LAW RESOURCE INDIA

What’s in an oath?

Posted in CONSTITUTION, DEMOCRACY by NNLRJ INDIA on November 12, 2009

BY RAJEEV DHAWAN , SENIOR ADVOCATE  IN THE INDIAN EXPRESS

The unnecessary controversy over Abu Asim Azmi taking his oath in the Maharashtra assembly has eclipsed the issue of taking action against the goondaism that brutally disrupted proceedings in the House. Should such action go unpunished? And, remain uncorrected? Are such blemishes in India’s parliamentary democracy to remain? There can be little doubt that such action constitutes a breach of privilege. The cameras recorded the entire embarrassment of events. They can identify exactly who is responsible for what. No democracy can survive to maturity if this kind of nonsense holds it to ransom. The correct course of action is for the Speaker to issue breach of privilege notices to those who directly participated in this breach, as well as those who conspired to make it happen. This means notices should go to Raj Thackeray to ask him of his complicity in the conspiracy. If he says he was not part of the conspiracy to disrupt the assembly, he would knock himself down a peg or two on this issue. If he admits his involvement, he must be punished along with the others, albeit by token suspension for the legislators and censure for the non-assembly conspirators. At this stage, to punish by imprisonment would make martyrs of such persons. But, issuing process of breach of privilege is a must. Indian legislative democracy has been bruised too often. The fact that indisciplined elements may react with further disruptions is precisely the reason for issuing process promptly and dealing with the disrupters and conspirators wisely.

No institution, meeting or game can survive without the imposition of such discipline. Erring football stars are sent off the field. Cricketers are fined and banned. Court proceedings take place with dignity and free expression, precisely because of the law of contempt does not permit such disruption in the face of the court. It cannot take place at cabinet meetings — or any meeting for that matter. There is a time and place for protest. The legislative assembly is not a place for disruptive protest with impunity. Democracy works through governance by institutions. If the institutions collapse or become unworkable, democracy will also slowly collapse.

I now turn to the oath. The Third Schedule of the Constitution prescribes such an oath for all ministers, all legislators, judges of the high courts and Supreme Court, the comptroller and auditor general. The president’s oath is separately prescribed (Article 60), as also of the vice-president (article 69) and the governor (Article 159). There was always a Hindi version of the Constitution. But if there is any doubt, the 58th amendment mandates the president to publish an authoritative text of the Constitution and every constitutional amendment of it in Hindi (Article 394A). If someone wants to take their oath in Hindi, they are doing no more than following authoritative text of the Constitution itself!

It should not be necessary to go into the language policy of the Constitution. The Constituent Assembly wrestled with this question with a fear that separatist language demands could prove divisive. Mahatma Gandhi, who wrote evocatively in Hindi, English and Gujarati, put Hindi on the agenda. The Congress adopted a Hindustani (a mixture of Hindi and Urdu) policy in its meeting. When in 1946, R.V. Dhulekar insisted that the assembly’s rules be in Hindi, denying non-Hindi speakers the right to remain in the assembly, his intervention was cut short and a committee’s compromise of Hindi and English was accepted. With foresight, Ambedkar foresaw Hindustani being “Sanskritised” by Hindu writers and “Arabicised” by Muslim writers. The debate on Hindi and English was fast and furious to a point where tempers got frayed. While, initially, Nehru did not want a provision on language in the Constitution, and discussion on the future language to be used in Parliament and state legislatures was postponed, Munshi and Gopalaswami Ayyangar made proposals. In the debate over 300 amendments were made over Hindi, Hindustani, English and the state languages.

The initial constitutional compromise was to continue English for 15 years — to be replaced by Hindi as the official language, with the states being given freedom to develop their own language (Article 343). A National Language Commission would further these goals. Meanwhile, the states were reorganised in 1956 and 1966 on linguistic grounds. There are detailed provisions for both state languages (Articles 345 and 346) and special provisions for minority language within states in the Constitution (Articles 347, 349). Linguistic claims and minorities were to be protected (Article 29, 30 and 350B). The Eighth Schedule of the Constitution now recognises 22 languages which are to be developed and preserved. Hindi was to be developed drawing from Sanskrit and other state languages (Article 351). While parts of the Constitution are also a dustbin for expressing concerns, the language policy was pragmatic with a preference for Hindi and with protection for not just state languages, but those of the minority too. Hindi speakers in Maharashtra cannot be denied a constitutional choice.

The practice of various assemblies in India has concentrated on the content rather than the linguistic form of the oath. The important value attached to the oath is to defend the Constitution and accept the rule of the Constitution as not just the rule of law but also the rule of the heart. It is reported that in Madhya Pradesh and Punjab members have taken their oath in Sanskrit. In Chhattisgarh, MLAs took the oath in their own dialect. In West Bengal, so proud of Bengali, oaths have been taken in various other languages, including Nepali. In Andhra Pradesh, MLAs have taken their oaths in Hindi and Urdu.

Sometimes “oath-taking” in a particular language becomes a symbolic political statement. In Punjab, BJP MLA Lakshmi Kanta Chawla took his oath in Sanskrit — an odd favourite from time to time. In 2008 in Jammu and Kashmir, 11 members of the BJP insisted on oath taking in Dogri whilst Abdul Rashid took his oath in Kashmiri.

Most important to our present controversy is the fact that the Maharashtra Ekikaran Sangam members in Karnataka took their oath in Marathi. So, a Marathi speaker can take the oath in Marathi in some other state, but in the latest fracas a linguistic minority speaker was denied the right take his oath in a language of his choice in Maharashtra! What is even

more ironical is that even in the Maharashtra assembly, two BJP members took their oath in Sanskrit (Girish Bapat, Girish Mahajan). Congress members took their oath in Hindi (Amin Patel, Ramesh Singh Thakur) and English (Baba Siddique). It is said the Samajwadi Party MLA, Abu Asim Azmi, drew attention to himself and his choice of language. Suppose he did, so what?

India is a multi-lingual country whose Constitution affords linguistic choice as a constitutional right. To make a plea for a language is permissible. To do so with violence in the state legislature with disruptive and divisive aims and ends is not.

The writer is a senior advocate at the Supreme Court

http://www.indianexpress.com/news/whats-in-an-oath/540431/

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