RAFIQ, J. - (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. Petition submitted by the petitioner to the Governor of the State of Rajasthan, however, was not entertained and a communication dated 31st July, 2007 was addressed to the petitioner by the Principal Secretary to the Governor, informing him "that the issues raised in the petition are not covered as disqualification under Article 191 (1) of the Constitution" and, therefore, "any reference of the subject for the opinion of the Election Commission under Article 192 does not appear warranted". It was, therefore, conveyed that his petition has been filed. It is this communication which is under challenge in the present writ petition with the prayers referred to hereinabove. I have heard Shri Abhinav Sharma, learned counsel for the petitioner and perused cited case laws and the material forming part of the record. Shri Abhinav Sharma, learned counsel for the petitioner, has argued that whether or not, the act of the concerned Ministers and M. L. As. attracted disqualification under Article 191 of the Constitution of India was a question on which the Governor, on his own, could not take any decision without obtaining opinion of the Election Commission as provided for by Article 192 (2) of the Constitution of India. It was argued that the Governor in so doing, has usurped the jurisdiction which is the exclusive domain of the Election Commission of India. It was for the Election Commission to determine as to whether the persons concerned have disqualified themselves to continue as Members of the Legislative Assembly and/or Minister. The Governor by not referring the matter for the opinion of the Election Commission has exceeded his jurisdiction. Learned counsel, in support of his arguments, has relied on the Constitution Bench judgment of the Supreme Court in Brundaban Nayak vs. Election Commission (AIR 1965 SC 1892), especially, para 14 of the report and argued that the Supreme Court in that case held that any citizen is entitled to make a complaint to the Governor alleging that a Member of the Legislative Assembly has incurred one of the disqualifications mentioned in Article 191 (1) and should, therefore, vacate his seat. Whole object of democratic elections is to constitute legislative chambers composed of members who are entitled to that status and if any member forfeits that status by reason of a subsequent disqualification, it is in the interest of the Constituency which a member represents that the matter should be brought to the notice of the Governor and decided by him in accordance with the provisions of Article 192 (2)It was argued that the Governor is mandatorily required to refer such a dispute to the Election Commission for its opinion and act accordingly. The Supreme Court in Brundavan Nayak's case (supra) repelled the contrary argument that every question need not be referred to by the Governor to the Election Commission and held that though it is conceivable that in some cases, complaints made to the Governor may be frivolous and fantastic, but if they are of such character, the Election Commission will find no difficulty in expressing its opinion that they should be rejected straightaway. Learned counsel further argued that in Brundaban Nayak, argument that the Governor has a right to hold an enquiry on his own, was specifically rejected in para 16 of the report where their Lordships held such contention to be not well-founded and further held that the decision on the question raised under Article 192 (1) is no doubt to be pronounced by the Governor, but that decision has to be in accordance with the opinion of the Election Commission. Object of this provision clearly is to leave it to the Election Commission to decide the matter, though the decision as such would formally be pronounced in the name of the Governor.
(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. Shri Abhinav Sharma, learned counsel for the petitioner, argued that above named Ministers and M. L. As. were administered the oath firstly under Article 173 (a) of the Constitution before the returning officer along with all other contesting candidates that they "will bear true faith and allegiance to the Constitution as by law established" and that they "will uphold the sovereignty and integrity of India". Successful candidates were administered oath under Article 188 of the Constitution so as to entitle them to hold the office of MLA and thereafter such of those, who were appointed as Ministers by the Governor, were administered yet another oath that they "will uphold the sovereignty and integrity of India" and that they "will faithfully and conscientiously discharge" their duties as such Minister and that they "will do right to all manner of people in accordance with the Constitution and the law without fear or favour, affection or ill-will. " Learned counsel Shri Abhinav Sharma argued that these MLAs, MPs, and Ministers while taking part in the caste war during Gurjar - Meena agitation in the State by openly siding with the community to which they belong have committed breach of the oath as prescribed by Schedule III to the Constitution. Correctness of this allegation could be gone into only by the Election Commission of India. This was not open to the Governor to prejudge the issues and pronounce upon the same, one way or the other. ;