1. Challenge to the validity of proposing a candidate for Rajya Sabha elections by an elected member of a legislative assembly who has not taken the prescribed oath. (Para 1 )
Back
Next 
1997 Supreme(SC) 3
SUPREME COURT OF INDIA
A.M Ahmadi, C.J.I., K Venkataswami, Sujata V Manohar, JJ.
MADHUKAR JETLY, PETITIONER
VERSUS
UNION OF INDIA AND OTHERS, RESPONDENTS.
Writ Petition (C) No. 872 of 1996, decided on January 6, 1997.
An elected member of a legislative assembly who has not yet taken the oath or affirmation required by Article 188 of the Constitution can still participate in non-legislative activities, including proposing candidates and voting in elections for the Rajya Sabha.
Headnote:(A) Constitution of India - Article 188 - Representation of the People Act, 1951 - Section 73 - Elected member of legislative assembly - Failure to subscribe to oath or affirmation - Validity of proposing a candidate for election to the Rajya Sabha - An elected member 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 member - Right of voting at an election to the Rajya Sabha can be exercised by such member - Election to the Rajya Sabha does not form part of the legislative proceedings of the House carried on at its meeting, nor is the vote cast at such an election a vote given in the House on any issue arising before the House. (Para 1)
Facts of the case:
A petition was filed challenging the validity of a person elected as a member of a legislative assembly proposing a candidate for an election to the Rajya Sabha, on the ground that the said member had not made and subscribed to the prescribed oath or affirmation as required under the Constitution.
Findings of Court:
The court found that the matter was already settled by judicial precedent, establishing that non-legislative activities, including participating in Rajya Sabha elections, can be performed by an elected member even before taking the oath.
Issues: Whether a person elected as a member of a legislative assembly who has not subscribed to the prescribed oath or affirmation can validly propose a candidate for an election to the Rajya Sabha.
Ratio Decidendi: The court held that the election to the Rajya Sabha is a non-legislative activity and does not constitute part of the legislative proceedings of the House; therefore, the requirement of taking an oath under Article 188 does not preclude an elected member from proposing a candidate or voting in such an election.
Result: Petition dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether an elected member of a legislative assembly who has not subscribed to the oath under Article 188 can validly propose a candidate for Rajya Sabha elections. (Para 1 )
3. Voting in Rajya Sabha elections is a non-legislative activity and does not constitute legislative proceedings of the House or a vote on an issue before the House. (Para 1 )
4. An elected member notified under Section 73 of the Representation of the People Act, 1951, can perform non-legislative activities despite not having taken the prescribed oath. (Para 1 )
5. Petition dismissed. (Para 1 )
6. Can an elected member of a legislative assembly who has not taken the oath under Article 188 propose a candidate for Rajya Sabha elections?
Yes. An elected member who has not taken the oath but is notified under Section 73 of the Representation of the People Act, 1951, can participate in all non-legislative activities, including proposing a candidate and voting in Rajya Sabha elections. (Para 1 )
7. Is voting in a Rajya Sabha election considered a legislative proceeding of the House?
No. The election to the Rajya Sabha does not form part of the legislative proceedings of the House carried on at its meeting, nor is the vote cast a vote given in the House on any issue arising before the House. (Para 1 )
ORDER
1. We have heard the learned counsel for the petitioner as well as learned Attorney General, who drew our attention to the decision of this Court in Pashupati Nath Sukul V. Nem Chandra Jain [(1984) 2 SCC 404]. In that case two questions were raised for consideration and one of them was whether a person elected as a member of a legislative assembly but who has not made and subscribed the prescribed oath or affirmation as required by Article 188 of the Constitution can validly propose a person as a candidate at an election held for filling a seat in the Rajya Sabha. Dealing with this contention the Court examined the provisions of the Constitution and then came to the conclusion recorded in para 20 to the effect that an elected member who had not taken oath but whose name appears in the notification published under Section 73 of the Act (Representation of the People Act, 1951) can take part in all non-legislative activities of an elected member. Their Lordships further pointed out that the right of voting at an election to the Rajya Sabha can also be exercised by him. This conclusion is based on the premise that the election to the Rajya Sabha does not form part of the legislative proceedings of the House carried on at its meeting. Nor is the vote cast at such an election a vote given in the House on any issue arising before the House (see para 18 at p. 418). This view has held the field. We are, therefore, satisfied that this is a matter duly answered by this Court by the aforesaid judgment and, therefore, we see no merit in the petition and dismiss the same.
