Pinarayi’s swearing-in: No constitutional need for all MLAs, MPs to be present

Pinarayi Vijayan will be sworn in as the Kerala Chief Minister in a ceremony that will be attended by 500 people.
Pinarayi Vijayan
Pinarayi Vijayan
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“Is it worth the risk? Yes. According to the Constitution, the swearing-in has certain precedents” — read some messages that have been circulated on social media, defending Pinarayi Vijayan’s decision to hold the swearing-in ceremony with 500 people, instead of a virtual event. The swearing-in will be held on May 20 at the Central Stadium in Thiruvananthapuram, one of the Kerala districts that is currently under triple lockdown. As criticism of hypocrisy is growing, CPI(M) supporters have claimed that the Constitution has mandated for all legislators to be present, a claim that has been refuted by several Constitutional Law experts.

Invites to all 140 newly elected members of the Legislative Assembly have been extended for the ‘restrained’ version of the swearing-in. Apart from the MLAs, the state’s 20 MPs, too, have been invited. At a time when triple-lockdown is in place in several parts of Kerala, the optics and message given by such a ceremony are being questioned.

TNM spoke to Aryama Sundaram, a senior Supreme Court advocate who has argued several cases pertaining to constitutional law. He says that there is nothing in the Constitution that mandates how many people should be in attendance at the swearing-in ceremony. “The person who is overseeing the swearing-in, that is the Governor, and the people who are being sworn-in and the staff of the Secretariat are required for the process,” he adds.

Former Secretary-General of the Lok Sabha Subhash C Kashyap, too, concurs. He told TNM that there is nothing in the Indian Constitution that would prevent the Kerala cabinet from being sworn in virtually. "There is no pre-requisite in the Constitution that says a certain number of people need to present, or swearing-in needs to happen in person."

Former Speaker of the Karnataka Assembly Ramesh Kumar says that such a ceremony where not more than 20 people are allowed to attend even funerals will erode the credibility of politicians further. “No matter what they say, it would be difficult to ensure complete adherence to the safety protocols for COVID-19. But what message will this send to the common man? You cannot have two sets of rules, one for politicians and another for the common man. As it is, we (politicians) have lost credibility among the masses. Will Pinarayi Vijayan lose his mandate if a simple ceremony is conducted? The people of Kerala have stood by them. And with this, people will question if politicians are a privileged class,” he says.

Talking about what constitutes a swearing-in ceremony, Ramesh Kumar says, “The Governor will administer the oath to the person he has designated as the leader looking at the majority. The Chief Secretary will conduct the ceremony. They will communicate the same to the Chief Justice and a few other relevant people. It is not either mandated that the legislators be invited or be present”.

In the past, several swearing-in ceremonies have been conducted in a simple fashion. In 2016, after J Jayalalithaa’s death, O Panneerselvam’s swearing-in, along with 31 ministers, took a total of 10 minutes and was a no-frills event, with no public or other members of the party present.

In 2017, Governor Keshari Nath Tripathi swore in Nitish Kumar as the Chief Minister of Bihar just hours after he ditched the 'Mahagathbandhan’ to form an alliance with the BJP. The ceremony reportedly lasted under 15 minutes and was attended by a handful of people to quell any disgruntlement even within JD(U).

Devendra Fadnavis was sworn in as Maharashtra CM by Governor Bhagat Singh Koshyari at 7.50 am on November 23, 2019.  The last-minute ceremony, which took place in the Raj Bhawan, was attended by less than 10 people. However, the legality of the same was later questioned as Fadnavis failed to prove the majority.

Retired Supreme Court judge Justice V Gopala Gowda tells TNM that he found nothing wrong in inviting 500 people for the swearing-in ceremony. While he too confirmed that it is not mandated that elected MLAs be present, he said it would be ‘proper’ for them to be present. “The MLAs have elected their leader who will be sworn in as the CM. There is a tradition of inviting former CMs, the Chief Justice and others who hold constitutional positions. So, as long as proper physical distancing is followed, I see nothing wrong with it”.

The Kerala chapter of the Indian Medical Association has been repeatedly urging the swearing-in to be a virtual event owing to the surge in the number of COVID-19 cases.

(With inputs from Geetika Mantri)

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