T. Ramaprasada Rao, C.J.
1. The Secretary to the Government, Legislative Council Department, Madras, feeling aggrieved by the order of V. Ramaswami, J. in W.P. No. 1574 of 1978, has presented this writ appeal canvassing the correctness of the view of the learned judge that Mr. G. Vasantha Pai, the petitioner in the writ petition shall be deemed to have substantially complied with the provisions in Article 188 of the Constitution of India and that 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. The writ petitioner sought for a writ in the nature of a declaration declaring him as having performed his obligation by presenting himself before the Governor on 22nd April, 1978, to subscribe to the oath as required by Article 188 of the Constitution and having further informed the appellant by his letter dated 22nd April, 1978, to make the necessary arrangements for the making of the oath and subscription thereof before the Governor and having further on 27th April, 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, it necessary, by making 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 duly elected member. The writ petitioner was declared to have been elected under Section 66 of the Representation of the People Act. By a notification dated 15th of April, 1978, under Rule 84(1) of the Conduct of Election Rules, Mr. Vasantha Pai, the writ petitioner was duly declared to have been elected to fill in one of the seats in the Tamil Nadu Legislative Council, from the Madras District Graduates' Constituency. By a notification issued on 21st April, 1978, the election of the petitioner was notified in the Gazette. Mr. Pai, therefore, became a Member of the Council on and from 21st April, 1978, as per Section 157 of the Representation of the People Act. The writ petitioner however in order to complete the process of the election to enable him to take his seat, was contacting the appellant so as to make and subscribe before the Governor or some person appointed in that behalf by him an oath or affirmation according to the form sec cut for the purpose in the third schedule to the Constitution. On 19th April, 1978, Thiru K.S. Abdul Wahab, who was appointed as a pro tem Chairman of the Council as that office by then fell vacant, was appointed by the Governor under Article 188 of the Constitution as the person before whom the oath or affirmation may be made by the duly elected Members. The notification for the above purpose was made on 20th April, 1978, and the appellant caused such information to be transmitted to the duly elected Members. The writ petitioner consequent upon the above public information presented himself before the Governor and expressed his inability and indeed an objection of his to take such an oath before Thiru Abdul Wahab. According to the writ petitioner Thiru Abdul Wahab's stand earlier in the Council wherein he urged the then Chief Minister to follow the example of Mujibur Rehman in the event of the Government of India not conceding his demands, was extremely shocking and unconstitutional to him, and he, therefore, expressed his personal wish not to be asked to make and subscribe the oath as required before Thiru Abdul Wahab. The case of the petitioner is that the Governor informed him that though his objections were sentimental, he would however permit him to make the oath provided the appellant could place all the necessary papers before him and arrange for the formal swearing. According to the writ petitioner, he contacted the appellant, informed him of his interview with the Governor, also gave him in writing as to what transpired. He also requested the appellant, in consequence to make the necessary arrangements to enable him to make and subscribe to the oath before the Governor by the 23rd of April, 1978 so that he could sit in the House and participate in the election of the regular Chairman which was scheduled to be held on the 25tb of April, 1978. He secured only an interim reply from the appellant which was to the effect that his letter was under consideration. Thereafter on the 23rd April, 1978, the writ petitioner sent a wire to the Governor which reads 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.G.
This was followed by letter on the 24th to the Governor whereby he repeated his earlier request to the Governor to enable him to make and subscribe to the oath as requested so as to enable him to discharge his duties as a public functionary. The appellant in his subsequent letters to the writ-petitioner expressed that it was not possible to comply with the petitioner's request, as he had every opportunity to take the oath before the pro tem Chairman. The writ-petitioner was placed in such an unenviable position that notwithstanding the notification of the regular Chairman and Deputy Chairman to the Council made on 26th April, 1978 and notwithstanding also of the fact that the Chairman and Deputy Chairman have been duly nominated by the Governor as persons before whom the elected Members to the Council may take their oath under Article 188, wrote to the Governor on 27th April, 1978 enclosing a made and subscribed oath in the prescribed form stating that he has made and subscribed the oath for himself and was sending the same to the Governor direct in view of the delay caused in its making under Article 188. According to the writ petitioner he has discharged all his obligations and referring to the earlier events which transpired and referred to already, he requested the Governor to accept the oath made and subscribed by him as sufficient under Article 188. He also expressed his desire and his readiness and willingness to present himself in person and read out the oath if necessary in person. The appellant however on 28th April, 1978 consequent to the election of the Chairman and the Deputy Chairman to the Council and their nomination as the persons before any of whom the oath or affirmation may be made by the Members of the Legislative Council under the above Article, informed the petitioner about it and sought for information whether Mr. Pai would take the oath or affirmation as a Member before the duly elected Chairman so that he can fix a time for the purpose. The writ petitioner's stand was that he having earlier done what was expected of him in law and under the Constitution, be was entitled to sign the roll of Members of the House and take part in the conduct of the business of the Council. He filed the present writ petition to establish that stand.
2. It is common ground that after the writ petition has been allowed by this Court, the petitioner was permitted by the appellant, pursuant to orders of this Court, to sign the roll and the record discloses this fact.
3. The learned Single Judge of this Court has briefly summarised the facts appearing on the record as under.
1. The petitioner had presented himself in person before the Governor on 22nd April, 1978 and offered to take and subscribe to 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, first respondent herein, by a letter of the petitioner dated 22nd April, 1978 was informed about the petitioner meeting the Governor, and his willingnes to allow the petitioner to make his oath before him, and he was requested to make the necessary arrangements enabling the petitioner to make 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 had already deposited the original 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 22nd April, 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 Madras District Graduates' Constituency in the election held on 9th April, 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 breach thereof made and subscribed, to the oath in the form prescribed in the Third 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. There 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 27th April, 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 oat my oath before, you, I shall be happy to do so if I am intimated the 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 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 Third Schedule to the Constitution.
4. When the appeal came up for hearing the writ petitioner raised a preliminary objection that the appeal was not maintainable, as the appellant is not a person aggrieved and that the Court of Appeal cannot interfere with his fulfledged status as a Member of the Council, he having subscribed to the register and having been permitted by the appellant to sign the same. This is not a case in which the appellant, can be said to be a person, who can be a silent witness to the participation of a Member in the Legislative Council, if in his view such participation is in the teeth of Article 188 of the Constitution. As the Secretary of the Legislative Council, he is statutorily enjoined to see that all formalities mandated by law are satisfied before a duly elected Member can sit in the Council to participate in public debates. Though, no doubt, such participation is visited with a penalty on the member who has not complied with the requirement of Article 188 and who attempts to sit and vote before compliance with the prescriptions therein, yet it cannot be said in the instant case that the issue which is material in this case is not alive for a further adjudication by the Court of appeal. The appellant wishes to point out that he allowed the member to sign the register in due obedience to the orders of the learned single Judge of this Court and such an entry into the record in the absence of a prior compliance with, according to him of the guideline set in Article 188, enables him to canvass the correctness of conclusion of the learned Judge in appeal so that the record could be corrected, if a different view was possible. The conspectus of facts earlier referred to do have an impact on the exercise and performance of the powers and duties of the Governor. Bearing in mind, the protection granted to the Governor under Article 361 of the Constitution that he shall not be answerable to any Court for such exercise of power or his case whether the petitioner has acquired the legal status to participate in the deliberations of the Council being the subject-matter of this appeal can only be brought to the portals of the appellate Court by the Secretary of the Council. We are, therefore, unable to uphold the preliminary objection that the writ appeal itself is not maintainable.
5. The learned Advocate-General for the appellant stressed before us the following contentions.
6. Firstly, he would say that the Governor's function under Article 188 is not one which is exercisable by him in his discretion, but is an. act performed by him on the advice of the Council of Ministers and, therefore, the Governor-having acted on such advice and appointed his nominee it would be an executive act done by him within the meaning of Article 163(2) of the Constitution of India and such an act cannot be called in question on the ground that the Governor ought to have acted in his-discretion. In effect it is said that as the Governor while making the nomination under Article 188, has to act on the advice of his Ministers, the resultant of that act is unquestionable. Secondly, it is said that Mr. Pai not having made or subscribed to the oath in the manner contemplated under Article 188, he cannot be said to have complied with its terms, and in the alternative it is said that a substantial compliance of the intendment of Article 188, is not a valid substitute for proof of compliance and in that sense the doctrine of substantial compliance accepted by the learned Judge cannot be sustained.
7. Contending contra Mr. Pai, appearing in person would say that even assuming that the Governor's delegation of powers or functions under Article 188, is wholesome and complete, the choice of making and subscribing the oath either before the Governor or his nominee is always with the elected member and in the peculiar circumstances of this case, it should be said that he has, in law and in spirit, substantially complied with the mandates as entered in Article 188. Mr. Pai, would not accept that the Governor while acting under Article 188 is exercising an executive function which necessarily involves consultation with the Council of Ministers. He would also say that it is a peculiar function exercised by the Governor which cannot be characterised to be one performed in his discretion. Viewed in this light, he would say that the Governor was only expected to be instructed and informed of the making and subscribing of the oath and that having been done in this case, there is such substantial compliance as found by. the learned single Judge.
8. Before dealing with the contention of the learned Advocate-General that the Governor exercises an executive act, when he performs his duties under Article 188 of the Constitution, let us consider the scope of Article 188. The language of Article 188 makes it clear that every-member of the Legislative Assembly or the Legislative Council of a State shall, before taking his seat, make and subscribe before the Governor or some person appointed in that behalf by him, an oath or, affirmation according to the form set out for the purpose in the Third Schedule. The form prescribed read with Article 188, of the Constitution does mandate the Member to make and subscribe the oath before the Governor or some person appointed in that behalf by him. We shall, of course, consider the question as to what is the impact and scope of the parenthesis which is an alternative to such making and subscription of the oath before the Governor, that is, the making thereof before some person appointed in that behalf by him in the later portion of our I Judgment. On a fair reading of the provision, fit appears that the making and subscription of the oath should be in front of the Governor. This is not a case in which the oath is administered by the Governor as is provided for under Article 164(3) of the Constitution where the Governor is enjoined to administer to the Ministers the oath of office and of secrecy. The fabric of the process of making or subscribing the oath under Article 188, is a mandate directed against the member of a Legislative Council of a State. The making or subscription to the oath is only a prop to an event which has already been declared in law under the Representation of the People Act. Under Section 74 of the Representation of the People Act the petitioner has become a member of the Legislative Council and his term of office as such member had begun on and from 21st of April, 1978, as contained in the provision of Section 157 of the Representation of the People Act. Yet an additional statutory formality is required in order to impress on the duly elected member that he will bear true faith and allegiance to the Constitution of India as by law established and that he will uphold the sovereignty and integrity of India besides faithfully discharging the duties upon which he was about to enter. The additional notional safeguard is intended to infuse in the mind of the Member who is to make and subscribe the oath that he has certain extraordinary responsibilities other than the faithful discharge of his duties as an elected representative. The solemnity and gravity of the situation, therefore, rest upon the individual-member in making the oath before the Governor. He would also suffer a penalty if he sits or votes as a Member of the Legislative Council before taking the oath under the Article. These, wasps in the fabric of the process contemplated in Article 188 of the Constitution, no doubt, envisage a situation that the oath should be made and subscribed in the presence of the Governor. If however in a particular situation such making or subscribing before the Governor becomes impassible or the person, who is to abide by such prescription is placed in a situation that he is not able to make or subscribe such an oath before the Governor, the question is whether he is at all material times helpless. This is, of course, subject to the discussion to follow whether the Member has a choice in the matter or the oath has to be compulsively taken only before the person appointed in that behalf by the Governor. If for reasons hereinafter to be stated, it appears to us as it did to the learned single Judge also that the option is with the Member to be ready and willing to make and subscribe the oath before the Governor or his nominee, then the question arises that notwithstanding the use of the preposition 'before' in Article 188 whether such making and subscription could be done in an alternative manner provided such an adopted alternative is a reasonable but substantial substitute of the intendment of the mandate in Article 188. Though our conclusion on this aspect that the making of the oath should be in front of the Governor, yet it is a matter to be considered hereafter whether if such an oath is made and subscribed in a given set of circumstances which would amount to substantial compliance of the constitutional norm in Article 188 whether it would be sufficient.
9. At this stage it is convenient to consider the question whether the Governors act or function under Article 183 of the Constitution results in an act compelling him to consult the Council of Ministers under Article 163, or is it an act performed within his discretion, or is it a function which does not fall squarely within the above two specified compartments of exercise of power. In a Full Bench decision of our Court, in K.A. Mathialagan v. The Governor of Tamil Nadu (1973) 1 M.L.J. 131 : 86 L.W. 340 : A.I.R. 1973 Mad. 193 , while dealing exhaustively with the powers of the Governor under the Constitution and after having noted the dichotomy in the exercise of such power, when he has to act in consultation with the Council of Ministers and at other times when he can act in the exercise of his discretion, the Court said:
Historically therefore when in the Government of India Act, 1935, before its adaptation, functions of the Governor-General or the Governor were referred to specifically which they were expressly required to exercise in their discretion, and a similar exception finds a place in Article 163(1) it is reasonable to take the view that the exception has reference only to those functions of the Governor which he is expressly required by or under the Constitution to exercise in his discretion and that has reference only to the two instances of functions of the Governor in Schedule Six to the Constitution.
10. In Shamsher Singh v. State of Punjab : (1974)IILLJ465SC , the Supreme Court held that the Governor acts on the aid and advice of the Council of Ministers while performing an executive action and that even where the Governor has to act in his discretion i.e., on his own judgment, he has to act in harmony with his Council of Ministers. It is true, in the decisions referred to above, it was held that except in cases where the Governor is to act under the Constitution in his discretion, in all other cases he has to act on the aid and advice of the Council of Ministers. But we are not concerned in this case with any decision which the Governor has to take with the aid and advice of his Council of Ministers Nor are we concerned with any discretionary functions of the Governor where he has to act on his own judgment. We are here concerned only with certain specified functions of the Governor which is more or less ministerial and which he is enjoined to do under the Constitution. Article 188 enables a Member to take oath before the Governor or any person appointed by him in that behalf. As per the Article either the Governor himself or his nominee has to witness the oath taking by the Members of the Assembly or of the Council. If the said function of the Governor or his nominee has to be done under advice of his Council of Ministers it may happen that the Council of Ministers may advise the Governor not to function under the Article either by himself or - through his nominee, and the Governor acting on such advice may refuse to function. The result will be the members of the Assembly and the Council who have to take the oath before the Governor or his nominee on pain of being punished under Article 193 cannot obey the constitutional mandate that they must take the oath before taking their seat in the Assembly or the Council, as the case may be. In these circumstances, the Governor cannot refuse to function under Article 188 on the ground that the Council of Ministers has advised him not to act thereunder. Article 188 merely provides for a ministerial act to be done by the Governor and in doing such a ministerial act which he is enjoined to do under the Constitution the Governor is not acting on the advice of the Council of Ministers. No option or discretion is given to the Governor in witnessing the oath-taking by Members. Nor any decision by the Governor is involved in witnessing such oath-taking. Only in cases where an executive action is to be taken by the Governor, the question of his action on the advice of his Council of Ministers or in his discretion will arise. When no decision by the Governor is involved and when he has no discretion in doing a particular act referred to in the Constitution, he does only a ministerial act and not an executive Act under Article 163. Witnessing of the oath-taking by the Governor cannot in any sense be an executive function which is to be done by him on the advice of his Council of Ministers.
11. A discretionary power is normally conferred by words, but as pointed out by Halsbury's Laws of England, Fourth Edition (Hailsham), paragraph 28.
A duty unaccompanied by any discretion requires action is a prescribed manner and form to be taken when the conditions precedent exist; performance of such a duty is a mere ministerial act.
On a reading of Article 188 of the Constitution we are unable to cull out therefrom any compulsive obligation on the part of the Governor to act on the advice of the Council of Ministers in the matter of the nomination of alternative members to be authorised persons before whom the contemplated oath may be made or subscribed or in the matter of witnessing the making and subscribing of the oath himself.
12. It is no doubt true that, under the Business Rules and Secretariat Instructions issued by the Government of Tamil Nadu, in all cases where a Secretary in a Department has to submit papers to the Governor, he shall submit them only through the Minister or Ministers concerned and the Chief Minister, he being a Secretary to the Government. But that does not mean the Governor has to act as per the advice of the Ministers even in respect of ministerial acts which he is bound to do under the Constitution. On such an understanding of the situation, when the appellant as such Secretary forwarded the material papers in this case to the Ministers concerned so as to apprise them of the request of the member to take oath before the Governor, that act of his should not be understood as a reference made by him to the Council of Ministers for their advice which he could transmit ultimately as he did in this case to the Governor. As long as it is reasonable in the instant case to opine that a constitutional function exercised by the Governor as the repository of the Executive power of the State, does not come within the purview of Article 163 of the Constitution, and so long as it is not a power which under the Constitution he is required to exercise in his discretion, then a third modality under which the Governor might act could easily be comprehended by reason of the language of Article 163(2) itself. The provision in Clause (2) of Article 163 being a general one is not necessarily confined to the cases mentioned in the first part of the clause, namely, those 'Where a question arises whether any matter is or is not one in respect of which the Governor is required to act in his discretion'. There is, therefore scope for the Governor to act in a third direction which may not squarely fall within acts done by him or which ought to be done by him in consultation with the Council of Ministers, or acts or functions, done or exercised by him in his discretion. It is in this light that the observation in Halsbury referred to above, that such a performance of duty can be a ministerial act, has to be understood. Whatever may be the caption under which the subject could be dealt with, we are of the view that the exercise of power by the Governor for the specified purpose of nominating a delegate for vouching to the making and subscribing of the oath would be an act of his which slopes-from the ordinary functions of the Governor as the head of the State and we are unable therefore to agree with the contention of the learned Advocate-General that the function of the Governor under Article 188 is not an act of his performed in his discretion, but one in respect of which he is bound by the advice of the Council of Ministers, and that, as it transpires in this case, the Council of Ministers having advised him to nominate the present Speaker and the Deputy Speaker as the persons before whom the members may take oath, that would clinch the issue, and it is no more open to the member to exercise his choice of making such an oath before the Governor. Such a consultation, even if he had, would not exclude the power of the Governor as the delegator to accept such a making and subscribing of the oath, if circumstances compelled him so to do.
13. It is in this perspective that the question has to be considered, whether, on the facts and circumstances of the case, by the exercise of the choice, which, according to us and as hereafter explained, is still with the member to take the oath before the Governor in spite of the nomination by him, either by himself or in consultation with the Council of Ministers, there has been a substantial compliance with the constitutional prescription in Article 188 of the Constitution.
14. Prima facie Article 188 of the Constitution appears to provide for an absolute and mandatory prescription. Having regard to the fact that Article 193 imposes a penalty for not obeying Article 188, the latter Article should be taken to be absolute and mandatory and has to be strictly complied with. The words of Article 188 are imperative and Article 193, which makes non-compliance with Article 188 penal, should be taken to show the intention of the constitution-makers to have a rigid compliance with Article 188 before one sits as a member. As pointed out in 'Craies on Statute Law,' at page 262:
No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of a Court of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be considered.
15. However, the Courts have followed the practice of sanctioning the evasion or disregard of statute by treating them as merely directory and sometimes it has been carried beyond the line of sound discretion. This is based on the fact that strict compliance with all the minute details, which modern statutes contain, is impossible owing to the practical inconveniences likely to result from it and, therefore, the Courts with a view to free the latter from the reproach of harshness or absurdity are tempted not to enforce strictly all the provisions contained in statutes, but treat them as being merely directory. It is no doubt true that constitutional provisions are generally mandatory. But, having regard to the object with which the constitutional provision is made, it can sometimes be treated as merely directory. A constitutional provision, that writs and processes shall run in the name of the State or be under its seal, has been considered directory, although generally constitutional provisions are considered mandatory. Jump v. M. Clurg. 35 Mo. 193 (Vide - Footnote at page 535 of Crawford on Constitution). Whether the Legislature intended to create an imperative duty or allow a discretion in the matter depends upon the nature, objects and the construction of the statute itself. It is also well-established that there is a strong line of distinction between cases, where the prescriptions of the statute affect the performance of a duty, and where they relate to a privilege or power. Where powers or rights are granted, with a direction that certain regulations or formalities shall be complied with, it is neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred and it is therefore probable that such was the intention of the Legislature.
16. Article 188 of the Constitution requires every member of the Legislative Assembly or the Legislative Council of a State to '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'. Article 193 says that, if a person sits or votes as a Member of the Legislative Assembly or the Legislative Council of a State before he has complied with the requirements of Article 188, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees. Article 193 makes the intention of the Parliament quite clear, that the requirements of Article 188 should be complied with before a person wants to exercise his privileges and powers as a member of the Legislative Assembly or the Legislative Council. There cannot, therefore, be any dispute that Article 188 is mandatory and that its compliance should be taken to be a condition precedent before a person chooses to sit and vote as a member of the Legislature of a State. It is not in dispute that Article 188 had not been strictly complied with by the writ petitioner taking the oath before the Governor. Therefore, the only question is whether in the circumstances of the case the writ petitioner can be taken to have substantially complied with Article 188 of the Constitution. The writ petitioner's case that on 22nd April, 1978 there were two authorities before whom he can make and subscribe the oath or affirmation according to the requisite form, one the Governor and the other his nominee, Mr. Abdul Wahab, the pro-tem Chairman, that as his conscience did not permit him to make and subscribe the oath or affirmation before the pro-tem Chairman, whose idealogy and political ideas are quite different from his, he decided to make and subscribe the oath before the Governor, that on being approached by him the Governor expressed his willingness to permit his to make and subscribe the oath or affirmation before him, provided the necessary papers and registers were brought before him by the Legislature Secretariat, that on seeing the appellant to be a stumbling block between him and the Governor, he had no other alternative except to make and subscribe the oath himself according to the forms and sent it by post to the Governor and that in these circumstances he should be taken to have substantially complied with Article 188.
17. According to the learned Advocate-General however, once the Governor had appointed a nominee under Article 188, the oath cannot be made or subscribed before the Governor. It was also contended by the learned Advocate-General that, even if the Governor can function under Article 188, after he had appointed a nominee, still the option rests with the Governor either to exercise the power or not, and it is not open to a party to insist on the Governor exercising the power under Article 188. This contention of the Advocate-General, however, overlooked the language in Article 188 which uses the words 'before the Governor some person appointed in that behalf by him.' The language of Article 188 seems to suggest that both the Governor as well as the person nominated by him in that behalf can act under Article 188 and allow the oath to be made and subscribed before them.
18. According to the language of Article 188, the principle laid down in the decision in Hulk v. Clarke 25 Q.B.D. 391, will squarely apply. The principle laid down in that case was that an authority, who delegates its powers to another, does not denude himself of his powers and that the delegation does not imply parting with powers by a person who grant& the delegation. According to this decision, the person delegating can also exercise the powers even while the delegation subsists, provided that the person delegating remains responsible for the action of the delegate, if any. done as a delegate. In Ramiah v. Chief Secretary, Government of Madras I.L.R. : AIR1950Mad100 , a Division Bench of this Court followed the principle in Huth v. Clarke 25 Q.B.D. 391, and held that delegation does not imply a denudation of power or authority. In that case it was held that, though the power to pass an order of detention under Section 2(1) of the Maintenance of Public Order Act, 1947, had been delegated is he District Magistrates and Commissioner of Police by the State Government, the State Government can also pass an order of detention in spite of the delegation. On similar facts the Supreme Court also held in Godavari S. Parulekar v. State of Maharashtra : 1966CriLJ1067 , that, even though the State Government had delegated the power conferred on it under Rule 30 of the Defence of India Rules to all the District Magistrates in the State, they cannot thereby denude themselves of the powers to act under the rule, and that they would be competent to act under the rules even after they had delegated the powers thereunder to the competent authority. The following observation of Willis, J. in Huth v. Clarke 25 Q.B.D. 391 has been cited with approval by the Supreme Court in that case:
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.
19. Halsbury's Laws of England, Vol. I, 4th Edition, paragraph 32 (Page 34) says:
In general a delegation of power does not imply parting with authority. The delegating body will retain not only the power to revoke the grant, but also the power to act concurrently on matters within the area of delegated authority Huth v. Clarke 25 Q.B.D. 391, except in so far as it may have already become bound by an act of its delegate,
In the face of these authorities, it cannot be disputed that, notwithstanding the appointment of a nominee for the purpose of Article 188, the Governor can also act under Article 88 as he is not denuded of his powers under that Article. Therefore, the contention on behalf of the appellant that, once a nomination has been made for the purpose of Article 188 by the Governor, it is only the nominee who can act under Article 188 and not the Governor, cannot be accepted. The 1st respondent can, therefore, make and subscribe the oath in the requisite form either before the nominee or before the Governor. We have to, therefore, agree with the view taken by V. Ramaswami, J., in the order under appeal that both the Governor as well as his nominee can concurrently exercise jurisdiction under Article 188.
20. The question then is, if two authorities are available, before whom the oath can be made, who is to make the choice. According to the first respondent, the choice is with him and he can go before any one authority to make and subscribe the oath. Since he was not inclined to make and subscribe the oath or affirmation before the pro tem Chairman, he approached the Governor, and, according to him, the Governor was willing to permit the first respondent to make and subscribe the oath before him, provided the papers and registers were brought to him, but, as the papers and registers were not made available at the appointed time by the appellant, the 1st respondent had no other choice except to subscribe the oath in the required form and send it to the Governor by post, and this should be taken to be a substantial compliance of Article 188.
21. The learned Advocate-General would, however, say that, when at least one functionary is available and willing to do its duty no question of applying the principle of substantial compliance will arise, that in any event, the physical presence before the authority for the purpose of making and subscribing the oath being an essential requirement, the same cannot be dispensed with on any account, and that therefore no question of substantial compliance with Article 188, without there being physical presence, would arise.
22. It is true one of the requirements under Article 188 is presence of the person making and subscribing the oath before the Governor or the nominee at the time of making of subscribing the oath. But, if the appellant had made it impossible for the first respondent to make an oral affirmation before the Governor, then it can be assumed he (first respondent) was prevented from appearing before the Governor in person for making or subscribing the oath before him. Physical appearance of the first respondent before the Governor was made impossible by the appellant. It should therefore be taken that in the circumstances it was not possible for the first respondent to ensure his presence before the Governor for the purpose of making and subscribing the oath. Only when he found that he cannot go before the Governor to make and subscribe the oath the first respondent subscribed the oath in the form prescribed and sent it to him by post. At this stage, a distinction has 10 be made between cases where the Governor is to administer the oath and cases where the oath has to be taken by the person himself before the Governor. If the Governor is to administer the oath, then any other person administering he oath cannot be a compliance with the provision at all, but, where the party himself has to make and subscribe the oath before the Governor and it is found that it was not possible for the first respondent to go before the Governor for making and subscribing the oath in view of the stand taken by the appellant or the Government that the first respondent has to make and subscribe the oath only before the nominee and not before the Governor, strict compliance cannot be insisted, when every possible effort had been taken by the first respondent to ensure his presence before the Governor for making and subscribing the oath before him and when all those attempts failed, he had sent the form duly subscribed to the Governor. If the distinction between administration of oath to a person by the Governor and the oath being taken by the party himself before the Governor is borne in mind, the physical presence of the party before the Governor can be said to be merely directory. In these circumstances, we are of the opinion that the principle of substantial compliance can be invoked by the first respondent. As a matter of fact, it has been held by the Supreme Court, in Vijri Ram v. Nathalal (1970) 1 S.C.J. 546 : : 2SCR627 , that non-compliance with the provisions of a statute or Constitution will not necessarily render a proceeding invalid, if by considering its nature, its design and the consequences which follow from its non-observance one is not led to the conclusion that the Legislature or the constitution-makers intended that there should be no departure from the strict words used. In that case the form of oath in Gujarati language made and subscribed by a member of the Gujarat State Legislative Assembly under Article 173 of the Constitution contained a slight deviation from the form prescribed in English. The Supreme Court, notwithstanding the defect in the form actually subscribed by the member, held that, as the essential requirements of the oath given in the form in the Third Schedule were not deviated from the petitioner should be taken to have made and affirmed the oath substantially in accordance with Article 173. In this case the theory of substantial compliance has been accepted by the Supreme Court in the matter of nuking and affirming the oath under Articla 173. In Shabbir v. State I.L.R. (1964) All. 620, the principle of substantial compliance has been applied to the making and subscribing of oath by a Judge of the High Court under Article 219 of the Constitution. In that case it was specifically found that the general authorisation given by the Governor to the Chief Justice under Article 2l9 was sad and that there should have been a specific authorisation with reference to the persons who were to take oath before the Chief Justice. It was also found that the form of oath taken by the Judge was not the correct form. The Court held that, notwithstanding these irregularities the oath taken in that case was not vitiated. An oath made and subscribed before a person who had not been duly authorised under Article 219, was held to be not vitiated on the ground that there was substantial compliance with Article 219. We cannot see any reason as to why the principle of these decisions will not apply to this case. If the theory of substantial compliance can be invoked even in respect of a requirement prescribed in a constitutional provision, such as Article 188, then the only question is whether the first respondent has made out a case for invoking the principles of substantial compliance.
23. As already stated, whatever steps he could take for making and subscribing the oath before the Governor, he has taken, but it is because of circumstances beyond his control, he could not take the oath orally in the presence of the Governor and had to subscribe the oath in the prescribed form and send it to the Governor. When his presence before the Governor has been made impossible by the appellant or the Government in view of their stand that the oath can be subscribed only before the Pro-tem Chairman, while in fact the Governor had also the concurrent power under Article 188, the first respondent can invoke the principle of substantial compliance. Even in the letter enclosing the requisite form duly subscribed the first respondent offers to appear before the Governor to orally take the oath. Since the Governor has not called upon him to take the oath orally before him, the first respondent can assume that the form subscribed land sent by post had been accepted by him. Sin the peculiar facts and circumstances of the case, therefore, the writ petitioner should be taken to base substantially complied with Article 188 of the Constitution so as to enable him to sit in the Council as its member.
24. Two further contentions advanced by the Advocate General remain to be considered : (i) Article 361 is a bar to the writ petition and the said bar cannot be overcome by suitably framing the prayer; and (ii) the declaratory relief as sought for by the writ petition cannot be given under Article 226 of the Constitution.
25. As regards the question as to whether the writ petitioner is barred under Article 361, it is to be noted that the writ petitioner is not asking for relief against the Governor or calling in question any act of the Governor. His complaint is that though the Governor was willing to witness his oath-taking the appellant prevented the Governor from doing so and that by his conduct the appellant made it impossible for him to comply strictly with the provisions of Article 188. We have already held that the function of the Governor under Article 188 is not an executive act done on the said and advice of the Council of Ministers. We cannot therefore agree with the learned Advocate - General that by virtue of Articles 163 and 361 the exercise of the discretion by the Governor by directing the writ 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. We are also inclined to agree with Ramaswami, J. that a combined reading of Articles 154, 163 and 361 would indicate that the immunity against answerability to any Court is in respect of functions which he is bound to perform on the 'aid and advice' of the Council of Ministers or a function which he could exercise in his discretion.
26. As regards the contention that a declaratory relief cannot be granted in a writ petition and that such a relief could be granted only n a suit, it is well established by now, 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 the jurisdiction of our Courts is wide enough even to make a declaratory order, if that is the proper relief to be given to the aggrieved party Vide Kochunni v. State of Madras : AIR1959SC725 , C.K Allen in his book on 'Law and Orders', III Edn. At page 227 says that declaration as a from of action is neither supervisory, like the prerogative orders, nor appellate, though it partakes of the nature of both forms of remedy, that the action is peculiar in form, since it is not usually a lis inter partes enforceable by execution and that it merely declares rights and liabilities on existing state of facts. As page 229 the author says:
Decisions of non-statutory and even statutory tribunals are subject to declaration whether or nor (semble) other remedies are available; except that when legislation has prescribed a complete course of procedure, litigation and appeal, recourse cannot be bad to declaration in addition. A question of status, e.g., nationality or of members of the House of Commons or of a local authority may be established by declaration.
27. The this ease the petitioner has been elected a member of the Council and his right as such member is likely to be affected or infringed by the stand taken by the appellant that he had not taken the oath strictly under Article 18T He therefore approached this Court and sought a writ in the nature of a declaration that as he had substantially complied with Article 188, he is entitled to take his seat in the Legislative Council as a duly elected member from the Madras District Graduates Constituency without any further obligation on his part. In such circumstances the Court is not debarred from giving a declaratory relief it appears necessary in order to meet the ends of justice.
28. In the view we have taken that the Governor has concurrent powers to witness the oath-taking under Article 188 even after an appointment of his nominee, it is unnecessary to deal with the question raised by the writ-petitioner as to whether the appointment or the Chairman and the Deputy Chairman of the Council as nominees by G.O.Ms. No. 27, Legislative Council dated 28th April, 1978 is invalid for the reason that it lacks specificity as required by that Article.
29. For the foregoing reasons we see no ground for sustaining this Writ Appeal. The Writ Appeal is therefore dismissed. There will, however, be no order as to costs.