- (1.) S. H. A. Raza and Mrs. Shobha Dikshit, JJ. Kaka Joginder Singh alias Dharti Pakad whose nomination paper for election to Rajya Sabha was rejected by the Return ing Officer, by means of this writ petition has assailed the election mainly on the ground that as the members of the legisla tive assembly of Uttar Pradesh have not taken their oath under Art. 188 of the Con stitution of India, hence, the election of the members of the Rajya Sabha from Uttar Pradesh be illegal, hence the respondents Election Commission of india as well as Secretary, Vidhan Sabha be restrained to permit the newly elected members of the legislative assembly to cast their votes in coming election of members of Council of State in accordance with Sch. 3 to be held on 29-11-96 and ajso issue a writ in the nature of prohibition against the opposite parties restraining the opposite parties to permit administration of oath in case there is unan imous election of the Council of State.
(2.) IT is pertinent to mention that some of the members of the Rajya Sabha have already been elected unanimously on 21-11-1996 but three bye elections for the election of three Rajya Sabha members is going to be held on 29-ll-1996on account of the vacan cy caused due to the resignation or demise of certain members of the Rajya Sabha. It is pertinent to mention here that on 17-10-1996 after the constitution of the U. P. Legislative Assembly under Section 73 of the Representation of People Act, certain powers of the Governor as well as the State Legislative Assembly were assumed by the President of India under Article 356 of the Constitution. The proclamation mentions Article 188 as well which pertains to oath or affirmation to be taken by the members before taking their seat in the legislative assembly. Article 188 reads as under: "oath or affirmation by members-Every member of the Legislative Assembly or the Legis lative 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. " A perusal of the language of Article 188 mentioned in the foregoing paragraph, indicates that if a member of the Legislative Assembly, after being elected as such does not take oath, he shall not cease to be a member of the Legislative Assembly, but he may be final in accordance with the provision contained in Article 193 which reads as under: "if a person sits or votes as a member of the Legislative Assembly or the Legislativextouncil of a State before he has complied with the require ments of Article 188, or when he knows that he is not qualified or that he is disqualified for member ship there of or that he is prohibited from so doing by the provisions of any law made by Parliament or the Legislative of the State, he shall be liable in respect of each day on which he so sits or votes to a penalty of the five hundred rupees to be recovered as a debt due to the State. "
(3.) AS soon as the Legislative ASsembly is constituted after issuance of the notifica tion purporting to be one under Section 173 of the Representation of People Act, the Legislative ASsembly stands constituted. On 17-10-1996, the U. P. Legislative ASsembly has been constituted after the is suance of the notification by the Election Commission of India. But as a Presidential proclamation was issued on the same day wherein legislative functions of the Legisla tive ASsembly have been assumed by the President of India meaning there by, that the power of the U. P. Legislative ASsembly to that regard has been assimilated with the President and the Parliament and it would be competent for the Parliament to pass any legislation for the State of Uttar Pradesh. But the non-legislative functions of the members of the U. P. Legislative ASsembly would not be effected from the Presidential proclamation. All the members elected to the Legislative. ASsembly would receive their salary, emoluments and other privileges and can take part in the commit tees which are appointed by the State Government for development activity in every district. They can participate and deliberate into the meetings of such com mittees. In view of the aforesaid situation, it cannot be said that even if a member who has not taken oath cannot cast his vote for electing members to the Rajya Sabha, be cause that function is a non-legislative one which has not been assumed by the Presi dent of India in his proclamation issued on 17-10-1996. A member of Legislative AS sembly who has not taken oath cannot be ceased to be a member only if he does not take oath out if he sits in the assembly, take part in the deliberations in the assembly and cast his vote, he be only subjected to a penal ty. So, in view of the aforesaid situation, non taking of oath by a member would not disen title him to perform his obligation and duty as a member of the Legislative ASsembly. The view which we have taken is fortified by the observation of the Hon'ble Supreme Court in Pashupati Nath Sukiil v. Nem Chandra Jain and others 1984 (2) S. C. C. 404, wherein the same question was agitated before the Hon'ble Supreme Court wherein it was observed, An elected mem ber who has not taken oath but whose name appears in the notification published under Section 73 of the Act can take part in all non-legislative activities of an elected mem ber. The right of voting at an election to the Rajya Sabha can also be exercised by him. It was further observed in paragraph 18 of the report that Article 188 does not enjoin that if an-elected member of a Legislative Assembly sits and votes before taking oath as prescribed by Article 188 he shall automat ically cease to be a member of the House, even though it is possible that his seat may be declared as vacant under Article 190 (4) if for 60 days he is absent from all meetings of the House without its permission. An elected member incurs the penalty for con travening Article 193 only when he sits and votes at such a meeting of the House. The words 'sitting and voting' in Article 193 imply the summoning of the House under Article 174 by the Governor to meet at such time and place as he thinks fit and the hold ing of the meeting of the House pursuant to the said summons or an adjourned meeting. Invariably there is an interval of time be tween the constitution of a house after a general election as provided by Section 73 of the Act and the summoning of the first meeting of the House. During that interval, an elected member of the Assembly whose name appears in the notification issued under S. 73 is entitled to all the privileges, salaries and allowances of a member of the Legislative Assembly, one of them being the right to function as an elector at an election held for filling a seat in the Rajya Sabha. That is the effect of Section 73.;