Chief of Army Staff Gen. M.M. Naravane has said that every soldier, whether a jawan or an officer, takes an oath to follow the Constitution “and that is what should guide us in all our actions and at all times”. Recently, when some state governments fulminated against the CAA and NRC/NPR by announcing that they would not implement them, the Union government reacted by saying that they could not do as they were bound by an oath to uphold the Constitution. Whenever there is some controversy, the Constitution is invoked and people are reminded of having taken an oath to preserve, protect and defend it. The question is: What is the meaning of the oath and what does it mean to uphold the Constitution?
When Subhas Chandra Bose refused to join the ICS, his brother Sarat Chandra Bose wrote to him that his father was distraught. Bose wrote back that he could not take the oath of fealty to the British monarchy. However, when the interim government of India assumed office on September 2, 1946, ministers took an oath of loyalty to the British Crown and their successors. Rajendra Prasad has written in his autobiography that it irked many how far it was proper to take an oath of allegiance to the monarchy when they spent their lives fighting British imperialism. But Prasad has ratiocinated that the monarchy acts on the advice of the Cabinet, and he has to sign any paper presented by the Prime Minister even if it were his own death warrant. He cited the example of Edward VIII who had to abdicate the throne on the advice of Prime Minister Stanley Baldwin. Prasad has written: “If Baldwin can advise the King to leave the throne, Indian ministers too can advise him to end British rule in India despite the oath.” This may be an example of casuistry. Edward VIII preferred to relinquish the throne for his love in favour of his younger brother, not just because of the advice of the Prime Minister. A constitutional crisis rocked Britain in 1936 when King Edward VIII proposed to marry Wallis Simpson, an American socialite married twice who was pursuing her second divorce.
Anyway, the oath can be interpreted the way one likes. But how does one uphold the Constitution? American President Franklin D. Roosevelt had a bitter tussle with the Supreme Court, which struck down the National Industrial Recovery Act and also the Agricultural Adjustment Act enacted under the New Deal policy to salvage the country from the Great Depression. In 1936, while campaigning for the election, President Roosevelt noticed a lady struggling to approach him with some papers. He asked his security staff to let her come and hand over the papers. It was a letter addressed to him, “I wish you could do something to help us girls…We have been working in a garment factory, and up to a few months ago we were getting our minimum pay of $11 a week. Today 200 of us girls have been cut down to $4, $5 and $6 a week. You are the man that can do anything about it.” Later, while chatting with newsmen, he rued that he wanted to solve problems like child labour, minimum wages and maximum hours, but he did not have any power to do so. He was elected and after taking oath, he commented grumpily: “When the Chief Justice read me the oath and came the words ‘Support the Constitution of the United States,’ I felt like saying: yes, but is the Constitution of the United States, as I understand it, flexible enough to meet any new problem of democracy — not the kind of Constitution your court has raised up as a barrier to progress and democracy?”
The concept of the oath has its roots in different religions. Judaism prizes it; God swears that “he will never again curse the ground because of man and never again smite every living thing” (Genesis 8:21). Biblical commentator Rashi elucidates that the repetition of the term “never again” serves as an oath. Eliezer, the chief servant of Abraham, is the first person in the Biblical tradition to take oath as Abraham asked him not to take a wife for his son Isaac from the daughters of Canaan, but that he should select one from Abraham’s own family. In the Roman tradition, luppiter Lapis (the Jupiter stone located in the Temple of Jupiter) was considered an Oath Stone upon which oaths were taken. Orcus, the infernal deity, punished those who backtracked from their oaths.
However, many religious groups like Quakers and Anabaptists are totally opposed to the taking of oaths, and they also buttress their position from Biblical injunction derived from Matthew 5:34-37. Here, Christ commands, “But I tell you, do not swear an oath at all: either by heaven or by earth or anything else. Let your ‘Yes’ be yes, and your ‘No’ no, or you will be condemned.” Quakers assert that one must be truthful at all times; taking legal oath only allows for duplicity — truthfulness in the legal context is more important than otherwise. However, other Christians do not subscribe to this view and refer to other parts of the Bible to prove that it is viewed favourably. Quakers suffered frequent incarceration for refusing to swear loyalty oaths. Perpetual dissenter and Quakers’ founder George Fox was jailed many times. He was jailed when he, while testifying in the court, threw a gauntlet to the judge to find any specific passage in the Bible where Jesus or his apostles took oath. Even though the judge could not cite any such passage, Fox was not let off and sent to jail. But the legal reforms from the 18th century onwards brought about a big change that in Britain one could now make a solemn affirmation instead of taking an oath.
In Germany, the Weimar Constitution was drafted after much deliberation which gave all possible rights to the people. But Article 48 allowed the President to suspend civil rights and operate independently in an emergency. Adolf Hitler became Chancellor in January 1933 and within weeks he took recourse to Article 48 to quash many civil rights. Soon thereafter in March, he brought in the Enabling Act to enact laws without the approval of Germany’s Parliament or President. He forcibly prevented Communist MPs from voting. Thus, he enacted the law and became a dictator, the oath to uphold the Weimar Constitution notwithstanding. Napoleon also gave the first Republican Constitution to France but later declared himself monarch for his whole life, despite his pledge to protect the Constitution.
What is needed is honesty of purpose. The law is the law because of its binding nature. So, even the ordinary law is binding on everyone, leave alone the Constitution, whether one takes a pledge to abide by it or not. Anyone committing a crime would be prosecuted according to the penal code. There can be no rule of law if people do not respect laws. The Quakers were right — that one must be truthful at all times....