KASHI PUROHIT Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) KASHI Purohit, a resident of Jaipur, claiming himself to be a public spirited person, has approached this Court by filing the present writ petition, praying for a mandamus to be issued to the Governor of the State of Rajasthan, to refer the question of disqualification of Ministers of the State of Rajasthan and the Members of the Legislative Assembly referred to in paras 10 to 16 of the petition for having committed breach of the oath of their office. Earlier than approaching this Court, the petitioner had filed a petition before the Governor of the State of Rajasthan under Article 192 read with Articles 173 (a), 188 and 190 and 191 of the Constitution of India, inter alia, on the premises that the certain Ministers of his government, namely, Shri Kalu Lal Gurjar, M. L. A. & Minister of Development and Panchayati Raj; Shri Kanak Mal Katara, M. L. A. & Minister of Women and Child Development and Janjati Vikas; Dr. Kirori Lal Meena, M. L. A. & Minister for Food and Supplies, Shir Virendra Meena, M. L. A. & State Minister for Finance and members of Legislative Assembly, namely, Shri Ram Chandra Sarardhana, M. L. A. ; Shri Prahlad Gunjal, M. L. A. ; Shri Atar Singh Bhadana, M. L. A. ; Shri Govind Singh Gurjar, M. L. A. ; Shri Hargyan Singh Gurjar, M. L. A. ; Shri Nathu Singh Gurjar, M. L. A. ; Shri Data Ram Gurjar, M. L. A. ; Shir Raghuveer Meena, M. L. A. ; Shri Murari Lal Meena, M. L. A. ; Shri Hemraj Meena, M. L. A. ; Shri Nandlal Meena, M. L. A. ; Shri Madan Mohan Singhal, M. L. A. ; Smt. Divya Singh, M. L. A. and Shri Kanhaiya Lal Meena, M. L. A. be declared disqualified for holding such office/s for having committed breach of the oath of office which they subscribed while taking oath as such, in view of the provisions contained in Article 191 of the Constitution of India, as, according to the petitioner, they have lost faith reposed in them by their constituencies. It was further prayed that their respective assembly constituencies should be declared as vacant and the Election Commission be directed to conduct fresh elections therefor.

(2.) ACCORDING to the petitioner, India being a secular country, the spirit of equal respect for all religions and castes by the members of the Legislative Assembly, is the basic feature of its Constitution. This basic feature finds its pragmatic position in the form of Article 173 and 188 of the Constitution of India read with preamble of the Constitution and the form of oath prescribed in its Schedule III which is administered to the Members of the Legislative Assembly and the Ministers. It is contended that a citizen casts his vote believing that the candidates offering their candidature at the election to the office of Member of the Legislative Assembly will show no favour or affection to any caste, creed or religion, nor will they have any inclination for or ill-will against, any particular caste, creed or religion. This being the picture depicted before a voter at the time of elections, he opts to exercise his franchise of assigning the authority in a particular candidate to hold this office of public nature. Sole object, intention and rationale behind and reasons for the prescription of a form of the oath in the Constitution is to foster unity in diversity so as to preserve the integrity of India by making the elected representatives to subscribe to the oath of allegiance to the Constitution and to uphold sovereignty and integrity of the country as a Member of the Legislative Assembly or the Parliament. He is the spokesman of all the people belonging to his constituency and he must therefore stand for all, irrespective of their shades of faith and religion. He is the people's representative. He does not merely represent a particular caste. He is bound to inspire equal confidence in the minds of all, irrespective of their caste or creed, faith or religion, for he holds the office under an oath to maintain national harmony. ACCORDING to the petitioner, the controversy began in the last week of May, 2007 when members of Gurjar community started agitation for their inclusion in the list of Scheduled Tribes at par with the others, in particular, Meena community. This agitation became violent and the situation became sporadic when in order to have an edge of this caste politics the local M. L. As in their respective regions through public platforms joined hands in support of this blood-splitting agitation which set the State ablaze. They even went to the extent of tendering their resignation if the demand of their community is not fulfilled. Various statements have been attributed to the Ministers and M. L. As. named above so as to substantiate all this. ACCORDING to the petitioner, speech delivered and statements given by them were inflammatory which resulted in arson, treason, violence, blood-shed and huge and irreparable loss to the national property.

(3.) SHRI Abhinav Sharma also referred to the judgment of the Supreme Court in Election Commission of India & Another vs. Dr. Subramaniam Swamy and Another ([1996] 4 SCC 104) and argued that in that case too, the Supreme Court held that the Governor has no power to inquire into complaint made to him by any citizen and decision must be taken by him only after obtaining opinion of the Election Commission and not even by consulting the Council of Ministers. Thus, opinion of the Election Commission is decisive since the final order would be based solely on that opinion. Learned counsel, therefore, argued that obtaining opinion of the Election Commission is the sine qua non for any decision that the Governor might take on the petition received from a citizen. In the present case, however, the Governor of the State of Rajasthan has proceeded to take a view in the matter by arriving at the conclusion that none of the disqualifications contained in Article 191 (1) was attracted without obtaining any opinion from the Election Commission of India. The Governor has, thus, acted in a wholly unconstitutional manner and contrary to the scheme of the Constitution thereby transgressing the powers conferred on him. Such a decision, being nullity in law, is liable to be quashed and set aside. Learned counsel also relied on the constitution bench judgment of the Supreme Court in Election Commission of India vs. N. G. Ranga (AIR 1978 SC 1609) and argued that their Lordships in N. G. Ranga's case reiterated the same view which was propounded by the Supreme Court in Brundavan Nayak (Supra) by holding that the President was not only bound to obtain the opinion of the Election Commission of India before giving decision on the petition, but was also bound to act according to such opinion.