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3. 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.

4. I have heard Shri Abhinav Sharma, learned Counsel for the petitioner and perused cited case laws and the material forming part of the record.

5. 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.

10. Learned Counsel referred to the judgment of the Supreme Court in Hussain Khan v. S. Nijalingappa and argued that Article 173(a) requires the oath or affirmation in accordance with the proforma set out in the Third Schedule to the Constitution of India which is meant to remove the disqualification for being a candidate for election to the Legislature of the State. In other words, the learned Counsel wanted to convey that the candidates not subscribing to such oath would be disqualified to contest election and could not get elected to such office. In this connection, reference was also made to Haridasan Palayil v. The Speaker of 11th Kerala Legislative Assembly in which it was held that obvious intention of the oath was to ensure that the person concerned makes a commitment to live by the constitutional process. He has to owe allegiance to the Constitution. He has to uphold the sovereignty and integrity of the country. Once elected, he is people's representative. He is not free to cater to the belief of a sect or section of the society. He does not represent any particular religion and now he is duty bound to inspire equal faith in the minds of all. Learned Counsel therefore submitted that the oath prescribed in Schedule III to the Constitution of India is the law in view of its Article 13 and breach thereof would be a disqualification under Article 191(e) of the Constitution of India.

25. An identical question came to be considered by the Punjab and Haryana High Court in Hardwari Lal v. Ch. Bhajan Lal , in which the petitioner alleged that the Chief Minister of the State had violated the oath of his office by his misdeeds, the Division Bench, while rejecting the argument, held in paras 8, 12 and 13 of the report as under:

8. Articles 191 and 192 of the Constitution exhaustively deal with and furnish a composite machinery regarding the disqualification of a Member of the Legislative Assembly. It is significant to notice that breach of oath as a Minister, an oath which he takes before entering the office is not such a disqualification either under the Constitution (Article 191) or even under any other law made by Parliament including the Representation of the People Act. Violation of oath maybe betrayal of faith reposed in the person taking oath which unfailingly indicates and demonstrates a fundamental Code of Conduct. Nevertheless to hold violation of oath as a disqualification would mean adding another clause in Article 191 of the Constitution which obviously is neither desirable nor permissible.