Oaths of the MPs: A Constitutional Conundrum

The oaths of the newly elected MPs have given rise to a constitutional conundrum. These oaths may be constitutional in both textual as well as literal senses. However, there are honest questions to be answered.

Article 123(3)(a) of our Constitution requires the election to be held within three months before the end of the five-year tenure of the previous Parliament. The 7 January election was held within that three-month corridor. Article 148(2A), inserted by the BNP government in 2004 through the Fourteenth Amendment Act, requires the oath to be administered within three days of Gazetting the election results. Article 39(4) of the Representation of Peoples' Order 1972 does not mention any minimum or maximum time limit for the Election Commission to publish the Gazette. Once the EC publishes it, the Speaker is bound to administer the oaths within three days.

 The proviso of Article 123(b) clearly says that the newly elected MPs enter the office at the expiry of the previous Parliament (ie until 29 January this year). However, Article 148(3) says that they enter office "immediately after" they take their oath. Some may argue that this general rule applies to all other oath-taking office bearers but not the MPs because Article 123(b) has a specifically different rule for them – specific rules must prevail over general rules. An additional twist is found in the Third Schedule, which mentions that while taking the oath, the MPs are "about to enter" their office. "About to enter" may indicate an immediate future – the MPs entering the office "immediately after" they take their oaths. This interpretation goes along well with the article 148(3). However, "about to enter" may also indicate a nearer, but not distant, future as such. If we say that it means entering office in the near future, it goes well with article 123(b), which required them to wait until 29 January 2024. Here, again, we need to prefer an interpretation that goes with a specific rule over one that goes with a general rule.

 Still, there is a significant question. Do the newly elected MPs' salaries and allowances start from 11 January 2024? I tried to look at the Members of Parliament (Remuneration and Allowances) Order 1973. Section 2(d) says that the MPs' tenure of office starts on the day they enter their job and ends on the day their tenure ends. If the above-mentioned literal interpretation holds, the newly elected MPs do not enter office until the end of the Eleventh Parliament's tenure. So, they must not start drawing remunerations until the start of their tenure. But was this followed at the beginning of the Tenth and Eleventh Parliaments? This question indeed deserves an answer.

 Next, there is a constitutional conundrum. My understanding of articles 56(3) and (4) suggests that the President does not need the MPs to take the oath and the new Parliament to come into sessions before he appoints a new Prime Minister. It may sound a bit strange, but it is true. Article 56(3) allows the President to appoint a Prime Minister who "appears to him" to have the support of the majority of MPs. The Indian Presidents have historically appointed their Prime Ministers immediately after the results of the elections were clear, before the new parliaments were officially convened, and before the MPs were given their oaths. It is known as negative parliamentary investiture, where the leader of the majority party or coalition is presumed to have the confidence of the Parliament unless and until it delivers a vote of no confidence. The Indian Presidents do this despite finding no expressly worded discretionary power in their Constitution. Ours gives a clear discretion to the President. Moreover, articles 56(3) and 57(3), taken together, suggest the Prime Minister's entry into and exit from the office do not depend on the tenure of the Parliament.

 Then, why did the MPs need to take their oaths so hastily? It is for a procedural convention that we developed in the past and a controversial constitutional amendment that does not suit our present-day realities.

 We have a practice of the MPs taking oaths, parties convening their parliamentary group meetings, electing their leader and then the President appointing the Prime Minister. There must be caution if we want to call this a Procedural Constitutional Convention. This practice fitted more with the presidential or caretaker government like situations where the previous parliaments got dissolved before the elections. There was no problem with the President allowing the new MPs to take their oaths and the majority party to elect its leader. Does it fit within our current system of elections three months before the end of the previous Parliament? Perhaps not.

 Next, the Fourteenth Amendment of 2004 made it constitutionally binding for the Speaker to administer the oaths within three days of the Gazette. It is yet to be clarified what constitutional urgency prompted the BNP government to make this change. They had some immediate concerns surrounding the then next parliamentary election, and they wanted to avoid delay in forming government once the controversial caretaker government somehow managed to hold that election on 22 January 2007.

 Two potential solutions can be offered in this regard. First, the 2004 amendment is no longer suitable for the current system and it needs to go. Second, could the President dissolve the Eleventh Parliament from the moment the new MPs took their oaths? It might have been an option. There is nothing in articles 57(2), 72(3) or 123(3) that prevents a Prime Minister from advising the President to dissolve the Parliament at any time. Of course, there is a risk that a partisan Prime Minister and President may coalesce to dissolve the Parliament immediately before a scheduled election and thereby defer the election by three months under Article 123(3)(b). It is a risk similar to that of a Prime Minister losing the confidence of the Parliament and advising the President to dissolve it. Fortunately, article 57(2) protects against such abusive advice. It gives the President the scope to disregard it. By analogy, we can say that the President may ignore this pre-election advice as well. For better protection, we may amend the Constitution to proscribe it in the same way as Article 57(2) does. That said, about the risk mitigation, I see no problem in dissolving a Parliament once an election is over and a new majority is known.

The writer is Lecturer in Law, University of Hull, UK.