BSY camp strategy will be to make rival MLAs skip oath

If an MLA does not take oath, he will not be allowed to participate in the vote on the trust motion to be moved by CM BS Yeddyurappa on the floor of the House, lawyers in know of the strategy told TOI and cited the Supreme Court’s 1984 judgment in the Pashupati Nath Sukul case.

The judgment said an MLA, even before taking oath, could vote in Rajya Sabha elections but would not be permitted to participate in the business of the House, which included voting on trust motion or no-confidence motion. “If a dozen MLAs from rival parties do not take oath and BJP is able to win over two Independent MLAs, it will be able to prove majority on the floor of the House,” a lawyer said.

The lawyers said the judgment is to be read along with the requirements under Article 188 of the Constitution, which says, “Every member of the legislative assembly or the legislative 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.” This makes it clear that unless an MLA takes oath, he cannot take a seat inside the House and, hence, cannot vote.

This could give some credence to attorney general K K Venugopal’s post-midnight argument that it was a grey constitutional area whether the anti-defection law could be applied to MLAs who have not taken oath. This argument was termed “”preposterous by a bench of Justices A K Sikri, S A Bobde and Ashok Bhushan.

This interpretation of the 1984 ruling by BJP lawyers appears to have been confirmed by the SC in its judgment on April 24. A bench of Justices Madan B Lokur and Deepak Gupta, while dealing with a no-confidence motion case in a panchayat, held that since the Constitution categorically provided for it, an MLA has to take oath to participate in the voting on a no-confidence motion.