, 1935,' do warrant a wide interpretation that the appointment could be general in nature and for an indefinite period. It may also be interpreted as any person appointed by the Governor, whether for the purpose of Section 67 of the Government of India Act or otherwise. Thus, the words 'some person appointed by him' could be construed as so wide to include every authority appointed by the Governor irrespective of whether it is for the purpose of making and subscribing the oath before them or for doing any other job. But in the context in which it is used, one would clearly interpret those words as referring only to the person appointed for the purpose of enabling a member to make and subscribe his oath before him. In other words, he would be a person appointed in that behalf. The Constitution-makers have made that position clear by inserting the words 'in that behalf in Article 188 itself. 'In that behalf in the context only means that he is appointed as the person before whom the making and subscribing of the oath could be done. That is, it refers to the function of witnessing the making and subscribing for the purposes of Article 188 and not with reference to any particular individual's making and subscribing the oath. The same conclusion could be reached from a different reasoning. The object or purpose of requiring the member to make and subscribe the oath or affirmation before the Governor or some other authority, is, in my opinion, to evidence or acknowledge that the member had made and subscribed the oath or affirmation before he took a rest in the Assembly or Council as the case may be. In fact, a certificate given by the person before whom the member made and subscribed the oath or affirmation and the decision of the authority that the oath or affirmation has been properly made or not had been considered to be final, as may be seen fromthe Rajasthan Assembly Debate, dated 13-12-1956 and the Madhya Pradesh Legislative Assembly Debate dated 8-7-1957 which are referred to at page 271 of the book 'Practice and Procedure of Parliament' by M. N. Kaul and S. L. Shakdher. The words 'in that behalf are thus intended both to acknowledge the making and subscribing the oath and for certifying that it was done in the form that is required. The purpose of appointment being thus to enable the members generally to take the oath before such authority and get a certificate of compliance with Article 188, the words 'in that behalf could not be given a restricted meaning as referring to the persons who are to make the oath and not the authority to witness and give declaration of compliance. If the Governor had not exercised his power of appointing another, certainly every member would be entitled to make the oath before him, By reason of not mentioning the names, the witnessing and certification by the Governor could not be invalidated. Thus 'in that behalf refers only to the duty of witnessing and certifying for purpose of Article 188. If the notification is clear that it is the members of the Assembly or the Council who may make and subscribe the oath before them, in my opinion, it conforms to the specificity even if any specificity is required and the notification itself could not be invalidated merely on the ground that the individual names of the persons who are to take the oath had not been mentioned while appointing the person. Further, the Words 'in that behalf cannot be given a narrow meaning as relating to the names of the members who are to take their obligation to be mentioned there. It may be that if a specific officer is appointed under Article 188 for the specific purpose of enabling a specified member or members to take' their oath, that notification also will be valid and within Article 188. But that does not mean that if an appointment is made with a specific direction generally that every member of the Council may make and subscribe his oath or affirmation before him and the appointment is for an unlimited period, it lacks any specificity and for that reason it is invalid. In this connection, we must also keep in mind that in construing a Constitutional document, the widest possible interpretation should be given to the words used and it shall not be construed in a restricted, narrow and pedantic sense.

16. In Shabbir v. State : AIR1965All97 , the words 'in that behalf occurring in Article 219 of the Constitution were construed by the Division Bench of the Allahabad High Court as meaning 'for that specific purpose' or 'on that particular occasion'. In the words of the learned Judges (at p. 105) :

'Though Article 219 of the Constitution does not say so expressly it is obvious that departure from the normal rule of the Governor himself being present can be made only for good reasons. Any general order for an indefinite period or a routine practice requiring oath being made and subscribed before someone else and not the Governor can only result in defeating the provisions of the Constitution. Consequently, every time that an appointment is announced and the question of making and subscribing of oath arises the Governor has to apply his mind and decide whether, he would like the oath to be made and subscribed before himself or would appoint someone else to do so. He is the best judge to decide which course he would adopt but the matter should receive his attention on every occasion. We have already said above that the expression 'in that behalf in the context in which it is used means 'for that sake' or for the purpose of witnessing the oath being made and subscribed by the particular person who is appointed to be a Judge. For these reasons we are of the opinion that the Governor should not have made a general authorisation as he did by means of the letter addressed to the Chief Justice dated 25-8-1963.'

With great respect to the learned Judges, I could not subscribe to this view. For one thing, it proceeds on the assumption that once a person is appointed by the Governor in exercise of his powers under Article 219 which is similar to Article 188, the Governor abdicates his powers, which assumption, as I have already held, is not correct and the Governor still retains his powers. The question of deciding on each occasion as to whether he would do it himself or have it done by others, does not arise at all. Secondly, the learned Judges themselves have interpreted the words 'in that behalf as meaning 'for that sake' or for the purpose of witnessing the oath being made and subscribed. But, however, the learned Judges arrived at the conclusion that these words also imply the witnessing of oath of a particular person or persons. I have no doubt that the use of the words 'In that behalf in no way restricts the power of the Governor to appoint one or more persons either by name or by designation for a particular period or for an indefinite period, provided it specifies that they are appointed in exercise of the powers under Article 188 and for the purpose of any and every member of the Assembly or the Council, as the case may be, to make and subscribe their oath or affirmation. The contention of the petitioner in this regard is, therefore, not acceptable.

17. I am also unable to agree with the contention of the learned Advocate-General that the function of the Governor under Article 188 is also one of the functions to be exercised by the Governor on the 'aid and advice' of the Council of Ministers or at least one to be done on, his own discretion and, therefore, by virtue of Articles 163 and 361 the exercise of the discretion by directing the petitioner to go before the person appointed by him under Article 188 could not be questioned in a Court of law either directly or indirectly.

18. The executive power of the State is under Article 154 vested in the Governor. Article 163 states that --

'There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.'

Whether any and if so what advice was tendered by the Ministers to the Governor, is not a matter which could be enquired into by any Court. So far as the discretionary matters are concerned, on the question whether any matter is or is not one in respect of which the Governor is required under the Constitution to act in his discretion, the decision of the Governor in that regard is final and the validity of anything done by the Governor on the basis of his decision shall not be called in question on the ground that he ought or ought not to have acted in his discretion. This has been so provided under Article 163. The immunity given to the Governor under Article 361 against answerability to any Court is in respect of 'the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties.' A combined reading of Articles 154, 163 and 316(1) in my opinion, would show that the immunity against answerability to any Court is in respect of the functions exercised by the Governor/ qua-Governor and those functions in respect of which he is bound to act on the aid and advice of the Council of Ministers, or a function which he could exercise in his discretion. I am not to be understood from the above statement that anything done by the Governor which we may call it as not provided or authorised under the Constitution or acting in excess of the powers conferred under the Constitution, will not be actions of the Governor. Nor any actions of the Governor which may be considered even as contrary to the provisions of the Constitution, could be considered as one which could be questioned in a Court of law.

18A. Under Article 188, a duty is cast on every member of the Legislative Assembly or Legislative Council of the State, on pain of penalties provided under Article 193, before taking his seat, to make and subscribe an oath or affirmation according to the form set out for the purpose in the III Schedule before the Governor or some person appointed in that behalf by him. The performance of this duty by the member, though required to be done before the Governor or some persons appointed in that behalf by him, the witnessing of the oath taking under that Article by the Governor, in my opinion, is not and could not be held as one of the functions in respect of which the Governor was required either to act on the aid and advice of the Council of Ministers or even as a constitutional function to be discharged by him at his discretion. In fact, there may be occasions when there is no Council of Ministers to aid and advice as in the case of the first Constitution of the State Assembly or when the State Ministry is dismissed or dissolved and the President's rule imposed. When new house is formed, the members have to take and subscribe the oath under Article 188. The Constitution therefore requires the member to make and subscribe an oath or affirmation before an individual authority nominated by it. While referring to that authority, the Constitution has referred to it by reference to the designation or office of the authority instead of naming a person. The effect, however, is the same. The making and subscribing of the oath or affirmation is to be before the individual gentleman concerned who for the time being is holding that office and riot the Governor as such. For instance, under Article 60 and Article 159, the President and the Governor respectively are required to make and subscribe an oath or affirmation in the presence of the Chief Justice of India or the Chief Justice of the State, as the case may be. In my opinion, the Chief Justice by being present there could not be considered as discharging any of the functions as Chief Justice. Thus, the Governor, so far as Article 188 is concerned, is in the same position as some person appointed by him in that behalf. In legal parlance, we may call him a persona designate. He does not even administer the oath or affirmation as in the case of Articles 75(4) and 164(3). He is merely a witness to the making and subscribing of the oath. In fact, a somewhat similar question came up for consideration in a different way in the decision reported in Thankamma v. Speaker, T. C. Assembly AIR 1952 Trav-Co 166. The Speaker of the Travancore-Cochin Legislative Assembly was appointed by the Governor as the authority before whom any member may make and subscribe the oath of affirmation. The Speaker refused to permit a member to take an oath before him. When the member filed a writ petition under Article 226 against the Speaker for a direction to the Speaker to allow her to take the oath before him so as to enable her to take a seat in the Assembly, the Speaker took up an objection to the maintainability of a writ petition relying on Article 212 of the Constitution. It may be recalled that Article 212 prohibits the Courts from enquiring into the validity of any proceedings in the Legislature of a State on the ground of any alleged irregularity of procedure and it also provides that --

'An Officer or Member of the Legislature of a State in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order in the Legislature shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers.' The learned Judge who decided the case overruled this objection holding that in allowing or not allowing a person to take the oath, the Speaker is not discharging any constitutional function as a Speaker. and he was not acting in his official capacity and that, therefore, he will not be immune from proceedings in Civil Court. I am in entire agreement with this view of the learned Judge. The analogy of the Speaker is very apposite. as the immunity provided to the Speaker in respect of the conduct of the business of the Assembly is also similar to the immunity provided to the Governor under Articles 163 and 361 of the Constitution. I am, therefore, unable to agree that Articles 163 and 361, are a bar to going into the question as to whether the petitioner had complied with the provisions of Article 188 of the Constitution or whether he could insist on taking the oath before the Governor.

19. Further, the petitioner's grievance is that on the 22nd April when he met the Governor and expressed his desire to make and subscribe his oath before him, the Governor was not unwilling to allow him to take the obligation before him. It is only the first respondent who would not carry the necessary papers before the Governor in order to enable him to lake the oath before the Governor. The burden of the song of the petitioner throughout had been that the Secretary had been standing in the way of his taking the obligation and functioning as a legislator. He further contended that even the executive could not prevent him from functioning as a legislator either directly or indirectly. By the letter dated 24-4-1978, the first respondent informed the petitioner that he had sufficient opportunity to take the oath or affirmation before the Chairman pro tem either in his chamber or as the meeting of the Council on 24-4-1978 and it was not possible to comply with his request to make arrangements enabling him to take oath before the Governor. This letter did not purport to be a Government Order so as to enable the learned Advocate-General even to invoke the provisions of Articles 163 and 361. It is simply a D. O. letter written by the Secretary of the Legislative Council department to the petitioner informing him that the request in the petitioner's letter dated 22-4-1978. could not be complied with. The words 'I am directed' in the context in which they occur in this letter could only be understood as a direction from some authority superior to him as Secretary of the Council and could not be interpreted as a direction either by the Governor or by the Government. The letter itself does not mention as to why it is not possible to comply with the request of the petitioner except stating that he has got sufficient opportunity to take the oath or affirmation before the Chairman pro tem appointed for the purpose under Article 188of the Constitution. It did not mention that either the Governor on the advice of the Government or in exercise of his own discretion had expressed his unwillingness to permit the petitioner to make and subscribe his oath before the Governor. Having not done so in that letter it is now not possible for the respondents to bring an additional ground so to say to the effect that the petitioner's letter was submitted to the Governor, the matter was then examined by the Government and the orders of the Governor were obtained on 23-4-1978. The Supreme Court in Mohinder Singh v. Chief Election Commr. : [1978]2SCR272 had in fact deprecated this procedure and held that (at p. 858) --

'When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons as mentioned and cannot be supplementled by fresh reasons in the shape of affidavit or otherwise.'

Apart from this, the Legislature is entitled to function untrammelled by any interference by any person or authority. Neither the Secretary nor even the Chairman protem can interfere or obstruct or even delay a member taking the oath as required by the Constitution and discharging his functions as a Legislator. In fact, the petitioner spent a large portion of his argument on the bureaucratic attitude of the first respondent and those whom he is said to have consulted; but I could not refer to this part of the argument in detail as that would lead nowhere. The petitioner's contention is that substantial compliance with Article 188 is enough and in fact, there was substantial compliance with Article 188 and the relief to be given is only against the Secretary, Legislature, so that the petitioner could be permitted to sign the roll of members, take a seat in the Legislative Council, and enter duties as such legislator. In those circumstances, he had neither questioned the authority, of the Governor in the matter of his appointing somebody in exercise of the powers under Article 188 nor his discretion, if any, to allow a Member to take the obligation before him. The question of maintainability of the writ petition on the basis of Articles 163 and 361 therefore, does not even arise for consideration at all.

20. The learned Advocate-General also took objection to the maintainability of the writ petition in the form in which the relief is prayed for. The argument was that in effect, the prayer in the writ petition was for a declaration of the petitioner's title to an office, namely, a Member of the Tamil Nadu Legislative Council and such a declaration where the validity of a statute or a statutory provision or a rule is not involved and where it is not also one which is consequential to that of the normal, known as prerogative writs of certiorari, mandamus, prohibition and quo warranto, could not be granted in proceedings under Article 226 of the Constitution. In other words, the argument was that these writ proceedings could not be converted into or equated to a declaratory suit. It is true that normally such declarations are associated or consequential to the declaration of the invalidity of a statutory provision or rule or an illegal action taken on the assumption of the jurisdiction which is not vested in the authority. But the Supreme Court had been repeatedly holding that Article 226 of the Constitution gives this Court very wide discretion in the matter of framing of the writs to suit the exigencies of particular cases and the application of a petitioner cannot be thrown out simply on the ground that either none of the well-known prerogative writs can afford an adequate or appropriate remedy to the person nor on the ground that the proper writ or declaration has not been prayed for.

21. The Supreme Court in the decision in K. K. Kochunni v. State of Madras : AIR1959SC725 had held that in exercise of the powers under Article 32 or 226 the Courts are not fettered by the procedure and technicalities of the writs in English law and that the jurisdiction of our Courts is wide enough even to make a declaratory order where that is the proper relief to be given to the aggrieved party. That the Article itself contemplates such a declaratory relief is clear from the fact that even the well-known proceeding of quo warranto is available under Article 226. Quo warranto is laid against a person who claimed of usurped an office, franchise or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined. In effect, it is a remedy which is used to try the civil right to a public office, as has been held by the Privy Council in Hamid Kasan v. Banwarilal Roy AIR 1947 PC 90. The procedure of quo warranto is converse of the type of the writ petition filed in this case. The petitioner had claimed a declaration against deprivation of his office to which he has a right.

22. In the decision of University of Mysore v. Govinda Rao : [1964]4SCR575 , a petition for a writ of, quo warranto was filed by one Govinda Rao calling upon one Anniah Gowda to show cause as to under what authority he was holding the post of a Research Reader in English in the Central College, Bangalore. In the same writ petition, he also prayed for a writ of mandamus or other appropriate writ or direction calling up the University of Mysore to appoint him Research Reader. He succeeded in getting a declaration that the appointment of the respondent was not valid and that he was entitled to be appointed. That decision would show that when a person is deprived of his office to which he may have a right, he could file a writ petition in the form of a quo warranto if any person had already been appointed in that place and if not, for a declaration that he was entitled to it. If in a quo warranto proceeding, the validity of appointment of a third party could be questioned and a declaration obtained, I do not see why the petitioner himself cannot ask for a declaration of his title to the office.

23. I doubt very much whether there Is any other remedy available to the petitioner at all in this case apart from the remedy under Article 226. Certainly, the relief which he had asked for in this proceeding could not be asked for in a suit under Section 9. C. P. Code or Section 42 of the Specific Relief Act, as the validity of the appointment under Article 188 of the second respondent as well as that of the Chairman and Dy. Chairman of the Tamil Nadu Legislative Council is (sic-not?) questioned as ultra vires of the Constitution. Important questions as to the interpretation of the Constitution as also the scope of the immunity of the Governor under Articles 163 and 361 are involved. In those circumstances, the petitioner was certainly within his right in invoking the jurisdiction of this Court to determine those important questions even if there was any such right to file a suit. I am, therefore, of the opinion that the argument of non-maintainability of the writ petition is untenable.

24. This leads us to the question as to whether the mandate of making and subscribing to the obligation or affirmation before the Governor or some person appointed by him should be strictly, formally and in terms of the Article complied with, or under some justifiable circumstances, a substantial compliance with the provisions of the same may be taken as a compliance with the requirements. The word 'oath' means and is normally understood in legal parlance as meaning an oral declaration of a statement in the name of God. The purpose of the Article read with the language used and the form prescribed in the III Schedule also would show that this word has been used in the Constitution in the same sense. The word 'affirmation' also has the same meaning except that the statement or declaration is made in such a case as the solemn affirmation and not in the name of God. The Article further requires that the oath or affirmation should be made and subscribed. The words 'make' and 'subscribe' in the Article indicate that the declaration of the oath shall be reduced to writing and signed in token of acceptance of the same. The word 'subscribe' itself means, to write under something or to give consent to something written by signing one's name underneath. In the decision in Shabbir v. State : AIR1965All97 , these words used in the context in Article 319 were understood as meaning --'......In the Concise Oxford Dictionary the following meanings, amongst others, have been given to the word 'subscribe'--

'Write one's name or rarely other inscription at foot of document etc. Write one's name at foot of, sign (document, picture etc.).

2. Express one's adhesion to an information or resolution.' The use of the word 'subscribe' would show that the oath repeated orally should be reduced to writing and be signed by the person taking it in token of his adhesion to what is written. The word 'subscribed' is not correlated with the particular form but with what is, said in the oath and what is reproduced in writing. Even if a wrong oath is taken and its reproduction is signed by the person making it, it would still be an act of subscribing though not a correct oath. Consequently, in our judgment, this submission of the learned counsel is unfounded.

25. Thus, the Article requires the declaration to be in the form set out in the III Schedule and should be read before the Governor or some person appointed by him in that behalf. It is enough if the declaration is read by the Member and it was not necessary to administer the oath by any authority to the Member. Wherever the Constitution required that the oath or affirmation has to be administered, it specifically mentions; for instance Article 75(4) requires the oath of office and of secrecy to be administered by the President to a Minister before he enters upon his office. Similarly, Article 164(3) requires the Governor to administer the oath of office and of secrecy in the form set out to every Minister of the State before he enters upon his office. Such requirement of administration of oath is not necessary where a person makes or subscribes to the oath or affirmation under Article 188.

26. The learned Advocate-General contended that the mandate under the Constitution to read the declaration in the form prescribed before the Governor or some person appointed by him, cannot be said to have been complied with by a deemed compliance or substantial compliance, under no circumstances. In any case, it was his case that on the facts of the present case, the petitioner could not be said to have substantially complied with the provision in Article 188. If we analyse the provisions, Article 188 requires (1) that the writing of the oath or affirmation shall be according to the form set out for the purpose of the III Schedule; (2) that the Member shall make and subscribe the oath or affirmation which, as I have already stated, means, that he should read the declaration and sign under the writing as a token of acceptance, and (3) that the requirement that making and subscribing shall be before the Governor or some person appointed in that behalf by him show-: that somebody should witness the oath being made and subscribed by the member.

27. If we analyse the form set out in the III Schedule, it may be seen that the oath or affirmation shall contain words to the effect (i) that the member shall bear true faith and allegiance to the Constitution of India as by law established; (ii) that he shall uphold the sovereignty and integrity of India; and (iii) that he will faithfully discharge the duty upon which he was about to enter. In my opinion, the inclusion of these three declarations in the oath or affirmation and the signing of the same in acceptance thereof is the most important and substantial part of the requirement of Article 188. Subscribing to the oath before the Governor or a particular person is, in my opinion, required only for the purpose of witnessing the oath being made, so that it could be put as a record and put the question as to whether a Member did take the oath or not beyond the purview of any dispute. In fact, the Rajasthan Legislative Assembly Debates dated 13-12-1956 and the Madhya Pradesh Assembly debate dated 8-7-1957, which are referred to in the book 'Practice and Procedure of Parliament' by M. N. Kaul and the passage at page 271 of that book wherein it is stated that the decision of the person before whom as to whether oath or affirmation is properly made or not is final, clearly show the intention and purpose of the requirement of making and subscribing the oath before the authority. Even with reference to the contents of the form, in cases where the oath or affirmation is made and subscribed in some language other than English we find there are certain modifications. In Gujarati, Bengali. Punjabi, Malayalam, Tamil and Telugu, the form follows versions different from those given in the translations of the Constitution in the respective languages -- vide Kaul's Practice and Procedure of Parliament, page 270. Even when the oaths or affirmations are made and subscribed in these forms, it was taken as substantial compliance. The Article in terms does not require the oath and affirmation to be made and subscribed in the house itself. It could be done outside and there is no prohibition of the same being done outside. In fact, the practice and procedure adopted in Parliament and in the Assemblies, as noted by Kaul in the book above referred to show that there were many occasions when it was done outside the House. Further, the Representation of the People Act does not prescribe any educational qualification for being a Member of Parliament or a member of the State Assembly or Council. In fact, it does not appear that even a dumb person is prohibited from becoming a Member of Parliament or State Assembly. In such a case where a Member could not read the oath or affirmation and the Constitution is silent as to how the oath is to be taken, the practice appears to be in such cases for an authority to read the oath and require the person to sign the affirmation in token of acceptance. The requirement that the oath shall be made and signed before a particular authority is also found even in the case of a candidate when he files his nomination. The witnessing of making the oath and certifying the same is thus clearly for the purpose of proof that the oath or affirmation was made and signed by the Member and it does not attach any more sanctity to the declaration. It is sometimes said, as in the decision in Shabbir v. State : AIR1965All97 , that the gravity and solemnity of the oath are enhanced if it is made and subscribed before the highest officer of the State, and its value is reduced if the person before whom it is made does not enjoy the highest status. I am unable to agree with this proposition. While I certainly agree that the oath or affirmation should be made and subscribed as a solemn declaration without belittling the importance of the promise made through the oath and affirmation, merely by adopting simplicity and making the proceedings informal, the provisions of Article 188 could not be said to have been not strictly followed. What is more important is the understanding by the Member of what he is subscribing to, and his sincerity in making the declaration and signing the same. If there are unimpeachable evidence and circumstances which show that the Member in spite of his best efforts could not comply strictly with the letter of Article 188, but had with a full understanding and implications of the contents of the oath or affirmation signed the same and sent it to the authorities concerned and there was no dispute about his making the oath or subscribing to the same or his understanding of the contents of the oath, I should certainly consider that the Member shall be deemed to have complied with the provisions of the Article 188. I am not to be understood as belittling the importance of making and subscribing before a particular authority or making the provision in Article 188 as an empty formality. The declaration of faith and allegiance to the Constitution, the undertaking to uphold the sovereignty and integrity of India and the obligation taken that he will faithfully discharge the duty upon which he is about to enter are great acts or declarations of the Members and one could certainly desire such acts and declarations to be done in the open and before some authority. But at the same time we cannot shut our minds to a possible situation, where he could not take that obligation before a particular authority, though he had done all that he could do. In that sense, if the Member had consciously made and subscribed fully, understanding the implications thereof, and there was no dispute about the factum of his signing the declaration in the form prescribed, I consider it just and reasonable to hold that the Member had substantially complied with the provisions of Article 188.

28. In fact, a somewhat similar question came up for consideration in the decision in V. R. Sutarjia v. N. P. Bhanvadia : [1969]2SCR627 . There, a returned candidate had filed three nomination papers with three different proposers. Each of the three nomination papers clearly mentioned that he was a candidate for election to fill a seat in the Vidhan Sabha for the Gujarat State i.e., the Legislative Assembly of the State. The nomination papers of the returned candidate contained a form of oath or affirmation which was both in Gujarati as well as in English. The English form followed word for word form No. VII as set out in the In Schedule to the Constitution and the Gujarati form, however, purported to set out the Gujarati translation of the form of oath or affirmation but with the difference that instead of using the words 'Legislative Assembly' the translated words in Gujarati form as 'Rajya Sabha' were used. The evidence of the candidate that he had taken the oath not according to the words in Gujarati form but according to the translation of the words, in English was not accepted, so that, it is to be taken that the candidate took the oath or affirmation in the Gujarati form, but the contents of the form did not conform to the real translation of the English form but mentioned the House as Rajya Sabha, which means Legislative Council and not Legislative Assembly. On the question whether this was enough compliance with the requirements of Article 173(a) of the Constitution which required the making and subscribing before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpopse in the III Schedule, the Supreme Court held that the real purpose of the oath is that the person concerned must give an undertaking to bear true faith and allegiance to the Constitution and uphold the sovereignty and integrity of India. Since the essential requirements of the oath given in the form in the III Schedule were not deviated from the Gujarati form used in the case, the Supreme Court further observed that it could not be held that the oath subscribed in the case was not in compliance with Article 173, merely because of the popular meaning of the expression 'Rajya Sabha'.

29. The learned Advocate-General argued that the case will have to be understood with reference to the facts in that case. In Gujarat, there was no Legislative Council. When the oath was taken in Gujarati with the words 'Rajya Sabha', it could refer only to the Legislative Assembly and in other respects, the form complied with the form prescribed under the Constitution. There was also no dispute about the reading of the form before the person authorised in that behalf by the Election Commission. It is in those circumstances, the Supreme Court held that it was substantial compliance. But I am unable to agree with this line of reasoning of the learned Advocate-General. As already stated, the Supreme Court definitely stated that the real purpose of the oath is that the person concerned must give an undertaking to bear true faith and allegiance to the Constitution and uphold sovereignty and integrity of India. That was contained in the Gujarati form of the oath taken. Thereafter the Supreme Court as a general proposition stated (at p. 768) --

'......There have been many instances where this Court has held that a substantial compliance with the statute or with the rules framed thereunder is enough even if there be no literal compliance and in our view, there is no reason to adopt a different line of reasoning in the construction and interpretation of the Constitution. In all such cases, one must consider the real purpose of the provision whether statutory or constitutional, to find out whether notwithstanding the apparently mandatory form of the words used any deviation therefrom was to be struck down.'

30. The passage quoted above is very apposite and is a clear authority for the position that even in the case of Article 188, a substantial compliance should be considered as sufficient to enable a member to take the seat in the Assembly or the Council as the case may be.

31. In the instant case, the facts show: (1) The petitioner had presented himself in person before the Governor on 22-4-1978 and offered to take and subscribe the oath in the form prescribed before the Governor. (2) The Governor was not unwilling on that day to permit the petitioner to make and subscribe to the oath before him if necessary arrangements could be made. (3) The Secretary to the Tamil Nadu Legislative Council, the first respondent herein, by a letter of the petitioner dated 22-4-1978, was informed about the petitioner meeting the Governor, and his willingness to allow the petitioner to make his obligation before him, and he was requested to make the necessary arrangements enabling the petitioner to take the oath before the Governor 'by tomorrow the latest.' (4) The Secretary failed to make the necessary arrangements and was taking an obstructive attitude in consultation with the authorities that be and the petitioner was prevented from taking and subscribing to the oath before the Governor. (5) The petitioner has already deposited the originals of the declaration of his election as a Member of the Tamil Nadu Legislative Council from the Madras District Graduates' Constituency with the Secretary of the Council on 22-4-1978 and even if there is any dispute on the fact of such deposit of declaration, there was no dispute that he was a duly elected Member from the Madras District Graduates' Constituency in the election held on 9-4-1978. (6) The petitioner was previously a Member of the Legislative Council for a long time and is a senior Member of the Bar. He has with full knowledge and understanding of the obligation, undertaking and implications of the oath and the consequences of the breach thereof, made and subscribed, to the oath in the form prescribed in the III Schedule to the Constitution and sent the same to the Governor who is one of the authorities! before whom the making and subscribing to the oath could be done. (7) There1 was no dispute that the oath sent to the Governor in duplicate was factually made and subscribed by the petitioner. (8) In his letter dated 27-4-1978 enclosing the oath duly signed in duplicate to the Governor, he had referred to the circumstances under which he had to make and subscribe to the oath, not before any particular authority, but by himself and had stated: 'Should you, however, desire that I should call on you in person and read out my oath before you, I shall be happy to do so if I am intimatedthe time and place for the purpose.' (9) The petitioner had not received any requisition from the Governor calling upon him to appear in person and read out [the oath before him. (10) In the affidavit filed in this court and even in his arguments, the petitioner had accepted that he had signed the oath in the form prescribed in compliance with Article 188 and sent the same in duplicate to the Governor which would amount to an admission and conclusive proof of making and subscribing the oath in the form prescribed in the III Schedule to the Constitution.

32. I am of the view that on the above facts, the petitioner shall be deemed to have substantially complied with the provisions in Article 188 and he is entitled to sign the roll of Members of the Council and take the seat in the Tamil Nadu Legislative Council as a duly elected Member from the Madras District Graduates' Constituency without any further obligation on his part.

33. In the result, for the foregoing reasons, the writ petition is allowed as prayed for and the Rule Nisi is made absolute. No order as to costs.


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