Political Philosophy
Allegiance and Guardianship: Why the Constitution Does Not Prescribe One Oath
17 August 2026 · 12 min read
The oaths are the part of constitutional practice most easily mistaken for ceremony. They are administered in public, read aloud from a card, and reported for who fumbled the wording. Little turns on them in litigation. The natural assumption is that they are a single solemn formula, adapted lightly to name whichever office is being filled.
The text does not bear that out. The Constitution prescribes thirteen distinct forms of oath or affirmation — three set out in its own articles, and ten more in the Third Schedule. They differ from one another in their verbs, in what they promise, and in what they conspicuously omit. Read side by side, the differences are too systematic to be drafting variety, and they divide the offices of the State along lines that do not match any of the familiar ones.
Allegiance is not the same promise as preservation
Begin with the two forms placed in the body of the Constitution rather than in the Schedule.
Article 60 requires the President, before entering office, to swear that he "will faithfully execute the office of President ... and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India". Article 159 gives the Governor of a State the same form, altered only to name the office and the State.
Now set that against the oaths of office in the Third Schedule. A Minister for the Union swears "true faith and allegiance to the Constitution of India as by law established". So does a Minister for a State, a member of either House of Parliament, a member of a State legislature, a candidate for election to either, a Judge of the Supreme Court, a Judge of a High Court, and the Comptroller and Auditor-General.
The President and the Governors are the only officers under the Constitution who never swear allegiance to it. They are also the only ones who swear to preserve, protect and defend it.
Those are different promises. Allegiance is the posture of someone bound by a thing: a promise not to betray what one is already subject to. It is owed from within. Preservation is the posture of someone answerable for a thing's continuation — a promise directed at whatever might damage it, including from outside. One is the language of a member; the other is the language of a trustee.
The placement supports the reading. Every allegiance oath sits in a common Schedule, a shared list of forms to be filled in with a name and an office. The two guardianship oaths are written into the articles that create the offices themselves, so that the promise is part of the constitution of the post and not an item on a roster.
The same two forms carry one further clause found nowhere else: the promise to "devote myself to the service and well-being of the people". No Minister makes it. No legislator makes it. No judge makes it. The only officers directed by their oath to the welfare of the people are the two who are not elected by them.
The oath describes the office, not the person
It would be possible to read all this as a statement about the individuals concerned — that a President is expected to be a different sort of person from a Minister. Article 69 rules that out.
The Vice-President's oath, prescribed by Article 69, is an allegiance oath: true faith and allegiance to the Constitution, and faithful discharge of the duty upon which he is about to enter. It is closer to a member of Parliament's oath than to the President's, and it contains neither preservation nor devotion to the people's well-being.
But Article 60 applies in terms to "every President and every person acting as President or discharging the functions of the President". When the Vice-President acts as President under Article 65, he must therefore take the Article 60 oath as well. The same individual swears allegiance to the Constitution in one capacity and, in another, swears to preserve, protect and defend it.
If the oath were a statement about a person's loyalty, taking it twice in incompatible language would be incoherent. It is instead a description of a role. The office carries the posture; whoever occupies it borrows it for as long as he holds it, and returns it when he stands down.
Who is asked to be impartial, and who is not
A second division runs through the Third Schedule.
Forms IV and VIII, taken by Judges of the Supreme Court, Judges of the High Courts and the Comptroller and Auditor-General, require the officer to swear that he "will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will".
Forms I and V, taken by Ministers of the Union and of the States, require the Minister to "do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will".
That the executive's oath borrows the vocabulary of judging is worth pausing on. A Minister is chosen from a party, sits in a House on a majority, and is removable by that majority. Nothing about his selection is impartial. What his oath addresses is not how he came to office but the character of what he does in it — because a great deal of executive work consists of applying a general rule to a particular person, and at that moment the executive is in a judge's position without a judge's insulation.
Forms III-B and VII-B, taken by members of Parliament and of the State legislatures, contain no such clause. A legislator swears allegiance, swears to uphold the sovereignty and integrity of India, and swears faithfully to discharge the duty upon which he is about to enter. He does not swear to do right to all manner of people, and he does not swear to act without favour or affection.
The omission is defensible, and probably necessary. A legislator is elected on a programme, from a constituency, to press an interest and a view against competing ones. Preference is the function of the office, not a defect in its exercise. An oath of impartiality would describe a legislature that could not do its work.
The line the Third Schedule draws is therefore not between the elected and the unelected, and not between the political and the professional. It is between officers who apply the law to identified people and officers who make law for everyone. Impartiality is demanded of the first group in both its judicial and its executive branches, and is not demanded of the second at all.
Upholding is a positive duty, and it is narrowly assigned
Forms IV and VIII carry a closing clause that appears in no other form: "and that I will uphold the Constitution and the laws."
Only Judges of the Supreme Court, Judges of the High Courts, and the Comptroller and Auditor-General make that promise. Everyone else in the Schedule owes the Constitution allegiance, and owes it nothing further.
The distinction matters because allegiance is a negative undertaking. It is discharged by not betraying, and a Minister who does nothing at all has not breached it. Upholding is positive: it is a promise that the thing will be made to stand, which cannot be satisfied by inaction.
Collect the officers who are given a positive duty towards the Constitution's continuance and the list is short — the President and the Governors, who preserve, protect and defend it; the higher judiciary and the Comptroller and Auditor-General, who uphold it. Not one of them holds office by election, and not one of them can be removed by a vote of the electorate.
That the Comptroller and Auditor-General shares Form IV with the Judges of the Supreme Court, rather than having a form of his own, is the clearest statement the Constitution makes about what kind of office it intended the audit to be. Article 148(1) points the same way, providing that he "shall only be removed from office in like manner and on the like grounds as a Judge of the Supreme Court". An officer whose function is to report on how public money was actually spent was given a judge's tenure and a judge's promise, and was placed by the Schedule in the judges' company.
Secrecy is required only where accountability is
Forms II and VI have no counterpart anywhere else in the Constitution. They are oaths of secrecy, and only Ministers take them. Article 75(4) directs that the President shall administer to a Minister "the oaths of office and of secrecy" — two oaths, where every other officer takes one.
No judge swears secrecy. No legislator does. Neither does the Comptroller and Auditor-General, nor the President.
Stated plainly, this looks inverted: the only officers under a constitutional obligation of confidence are the ones answerable to an elected House. The explanation is in Article 75(3) — "The Council of Ministers shall be collectively responsible to the House of the People." Collective responsibility requires that the Council answer as one body for what it has decided. A Minister who discloses that he argued the other way inside the room converts a collective decision into a personal one and leaves nothing for the House to hold anyone jointly to account for. The secrecy oath is not an exemption from accountability; it is the condition that makes the collective form of accountability possible. Article 74(2), which bars any court from inquiring what advice Ministers tendered to the President, protects the same arrangement from the other side.
Not every difference is a decision
One difference between the two groups of oaths should not be pressed, and it is instructive to see why.
Every form in the Third Schedule apart from the two oaths of secrecy contains the promise to "uphold the sovereignty and integrity of India". Neither Article 60 nor Article 159 does. It would be easy to build something on that.
It would be wrong. The clause was not in the Constitution as adopted. It was inserted by the Constitution (Sixteenth Amendment) Act, 1963, an Act of five sections. It amended Article 19, substituted new clauses in Articles 84 and 173, recast Forms III and VII of the Third Schedule, and inserted the words into Forms I, IV, V and VIII. Articles 60 and 159 are not mentioned anywhere in it. The absence is not a judgment about the presidency; it is what happens when an amendment reaches a Schedule and stops there.
A document amended over seventy-six years accumulates differences of two kinds, and they read alike on the page. Some are decisions. Some are residue. The distinction between allegiance and preservation is in the Constitution as it was adopted, in adjacent parts, drafted together; the sovereignty clause is a 1963 insertion into one location. Only the first kind of difference will carry an argument.
The offices that make no promise
The bracketed heading of the Third Schedule lists the articles it serves: 75(4), 99, 124(6), 148(2), 164(3), 188 and 219. With Articles 60, 69 and 159, and the candidate oaths required by Articles 84(a) and 173(a), that is the whole of it. An officer not on the list takes no oath prescribed by the Constitution at all.
The Attorney-General for India is one of them. Article 76 requires him to be qualified for appointment as a Judge of the Supreme Court, gives him a right of audience in every court in India, and makes him the Government's legal adviser — and prescribes no oath. He holds office during the pleasure of the President.
The Chief Election Commissioner is another, and the omission is harder to account for. Article 324(5) gives him the same protection of tenure as a Judge of the Supreme Court: he "shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court". The Constitution gave that office a judge's security without giving it a judge's oath. Where the Comptroller and Auditor-General received both, the Election Commission received only the first.
The last case is the plainest. There is no oath of office for the Prime Minister. Article 75(4) covers him as it covers everyone else in the Council, and the form he subscribes is Form I — the oath of "a Minister for the Union". Whatever else the office has become, the Constitution asks the head of government for no promise that it does not ask of the most junior member of his Council.
What the set of oaths records
Taken together, the forms distribute three separate things, and they distribute them along three different lines.
Allegiance is required of nearly everyone, and is the ordinary condition of holding office. Impartiality is required of those who apply the law to particular people, whether they sit in a court or in a ministry, and is not required of those who make it. Responsibility for the Constitution's continuance — the positive duty, expressed as preservation or as upholding — is confined to offices that no election can reach.
None of these lines is the separation of powers, and none of them is the division between the elected and the appointed. They cut across both. That is the substance of what the oaths settle: that the duty to obey a constitution, the duty to apply it evenly, and the duty to keep it standing are three different obligations, owed by overlapping but distinct sets of officers, and that a document which prescribed a single oath for all of them would have concealed the difference.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.