The Kerala Minister has stoked a controversy by claiming that the Indian Constitution “condoned exploitation", in what many see as a violation of his oath. Legal experts tell TNM about the possible consequences.

Saji Cheriyan, wearing a white shirt, speaks into a microphoneCredit: Facebook/ Saji Cheriyan
news Politics Tuesday, July 05, 2022 - 18:15

If a state Minister publicly claims that the Constitution of India “condones exploitation,” is it a violation of his oath taken as a Minister and Member of the Legislative Assembly? At the moment, the political career of Kerala’s Minister for Culture, Fisheries and Film Saji Cheriyan hangs on the answer to this question. A day after the Minister remarked at an event in Pathanamthitta, that the Indian Constitution was written in a way that helped “plunder” the people of the country, calls by Opposition parties for his ouster from the Cabinet have been steadily gaining momentum. But it is the Governor, in this case Arif Mohammad Khan, who has the power to take the right call in this regard, say legal experts.

“There is no doubt that Saji Cheriyan’s speech was contrary to the oath he had taken as per the third Schedule of the Constitution. But the Governor alone has to decide whether he has violated the oath and if action needs to be taken against him,” constitutional expert advocate George Poonthottam told TNM. As per the third Schedule (Articles 75(4), 99, 124(6), 148(2), 164(3), 188 and 219), the oath or affirmation made by a member of the legislature of a state is as follows: “I, __, having been elected a member of the Legislative Assembly, do swear … that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter.”

“As per propriety, if the Chief Minister feels that the Minister’s statement is a violation of the constitutional oath, he has to make a recommendation to the Governor to recall him from the council of ministers,” said George, adding that The Prevention of Insults to National Honour Act, 1971, is a secondary consideration. According to Section 2 of the Act, which deals with ‘Insults to Indian National Flag and Constitution of India’, any person showing disrespect to the Constitution shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both. “The offence can be categorised under this Act and a complaint can be registered against him at court. But that is a long-drawn process. The immediate course of action to be taken is for the Chief Minister to intervene and allow the Governor to make a decision. The Governor can only act on the advice of the state, so the conscience of the Chief Minister has to work first,” he said.

Subhash Kashyap, another legal expert, however is of the opinion that Saji Cheriyan’s speech does not constitute an offence. “It was just an expression of views about the Constitution. Dr BR Ambedkar himself has said worse things about this Constitution, which he made, while in the Rajya Sabha. He had said that if he found the Constitution was being misused, he would be the first man to burn it,” Subhash pointed out.

Minister’s response

Meanwhile, Minister Saji Cheriyan on Tuesday, July 5, responded to the controversy with a press release stating that it was not his intention to insult the Constitution, and that his statements were being misconstrued. “The comments I made about the Constitution at an event in Mallappally have been twisted. I am a public servant who respects the Constitution and upholds its values. The institution I belong to stands in the forefront of the voices calling for the protection of the Constitution and its values,” he said.

“The directives of our Constitution have explicitly stated that social justice and economic security have to be ensured for all. But the right to approach the court with the demand that these should be implemented has not been included in it. For the crores of exploited people in the country to get justice, it is necessary to strengthen the Constitution’s directives. I was only expressing my concern that if we do not do this, the Constitution would be powerless to resist growing inequalities. It was not my intention to insult the Constitution,” Saji said.

Further stating that the constitutional principles of secularism, democracy and federalism are facing severe challenges these days, the Minister said he was merely explaining through his speech how the imposition of labour codes, after cancelling all existing provisions of workers’ rights, would lead to gross exploitation. “All of these are results of the policies implemented by the governments leading the country. I was pointing out how these policies are destroying the values and essence of the Constitution.”

“The vision of the Constitution makers hasn’t yet been realised in the country as a result of the anti-people policies introduced by the Union governments so far. All I did was my duty as a public servant, that is to shine light on the denial of social justice to a vast majority of people in our country, even after 75 years of Independence. I am deeply saddened and regretful if my attempt to strongly put forth my aforementioned concerns had led to my words being misconstrued in any way. That was not my intention,” he said.

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