Kolkata, June 28 (IANS) Even as uncertainty remains over the swearing-in of two newly-elected Trinamool Congress MLAs, legal experts say that the Constitution gives West Bengal Governor, CV Ananda Bose, the final say and the two legislators can’t participate in the Assembly proceedings without his permission.
Legal experts say that Article 188 and Article 193 of the Constitution give the ultimate authority to the Governor on this count.
Article 188, which is in relation to the “oath or affirmation of the members of the Assembly or Legislative Council” clearly states, “Every member of the Legislative Assembly or the Legislative Council of a state shall, before taking his seat, make and subscribe before the Governor, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.”
On the other hand, Article 193, which is in relation to the “Penalty for sitting and voting before making oath or affirmation under Article 188 or when not qualified or when disqualified” clearly states, “if a person sits or votes as a member of the Legislative Assembly or the Legislative Council of a state before he has complied with the requirements of Article 188, or when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament or the Legislature of the state, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the state.”
Explaining the legal complexities in the matter, senior counsel of Calcutta High Court Kaushik Gupta told IANS on Friday that “these two Articles give the Governor the last word regarding the oath taking of the MLAs, be it in terms of the venue (Raj Bhavan or State Assembly) or who will administer the oath (Governor himself or any person nominated by him).”
“So there is nothing much to do in this case, unless the Governor softens his stand. Of course there is a provision for the two MLAs to move court in the matter. But in that case their participation in the Assembly proceedings as elected members will be delayed till the verdict on this count comes,” Gupta explained.
Probably keeping the legal complications in mind there is an attempt by the Assembly authorities to placate the Governor.
West Bengal Assembly Speaker Biman Bandopadhyay on Thursday wrote to President Droupadi Murmu seeking her intervention in resolving the impasse over the issue.
He also wrote to the Governor requesting the latter to come to the Assembly, administer the oath and end the confusion over the matter.
On the other hand the Trinamool Congress is giving the issue a political dimension as the two newly-elected MLAs, Sayantika Banerjee and Reyat Sarkar plan to continue with their dharna at the Assembly on Friday too.
They are insisting that the Governor come to the Assembly and administer the oath there.
Legal experts point out that there had been a procedural lapse on the part of the state government too.
The initial communication made to the Office of the Governor on the oath ceremony went from the Assembly, whereas the protocol and tradition says that the initial communication should have gone from the state Parliamentary Affairs Department.
–IANS
src/rad
