The Path of 'The Shapath'-Legal Journey Of Oath Taking Through History
"Oaths are but words, and words but wind/ Too feeble implements to bond"- Samuel Butler
The nation (let's paraphrase and say people like us, as we can no longer claim to speak for the "nation") watched aghast at the spectacle that was passed off as an "Oath Taking Ceremony". Other than crediting our worthies with electrifying the most mundane part of legislative business of the House (admit right now when was the last time we were so worked up with an Oath Taking or for that matter even watched one), the less said the better about this sordid affair, where Ram was pitted against Rahim in the well of the House with an unsuspecting Bhim thrown in between!
The concept of an "Oath" has theological moorings. It makes its debut in the Old Testament with Genesis recording that "God would never again curse the ground because of Man". (8:21). The faithful, have being ravaged time and again in History and ultimately given their own homeland after the Holocaust, made this "NEVER AGAIN" a mantra that is both a reminder as well as a promise.
Something pretty much as the scholar EW Hopkin tells us about Hindu Dharma's use of the term "Sapatha" which doubles for "curse" as well as "oath", but more on that later.
Sticking to the great Abrahamic Faith, the first example of an oath is found when Abraham gets his chief servant Elizer to swear one which would ensure that his son would not look at the House of Canaan for a mate and focus on his daughter instead.
The Book of Numbers (30.2) states "When a man vowed a vow unto the Lord or sweareth an Oath to bind his soul with a bond, he shall not break his word."
Ancient Rome also gave an Oath a place of importance. Holders of Office had to take one at the Temple of Jupiter on a Jupiter Stone.
As Sri Ram was in great remembrance on Oath Day, it is very interesting to examine how Sanatana Dharma approached this concept. Sapatha was used in ancient India in a duel context. One is in the sense of a "revenge oath". Bhima's oath, at the sight of the slighted Draupadi, to fix Dushashan is of this genre. The second is in the asservation (assertation) context. In Maharshi Valmiki's Ramayan, Bharat's Oath to Ma Kaushalya protesting his innocence in the matter of her son's expulsion would belong to this category.
Shapa (or curse, a subject the Right Honourable Member from Bhopal would be most familiar with) was integral to the term Shapath.
A specie of "Oath" or "shapath " or "pan" was the "pratigyna". This could relate to the past ( as Sita with respect of her past chastity as Ranava's guest, says "As my heart has never turned from Rama, so let Fire, the witness of the world, save me") or could relate to the future (such as in the case of the most famous Oath of Hindu Mythology-Bhishma's Pratignya, when the rightful heir committed to a life of celibacy so that a fisherman's daughter could marry his father Shantanu and be assured of a royal bloodline.
An Oath, as in Sita's Agni Pariksha, could be accompanied by an ordeal or a process of attestation. Elements of nature, such as fire, water and earth, bearing witness to the veracity of the claim. Sita who chose fire at Lanka, when asked for a repeat performance by Rama in Ayodhya, in the context of the paternity of her children, chose earth. Uttara Ramayan (whose authenticity has often been questioned) claims that Earth not only validated her oath but also took her away to prevent any further humiliation. Trial by Ordeal in medieval times and during the Dark Ages has a disturbingly similarity to these precedents in our epics.
Water also gets intrinsically linked with ancient Hindu oath taking. Jalam Samspriya Nirmalam. (Water purifies by touch). Valmiki is said to have been inspired by touching water to compose his great epic. Bharata is also said to protest his innocence to Kaushalya by touching water. Avid readers of Amar Chitra Katha in the 80s and watchers of dharma serials on TV in the 90s will be aware of many an instance where an angry Rishi has sprinkled water before cursing. Interestingly , before Act 5 of 1840 was brought by the Company Bahadur, Hindus in Courts had to take an oath on Ganga water. More on that later.
Another form of Oath which makes its appearance in Indian mythology is one which has a consequence attached as a sting. The most famous was that of Arjuna (having lost his Abhimanyu in the Chakravyu) vowing to finish off Jayadrat before Sunset or foresaking heaven. We all know how Krishna brought about a faux sunset to get over that oath coming to bite his mate.
In Islam, the Oath has a very solemn place as well. The Holy Quran reminds the faithful that "God does not only hold you responsible for the mere utterance of oaths. He holds you responsible for your actual intention." (5:89)
Hannah Rosefield, in a delightful article in the New Yorker, traces the history of Oaths and books in legal proceedings. She tells us that in the absence of an organised state, in 9th Century England, people would swear on the authenticity of transactions on a gospel. This was formalised by English Courts almost 300 years later when witnesses and jury members were made to swear on the Bible. Do note that, as Hindus had no principal holy book and most sacred works were revealed and continued in oral tradition, at this time in India they were still making do with Ganga water! A 13 th Century Latin Manuscript (housed in the Trinity College Library) is said to have put to paper detailed instructions for the first time on how the oath was to be administered.
These oaths were mostly individual centric. The Oath of fealty or loyalty to the Monarch (and now to the Constitution as our worthies attempted to take) got its prime of place in the Tudor period specially when Good Old Henry VIII was asserting himself against the Holy Father in Rome. The 1534 Oath of Succession, after he packed off his brother's widow who was also his first wife Catherine as a mistake annulled, required his subjects to pledge loyalty to the progeny of Henry and new Queen Ann Boleynn. Soon he got fed up with Ann and she lost her head at the chopping block. Her replacement Jane Seymour, rumoured to be the only wife Henry actually loved, necessitated a new oath of 1536. This public oath taking, which then gets replaced by only parliamentarians having to swear, took its final bow in 1723. The " State Oath" had been necessitated by the assassination attempt on King George I.
The English took this 'Oath taking' across the pond. America came up with an improvisation "So help me God". The tradition of having an Oath Book for witnesses and holders of public offices also found roots. In fact, in America, the book on which the public office holder would take his oath has over time also gained significance. People have sought to make a political statement on the basis of the book chosen for the oath. Tulsi Gabbard in the Congress and Judge Sri Srinivasan in the Circuit Court took their respective oaths on the Gita. Keith Ellison, the first Muslim Law Maker also created history and controversy when he took his oath on the Koran in 2006. President Washington had used a Masonic bible whereas Obama chose the Bible that had sworn in Abraham Lincoln. Roosevelt had broken the Bible tradition in 1901 and Presidents Quincy and Pierce had actually preferred a Law Book to the Bible.
The Nature of the Oath and its form has a legal sanctity. Is an oath an empty ceremony? Does it have any legal consequence? What if the oath is not properly administered?
While SCOTUS judges are always held as the role models and their poor cousins the world over told to emulate them, if is astounding how many times this minute-long task supervised by the highest judicial officer of the land has been screwed up. In 1928 Taft said " maintain" instead of " protect". In 1954 Chief Justice Harlan, like the speaker in the case of Pragnya Thakur, could not believe the name of the oath taker. He said "Harry Ship Truman", to be corrected by the elected candidate as simply "S"! In 1953 and 1957 Eisenhower added an extra "the" to "office of President". In 1965, Chief Justice Warren swore in Lyndon Johnson to the "Presidency" of the United States!
Jeffery Toobin in his gripping book "The Oath", writes about the most recent screw up of Presidential Oath taking when Chief Justice Roberts in 2009 said " execute the office of the President TO the United States". On 21.1.2009, behind closed doors in the White House, the two made another attempt at the oath taking as a matter of abundant caution against potential suits challenging the legitimacy of the President.
Indian pre-constitutional law was the Oaths Act of 1873. The 28th Law Commission Report on Oaths notices how prior to 1840, in the judicial proceedings, Muslims used to swear by the Koran and Hindoos by the Ganga water. In 1840 our ruling Company (well unlike what some cynics would have you believe of the present times about corporates indirectly ruling us, then we were directly ruled by a monopoly commercial enterprise) decided that the Society had become too "sophisticated" for Ganga Jal. A lawyer friend once told me of this anecdote which illustrates how we are unable to cut ties with history. A taxi driver told him that the Uttarakhand police had finally found the antidote to taxis avoiding commercial taxes by pretending to be the personal vehicle of the tirtha yatris (pilgrims) who were given standard instructions to say that it was their personal car if caught by the police. The driver complained that now when the police were stopping the Ganga pilgrims enroute to Rishikesh, they were making them take oath on Ganga water that the car was not a taxi!
The new legal regime introduced the concept of "solemn affirmation" as an alternative for a person who did not want to take the name of the Lord in vain. The Oaths Act of 1969, which governs the field as of today, also presents the dual option of "in the name of God" and "solemnly affirm". Witnesses are to take an oath in this form to be administered by persons so described in the law. Minors below 12 years can be witnesses without taking any oath.
The Constituent Assembly understood the significance of the "oath" when while debating Art 56, Ambedkar explained that the term "violation of the constitution" was a wide concept covering all such things like bribery and treason which would on the part of the President amount to a breach of his "oath". The Constitution of India (COI) , jurists like Justice PB Mukherjee will have us believe, gave a position of great significance to the President whose Oath of Office is in fact set out in the main body (Art 60) as opposed to other office holders, like our MPs, whose oaths have been set out in the 3rd Schedule. However, for the purposes of our discussion, the important take away is that even under our constitutional scheme, an oath is clearly specified and God has to find place in the process only as our framers had dictated. Any prefix or suffix to the oath might be constitutionally infirm.
Article 99 of the COI requires an MP to take an oath before she can act as a legislator. The mirror provision for the MLA is Article 188. The Kerala High Court in KC Chandy v R Balakrishna Pillai AIR1986Ker116 had occasion to examine the constitutional significance of this oath in the backdrop of quo warranto proceedings initiated against the Legislator for his speech which was alleged to call people to arms. The Court held that while the breach of an oath was not a constitutionally prescribed disqualification, it could not be said that there was no sanctity to the oath or that it was a mere "moral obligation". The Court held that breach of an oath was more for the political executive to examine than for the judges to scrutinise. Significantly, it drew a distinction between a breach of an oath and the absence of an oath. The latter made the occupation of office illegal. In the context that we are discussing, can it be said that an oath which is not as per the 3 rd schedule is not an oath at all in the eyes of the law?
With no disrespect meant to our temple of democracy, the Parliament is not a temple. For that matter it's not a Dargah or a gurudwara. The brazen heckling and counter-machismo in full camera glare sadly has succeeded in giving the Lok Sabha a Kuru sabha-esque feel.
It is not without reason that our constitutional document has strictly controlled the entry of divinity into its discourse. Justices Shelat and Grover, in the famous Fundamental Rights case had flagged the important role of the preamble to the Constitution.
A. It indicates the source of the law. America's " We the People" has found a resonance in constitutions the world over, from Kiribati to Cambodia, including of course the COI.
B It contains the enacting clause which brings into effect the constituent.
C. It indicates the rights and freedoms of the people and gives a peek into the basic type of government that is put in place.
The competitive religious chanting the country witnessed would have given blushes even to the National Assembly of Pakistan. The preamble of the Pakistan Constitution of 1973 starts with "In the name of Allah, the most Beneficiant, the most Merciful" and proceeds to note that "Whereas sovereignty over the entire universe belongs to Almighty Allah alone". It then promises that the Islamic Republic would be governed by the principles of the Holy Quran and Sunnah". Such a constitutional regime also is particular about how the oath has to be taken. The prime minister's oath requires him to affirm that he is a Muslim and believes in Islamic precepts like the Oneness of Almighty Allah, and so on and so forth. He is also required to "preserve the Islamic ideology which is the basis for the creation of Pakistan."
Compare this system to ours, observe how sanitised from theology our framers had kept our institutions. Imagine now if the Chief Justice of India were to take oath militantly chanting Allahuakbar or Devi Strotram as we just witnessed.
In this backdrop, the Bangladeshi battle to reclaim their Constitution makes interesting copy. East Bengal tore away and formed a Peoples' Republic founded on the four-fold principles of Securalism, Socialism, Nationalism and Democracy. Post Assassination of Founding Father Mujib, military dispensations of Zia and after him Ershad progressively encouraged the radical islamisation of that country. Ershad introduced the 8th Amendment to the Bangladeshi Constitution which inserted in the preamble "Bismillashirahmanurrahim" ("BRR") and Art 2A made Islam the State Religion of Bangladesh. Relying heavily on the Indian Supreme Court's decisions, in 2005 the High Court Division of Bangladesh held that the preamble was a part of the Constitution and the any amendment against the basic structure of the document would be invalid. It ruled further that such amendments were contrary to the secular character of the Bangladeshi Constitution. The Supreme Court went on the confirm this view. In 2011, the manner in which the Government of the day dealt with the fall out is also something for us to learn from. Hasina was no novice and she knew the political cost of deleting BRR from the nation's basic law. So instead, after the words BRR, she added "param korunamoyi Ishwarer naam loiya shuru koritechi" which translated from Bangla means "commencing with the name of the most benevolent God"-a direct translation of BRR and yet the "Ishwar" brought the Hindus, Buddhists and Christians back into the constitutional fold. Similarly, after the injunction that Islam shall be the state religion, in art 2A, was added the clarification that the state shall treat all religions with equal respect and there would be no discrimination on the basis of any faith.
It is the season of lessons from Bangladesh. As it is the tradition of the House to commence with the national anthem and conclude the session with the national song, let the opposition member from Samajwadi Party, who felt his oath could include an afterword to explain why Muslims were allergic to Vande Mataram, look eastwards. His objection to Bankim Babus' beautiful description of mother India stems possibly from Traditional Islam's antipathy to the concept of nation and personification of the same. Learn from lakhs of your fellow faithful from Bangladesh whose hearts fill with pride when they sing "Ma tor mukher bani Amar Kane lage Sudhar moto" ( O mother of mine, words from your lips are like nectar to my ears), a song that the poet who put Bankim's Vande Mataram to music for the first time for the Congress Session in Kolkata, had penned as a protest song against Curzon's partition of Bengal and which came to be Bangladesh's national anthem.
We are in the brahma mahurtam of this Lok Sabha (notice how much I have laboured to be on the right side of acceptable discourse). If morning shows the day, I already dread the high noon!
There are three ways in which we can make amends. Option one: make the sloganeers retake their Oath Obama style, this time without slogan shouting. Option two: Make the sloganeers retake the oath this time making the Jai Sri ram Shouters raise slogans in praise of Rahim, and get the Allahuakbars to extol the virtues of our Maryada Purushottam. Option Three: leave Mantras and chantings to the Purohits and Maulavis and take a shapath that in the next 4 years and 11 months, before doing or saying anything in the House, you will meditate over the words of one Gujarati who also was loved the world over. He had said:
"Recall the face of the poorest and weakest man you have seen, and ask yourself if this step you contemplate is going to be of any use to him. Will he gain anything by it? Will it restore him to a control over his own life and destiny?"
Author Sanjoy Ghose is a Delhi based Lawyer.
Views are personal only.