Does appointment of Yogi Aditynath as CM of UP offend Constitution?


The pseudo-secularists are shouting from the rooftops that the secular character of the Constitution has been murdered. Why? A Hindu hardliner Yogi Adityanath has been appointed as the Chief Minister of Uttar Pradesh. It is really astonishing that they do not understand even the basic provisions of the Constitution. Or, may be, they are liars and mislead the public about the provisions of the Constitution even though they may be understanding the same.

Yogi AdityanathWe are a parliamentary democracy. One who commands majority in the legislature can head the government. It is that simple. Secularism has no connection with appointment of chief minister in a state. The chief minister is appointed on the basis of the fact as to whether the person being so appointed commands majority in the legislature. Secularism, while an important concept under the Constitution, has no bearing on this limited question, though it may be relevant for certain other issues as I would point out slightly later in this article.

Clause (1) of Article 164 of the Constitution lays down that the Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister. Clause (2) of Article 164 further provides that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.

Therefore, it should be quite clear from these provisions in the Constitution that the Chief Minister and his council of ministers, who are appointed by the Governor, must be in a position to command majority in the legislative assembly in the state. This is so because “the Council of Ministers shall be collectively responsible to the Legislative Assembly”. This is an important principle of the parliamentary democracy that the council of ministers must command a majority in the Parliament or the State legislature, as the case may be. Article 164 of the Constitution gives effect to this basic principle of the system of parliamentary democracy.

Where a particular political party has won a clear majority in the election, the Governor has no option but to appoint the leader of such political party as Chief Minister and invite him to form the Government.

The only thing that is required to be seen at the time of appointment of a chief minister is whether that person commands majority in the legislative assembly of the state. No other issues are relevant in this regard. Of course, there are certain disqualifications mentioned in the Constitution as to who can become a minister. For example, a person who is disqualified to be a member of legislature may be disqualified to be a minister. There may be restrictions on a person convicted of certain offences on being a minister. Likewise, a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister. But, there is no disqualification for being a minister on the ground of a person holding a particular political or religious view.

In the case of Yogi Adityanath, he is a sitting member of Lok Sabha, i.e., the lower House of the Parliament. In fact, he is a 5-time Member of Parliament. Nobody has successfully challenged his election to the Parliament on the ground of his political or religious views. So, if he can be a member of the Lok Sabha, then he is clearly eligible to be a member of the state legislature as well. There is no additional disqualification for being a member of a state legislature. Once it is considered that he is eligible to become a member of the state legislature, he is legally and constitutionally eligible to become a minister or the chief minister of the state. Of course, he must command a majority in the legislature. In this particular situation, Yogi Adityanath commands the confidence of 325 members of the Uttar Pradesh state legislative assembly from out of the house strength of 403. He was duly elected leader of the Bhartiya Janata Party (BJP) which itself has 312 members in the house, and there are 13 members of its alliance partners. So, clearly, Yogi commands majority in the legislative assembly, and not being disqualified to be a member of the legislature in any manner, he is thus eligible to become the chief minister of the state. This is unequivocally clear from the provisions of the Constitution. There is no provision in the Constitution which debars him from being appointed as chief minister of a state. This should be crystal clear to anyone who understands the Constitution of India.

Before I turn to the concept of secularism, let me briefly point out another relevant aspect in this regard. Recently, on 2 January 2017, a seven-judge bench of the Supreme Court has delivered a very important judgment in the case of Abhiram Singh v. C.D. Commachen (Dead) By LRs. & Ors., holding that an appeal for votes during elections on the basis of religion, caste, race, community or language, will amount to a “corrupt practice” and call for disqualification of the candidate even if such appeal was made on the religion, etc., of the voters. This judgment was delivered by the court while interpreting Section 123(3) of the Representation of the People Act, 1951. However, in the case of Yogi Adityanath, there is no such allegation of making appeal for votes in the name of religion, etc. In fact, he has not even contested election to the UP legislative assembly so far and he was not a candidate at the recent UP assembly elections. Therefore, this ruling is not applicable to him. He will now have to contest election and become a member of the UP legislature within a period of 6 months. Therefore, this issue is not relevant for Yogi Adityanath; yet, I have pointed out this issue to answer any possible doubt in this regard. In fact, I may also point out that since Yogi Adityanath is a 5-time Member of Parliament, none of his elections to the Lok Sabha has been successfully challenged on this or similar grounds, i.e., having made appeal for votes in the name of religion, etc.

Let me now turn to the concept of secularism under the Indian Constitution. Article 25 of the Constitution basically embodies the concept of secularism. When the Constitution was drafted, it was not expressly mentioned anywhere in the Constitution that India is a secular state. However, the provisions of Articles 25 to 30, Article 14, 15, 16 and Article 44 clearly showed the intention of the framers of Indian Constitution that India was to be a secular state. Subsequently, in 1976, by the 42nd Constitutional Amendment, the Preamble was amended and the word “secular” was inserted therein to expressly declare that India is a secular state. Thus, what was implicit became explicit.

India is a pluralistic society with people from several religions residing here. Religion has been a very volatile issue in India, before as well as after independence. The Constitution thus maintains balance and neutrality in this area.

Secularism in India does not mean “no religion”. It means respect for all faiths and religions. The state does not identify itself with any particular religion.

While individuals are free to profess and practice any religion, the state has no religion. State treats all religions alike. In fact, secularism has been declared to be a basic feature of the Constitution by Supreme Court in the Bommai case [S.R. Bommai v. Union of India, (1994) 3 SCC 1 : AIR 1994 SC 1918].

Secularism is not capable of a precise definition. Secularism is more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions. In the above Bommai case, Justice Sawant observed:

“…religious tolerance and equal treatment of all religious groups and protection of their life and property and of the places of their worship are an essential part of secularism enshrined in our Constitution.”

Likewise, in that case, Justice Jeevan Reddy observed that while the citizens of this country are free to profess, practice and propagate such religion, faith or belief as they choose, so far as the State is concerned, i.e., from the point of view of the State, the religion, faith or belief of a person is immaterial. To it, all are equal and all are entitled to be treated equally. In the affairs of the State (in its widest connotation) religion is irrelevant; it is strictly a personal affair. In this sense and in this behalf, our Constitution is broadly in agreement with the US Constitution, the First Amendment.

Thus, it should be clear that an individual has a right to practice his own religion. But, the State has no religion. This means that the Government has no religion and the Government shall not discriminate on the grounds of religion. The Government shall not favour or disfavour a particular religion. The Government shall treat all religions equally.

It is pertinent to point out that Article 25 of the Constitution, which embodies the principle of secularism and religious freedom in India, lays down that subject to public order, morality and health and to the other fundamental rights, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

Now, of course, the expression “all persons” also includes the Chief Minister of a state. A chief minister of a state also has the same freedom of religion as any other person has in India. But, what is prohibited is that the Government shall not favour or disfavour any particular religion.

Therefore, like any other citizen of India, Yogi Adityanath also has the same freedom of conscience and the right freely to profess, practise and propagate religion under Article 25 of the Constitution. Merely because he becomes chief minister, his personal fundamental right under Article 25 of the Constitution is not taken away. Conversely, merely because he is a Hindu hardliner in his personal capacity and merely because he professes, practises and propagates his religion (as per the fundamental right guaranteed under Article 25), he cannot be stopped (or declared ineligible) from being chief minister of a state.

Of course, once he occupies the position of chief minister of a state, while acting in his official capacity as such chief minister, he cannot discriminate against any religion. While acting in the capacity of chief minister of Uttar Pradesh (as distinguished from his personal capacity), if he takes any action by which he favours or disfavours any religion which violates the principles of secularism, then such specific action can be challenged in the courts of law and such action can then be quashed and set aside by the courts, being violative of the provisions of the Constitution. However, that is an issue that can be relevant only in future, i.e., only when in future he takes some action in his official capacity as chief minister which violates the principles of secularism, which can then be challenged in the courts, i.e., that particular offensive action in his official capacity can be challenged, and the courts in India are independent and capable enough to quash such action.

But, merely on the presumption that he would take any such official action in future which may violate the secular character of the state, insisting that appointment of Yogi Adityanath as chief minister is murder of the concept of secularism under Constitution or that it is against the secular character of the state is not permissible under law. Constitution does not work on such pre-conceived notions and probabilities of a future action. You cannot act on generalities but you have to challenge particular official action, if any, in future, which offends the constitutional provisions, including the secular character of the state. But, on the ground that such a violation may PERHAPS take place in future, or that his past personal views were of a hard-core Hindu and the like, he cannot be prevented from occupying the position of a chief minister of a state. This is impermissible under the Constitution, as explained above, if he commands majority in the legislature.

On the other hand, let us see some examples from the other side. Dr. Manmohan Singh, the then Prime Minister, belonging to Congress Party, said in 2006 that the first claim on resources was that of the Muslims. His official statement was clearly in violation of the secular character of the state. Yet, what action was taken against him by the pseudo-secular intellectuals?

Likewise, during the UPA rule under Dr. Manmohan Singh, a very large number of scholarships were given only to crores of minority students (such as Muslims, Christians) and not even a single Hindu student was given such type of scholarships even if such Hindu students were equally deserving. This official action was clearly in violation of secularism. But, what happened to the UPA Government? Let me clarify that I am not against any scholarship being given to minority students; my only objection is why should you deprive the Hindu students from the same scholarship even though they are equally deserving? Why can’t you give scholarships to all poor students on the same income yardsticks without there being any discrimination against Hindu students or any other particular religion? Give scholarships to poor students of all religions equally. This is what is secularism.

Here, it is pertinent to point out that Narendra Modi was against such minority scholarships when he was the chief minister of Gujarat, mainly because they were discriminatory on grounds of religion. But, after he became Prime Minister of India, such minority scholarships have been continued under his rule. Since Modi also had a Hindu hard-core image (at least in the past), does it not show that even a hard-core Hindu can continue a pro-minority official plan which may even be discriminatory to his own Hindu community? The same may in fact happen with Yogi Adityanath also, in UP. Secondly, which pseudo-secular intellectual has challenged such discriminatory and anti-secular practice of minority scholarships being given by Modi Government? Moral of the story is: if you favour minorities and discriminate against majority community, it is secularism; but, even if just speak in favour of the majority community (even though you don’t actually favour them through action) that is anti-secular!!!

Let me also point out that the Government gives Haj Subsidy to Muslim pilgrims who go to Haj. During 2011, about 125,000 pilgrims from India went for Haj, and the total Haj subsidy was a huge Rs. 685 crore (see my article for more details: Legal basis of Haj subsidy abolition by Supreme Court). Is it a secular activity? But, who bothers?

These are just a few illustrations which are sufficient to show double standards of the pseudo-seculars. I don’t want to multiply such illustrations.

To conclude, I may say that there is nothing wrong in the appointment of Yogi Adityanath as chief minister of Uttar Pradesh, under the Constitution. This is in full compliance with the principles of the Constitution, including secularism, notwithstanding the objections being raised by the pseudo-seculars (including some opposition leaders and some sections of the media). Moreover, in his personal capacity, Yogi has the same right of professing his religion which is given to any other citizen. Of course, while acting in his official capacity as chief minister, Yogi is expected to show equal treatment to all religions and he cannot discriminate against any religion in his official acts; and, if does so, those specific actions which lead to discrimination against any particular religion may be challenged in courts, and I am sure the courts would quash such discriminatory actions, if any. But, such future possibility (if any) cannot be a ground to question his appointment as chief minister of Uttar Pradesh.

About Dr. Ashok Dhamija

Dr. Ashok DhamijaDr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, is author of 3 law books, and is an ex-IPS officer. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. List of his Quora Answers.

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