Oath: A Form of Constitutional Guidance to Resolve the Deadlock in the National Capital Territory of Delhi

Uday Shankar

Rajiv Gandhi School of Intellectual Property Law

Introduction

Mr. Arvind Kejriwal, the Chief Minister of the National Capital Territory of Delhi (NCT Delhi), surrendered to judicial custody after the completion of his interim bail period in the liquor Excise Policy case. Previously, he was taken into custody by the Enforcement Directorate for his alleged involvement in a personal capacity in the framing of policy and demanding kickbacks and for being in the capacity of national convener of AAP. Notably, the Chief Minister has indicated that he will continue in office and shall not resign. The decision to run the government of Delhi under judicial custody is unprecedented and may pose challenges for day-to-day governance. This raises the question whether the Chief Minister’s reluctance to resign might justify the Lieutenant Governor in dismissing him.  The Lieutenant Governor is appointed by the President as a constitutional head, enjoying similar power as of the Governor of the State. This post examines the possible justification of a decision to remove the Chief Minister, if it should happen, based on the reading of the Oath subscribed for the Offices of the Chief Minister and Lieutenant Governor.

Significance of Oath

The Constitution of India prescribes an Oath for the holders of Constitutional Offices. Significantly, the Oaths are placed at two different locations under the Constitution. One set is in the main body of the Constitution whereas the other sets are appended in the Schedule. The Oaths in the main body are for the Offices of President, Vice-President, and the Governor prescribed under Articles 60, 69 and 159. The Governor plays a dual role of the representative of the centre and Constitutional Head of the State Executive. The Oaths in the Third Schedule are for Ministers, Judges, candidates contesting elections for Parliament or State Assemblies and Members of Parliament and the State Assemblies. There is a visible difference between their content. The President and the Governor take an Oath to preserve, protect and defend the Constitution. The other sets of oaths relate to the Office of Secrecy, maintaining the confidentiality of the decision-making process in the meeting amongst the Ministers, and allegiance to the Constitution, except that taken by judges, who pledge to uphold the Constitution instead of Secrecy. Building an analogy based on the interpretation of statutes, the schedule is subservient to the text in the main body. It may be argued that the President and the Governor take their Oaths to undertake all necessary steps to maintain the supremacy of the Constitution. Therefore, it is clear that Article 60, 69 and 159 stand on higher constitutional ground than the Third Schedule. The different contents of these Oaths guide constitutional functionaries in resolving the crisis that occurs when there is no precedent to follow. Significantly, the Lieutenant Governor undertakes the same oath as the Governor.

The combined reading of all the Oaths embodies the principles of accountability and rule of law. Their explicit enunciation in the written Constitution signifies overarching ideas of reasonableness and transparency in every decision of the relevant office-holders. Dr. B. R. Ambedkar, head of the Constitution Drafting Committee, while elucidating the meaning of ‘violation of the Constitution’ under Article 56, stated that ‘(it) is a large one and may well include treason, bribery or other high crimes and misdemeanours, because treason is certainly a violation of the Constitution and bribery will be a violation of the Constitution because it will be violation of the oath by the President.’ The Oath is not an empty formality without any constitutional significance. The contrast in the forms of the Oaths between the President/Governor and the other Offices conveys the subtle message of the higher constitutional responsibility upon the former.

Power of the Governor to remove as per Oath

The Basic Structure doctrine under the Indian Constitution establishes the supremacy of the constitution and its values over democratic majorities in Parliament or State Assemblies. This includes imposing limits on majority rule based on values such as the rule of law. Applied here, this suggests that government should not be run by a Chief Minister who is in custody under court order.

Oaths under the Constitution carries negative and positive characteristics. The negative one suggests that breach of the Oath should have certain consequences whereas the positive one refers to reactive action to protect the inherent attributes of the Oath. Office-holders are duty bound to act in a timely manner to save the values of the Constitution. While articulating the significance of the Oath, the Kerala High Court stated that ‘Breach of oath requires a termination of the tenure of office. The decision to terminate, in pursuant to the Oath, should be exercised by the appointing authority instead of a Court…’

The Oath undertaken by the Governor contains a solemn duty towards the Constitution and not to the electoral democracy represented by the Chief Minister. The sanctity of electoral democracy is owed to and shaped by the Constitution. The Oath to preserve, protect and defend is very decisive and thus guides the Governor in situations of deviation and defiance. It is not only about the duty of the Chief Minister to be available to undertake their responsibilities, but also about discussion and engagement with every stakeholder in the decision-making processes of the government. For instance, Rules 8 and 13 of the Transaction of Business Rules expects the presence of the Chief Minister when passing an order in reference to the proposal of a Minister. Rule 25 makes the Chief Minister responsible for presiding over meetings. The CM must provide any necessary information relating to administration or proposals for legislation called by the Lieutenant Governor. As stipulated in the Transaction of the Business Rules, the physical presence of the Chief Minister is an absolute necessity to discharge his official functions.   

Nor would the removal of the Chief Minister demean the right of the elected government to run the affairs of the NCT. The power of the Lt. Governor is limited to the removal of the sitting Chief Minister and he would be bound to administer the Oath to the new leader elected by the ruling party.

Conclusion

Whilst there are legal limitations on appointing Ministers with criminal convictions under Section 8A of the Representation of Peoples' Act 1951, the functioning of the Constitution transcends legal prescription. It requires conviction in and commitment to the values of the Constitution that are reflected in the language of the Oath. The Oath should guide the resolution of any issues in the day-to-day functioning of Government in Delhi, should they arise. This is a matter for the Lt. Governor alone; the judiciary should refrain from adjudicating the matter unless the decision is based on extraneous consideration or political preferences. Any elected representative, including a Minister or Chief Minister, is first and foremost a public representative. It is incumbent upon such office holders to embrace the values that come with this. In case the Chief Minister of Delhi refuses the resign, the Lieutenant Governor should act in furtherance to the Oath to protect the Constitution.

Uday Shankar is an Associate Professor at Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology Kharagpur.

Suggested Citation: Uday Shankar, ‘Oath: A Constitutional Guidance to resolve the deadlock in the National Capital Territory of Delhi' IACL-AIDC Blog (11 July 2024) Oath: A Form of Constitutional Guidance to Resolve the Deadlock in the National Capital Territory of Delhi — IACL-IADC Blog (blog-iacl-aidc.org)