On the first day of the Assembly session in Maharashtra on November 30, former Chief Minister Devendra Fadnavis alleged that the oath-taking ceremony of the new government had violated the Constitution.
He was referring to the invocation — by Chief Minister Uddhav Thackeray and each Minister — at the start of the oath, before reading out the text, which he alleged had altered the oath itself.
Rules being flouted, Assembly session not held as per Constitution: Devendra Fadnavis pic.twitter.com/jzMkzYZr4j
— The Indian Express (@IndianExpress) November 30, 2019
Thackeray invoked Chattrapati Shivaji and “my parents”; Eknath Shinde named Bal Thackeray, Ananda Dhige, a Thane Shiv Sena leader who died in 2000, Uddhav Thackeray, and Shivaji.
Subhash Desai invoked Bal Thackeray. Jayant Patil of the NCP invoked Shivaji and Sharad Pawar.
Chhagan Bhujbal began with Jai Shivraj, Jai Maharashtra, and invoked Mahatma Phule, Chattrapati Shahu, Babasaheb Ambedkar, Bal Thackeray, and Sharad Pawar.
Balasaheb Thorat took Sonia Gandhi’s name. Nitin Raut named Ambedkar, Sonia, Rahul Gandhi, and the Buddha.
In the Constitution
Article 164(3) says: “Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.” The Third Schedule requires the taker of the oath to either “swear in the name of God” or to “solemnly affirm” to “bear true faith and allegiance to the Constitution...”.
According to constitutional experts and those familiar with procedures and rules of swearing-in ceremonies, Art 164 makes it clear that the text of the oath is sacrosanct, and the person taking the oath has to read it out exactly as it is, in the given format. If a person wanders from the text, it is the responsibility of the person administering the oath — in this instance the Governor — to interrupt and ask the person being sworn in to read it out correctly.
Instances of deviation
The most famous case of a political leader changing the oath was in 1989, when Devi Lal inserted the words “Deputy Prime Minister” as he was being sworn in to Prime Minister V P Singh’s cabinet, and was corrected by President R Venkataraman.
In 2012, Azam Khan of the Samajwadi Party had to retake his oath in Uttar Pradesh after he skipped the oath of office, and only took the oath of secrecy.
According to former Maharashtra Advocate General Shreehari Aney: “It is the content of the oath that is important. That should be as per the format laid down in the Constitution. Addition something before or after the oath is not unlawful as long as the substance of the oath is unaltered.”
Aney, who was AG for some time when the Fadnavis government was in power, however, added that the “practice of invoking gods, national leaders, reformers, while administering the oath of office can be termed as immature, as it detracts from the importance of the oath”. But even so, Aney said, “it doesn’t flout constitutional requirements.”
Role of the Governor
The Governor’s approval is key. According to experts, if the person administering the oath approves the oath, the matter is closed. Immediately on taking the oath, the person who has been sworn in, must sign a register. The register is attested by the Secretary to the Governor, which means it has been approved by the Governor. In Maharashtra, that approval was also formalised by a gazette notification on the appointment of the Chief Minister and six ministers, which was issued on November 30.
“Ultimately it is the responsibility of the Chair, the functionary administering the oath, in this case the Governor [to correct]. Once Governor takes it as read, and the Secretary to the Governor has attested that the oath has been administered, and the gazette notification has come out, then it is no longer an issue, it cannot be legally challenged,” Shumsher Sheriff, former Rajya Sabha Secretary General, said.