Constitutional Oath: A reflection of how branches of government function

While forming an important part of the constitutional machinery of liberal democracies like India, the oath of office remains a largely banished subject from the textbooks and discussion over constitutional law jurisprudence.

Yet, constitutional oaths have been constitutive of some of the most important junctures in constitutional history of nations, most notably in Marbury v. Madison, the decision of the US Supreme Court that led to the establishment of judicial review for legislative acts in the United States of America.

The form of oath establishes an incredibly large part of the constitutional machinery governing a nation. Such is a contrast that can be observed in the ‘parliamentary sovereignty’ concept of governance in the United Kingdom as opposed to the ‘constitutional sovereignty’ that establishes principles of governance in India. The oath of office for a judicial officer in the United Kingdom is governed under S. 10(7) of the Senior Courts Act, 1981 which refers to S. 4 of the Promissory Oaths Act, 1868. The oath is formulated as follows:

“I, <name> , do swear that I will well and truly serve our Sovereign Lady Queen Victoria in the office of , and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will. So help me God.” (emphasis supplied)

In the United Kingdom, the subservience of the judges is to the laws and usages, in that order. A judicial institution cannot ordinarily declare a law that has followed proper procedure to be enacted through the UK Parliament as unconstitutional.

In contrast, the oath of office for a judge in India as in the Third Schedule of the Constitution is as follows:

“I, <name> , having been appointed Chief Justice (or a Judge) of the Supreme Court of India do (swear in the name of God)/(solemnly affirm) that I will bear true faith and allegiance to the Constitution of India as by law established, (…) and that I will uphold the Constitution and the laws.” (emphasis supplied)

The subservience of the judges in India is to the Constitution and to no one else, which makes for a large difference in constitutional dynamics between the branches of government. In fact, the oath of office for a Member of Parliament reads similarly under the Third Schedule:

“I, <name> , having been elected (or nominated) a member of the Council of States (or the House of the People) do (swear in the name of God)/(solemnly affirm) that I will bear true faith and allegiance to the Constitution of India as by law established (…).”

The oath of office for the President of India under Article 60 of the Constitution also reads similarly as follows:

“I, <name> , (swear in the name of God)/(solemnly affirm) that I will faithfully execute the office of President (or discharge the functions of the President) of India and will to the best of my ability preserve, protect and defend the Constitution and the law (…).”

The constitutional oath system lays down the second facet of the rule of law, which has been laid down in various judgments of the Malaysian Court of Appeals. Justice Hamid Sultan, in Public Prosecutor v Chinonso, reaffirmed that there exists two different rules of law: one for public access to justice (or public protection against tyranny of government) and one that determines the relationship between the organs of the trias politica.

The latter may be called the intragovernmental rule of law, which necessitates that constitutional oath dictate the overarching principles of reasonableness, fairness, and transparency as part of the Constitutional framework (the form of oath being explicitly written in the Constitution).

The formulation of the oath in the United Kingdom conveys that there is Parliamentary sovereignty and all branches are subservient to the Parliament, which is presupposed to embody the will of the people. In contrast, the Constitutional sovereignty perception deems even the Parliament as a creature of the Constitution (and not the other way round) which stands on an equal footing with the executive and judiciary. In such a system, therefore, it becomes important to understand the principles of the relationship that is laid down and mediated by the Constitution.

At a time when the Supreme Court is criticised as being an ‘executive court’, it may be time to revisit the legal value of the constitutional oath of office and how it is determinant of the relationships between the branches of government. More so, when the accusation is that the separation between the branches of government is being blurred, it is important to remind ourselves (and those who are taking the oath of office) of the solemn duty towards the Constitution and not to the Parliament.

The Supreme Court established that the core component of the constitutional oath of office was the “[u]ndertaking to bear true faith and allegiance to the Constitution (…)” that takes precedence over any of its ceremonial or procedural components. The legal significance of the constitutional oath of office extends beyond the first appointment, and as such, the solemn duty towards the Constitution continues throughout the entire term of the discharge of the duties. This second facet of the rule of law established by the constitution enables not only individual duties to be made prominent, but also institutional relationships to be forged on the same principles.

When an institution cannot exist without its members having sworn the oath of office, the institution itself gains the characteristic as a guardian of the Constitution (since an institution cannot swear an oath). To abrogate from its principles would be the violation of the supreme duty of the institution as a whole. This manifests itself as duties of a branch of government towards other branches of the government to ensure that the constitutional machinery functions as intended.

For example, under such a constitutional oath conception, judicial review would be conceptualised as a duty of the judiciary, not just a mere power that may be exercised with caution or discretion when compliance with constitutional principles are at stake.

While the discussion may seem a bit abstract, it has serious implications about thinking of how the governance of the country functions, for seldom do we ask what duties does one branch of government owe to the other branches.

The author is a Doctoral Researcher at the Amsterdam Law School, University of Amsterdam.