- (1.) HAVING heard Mr. M. C. , Bhoot at length and after considering the constitutional provisions relating to issues involved in this case, I am of the opinion that the issues raised are of far reaching constitutional importance. They also involve serious consideration of the respective sphere of jurisdiction of judiciary and the legislative wing of the State. Slightest lack of mature consideration on either side has also got the potentiality of sparking a controversy between the above two wings of the State as happened in Uttar Pradesh in 1964 in Keshav Singh's case.
(2.) THE precedents are not many and the decision is likely to be of far reaching consequences both in the sphere of Constitutional Law and may have some repercussions in the sphere of International Law too. THE stakes being too high, there arises necessity of a comprehensive detailed consideration of them by a larger Bench of this Court. I have therefore come to the conclusion, that I should not embark upon the uphill and difficult task of finally deciding these serious Constitutional matters sitting alone. This case may therefore be put up before Hon'ble the Chief Justice for the constitution of a larger Bench for the consideration and authoritative decision on the issues involved in this case. It would be for the Hon'ble Chief Justice to constitute either the special Bench of all the Judges of this court or lesser number of Judges as he may deem proper. It would again be for Hon'ble the Chief Justice, either to direct that Bench to decide only the important points which I am hereafter mentioning in this order of reference; or to direct that the entire writ application would be considered and decided by that Bench. The facts of this case are very short and simple. The petitioner Shri Ram Rakh Vyas, a citizen of India, for removing and restraining Shri Atal Behari Vajpayee from working in the Union Cabinet and acting as Minister for External Affairs of the Union of India. The ground urged is that on 18-4-78, he has violated oath of secrecy by disclosing in the Parliament the so-called secret clause of Simla Pact, entered into between the ex-Prime Minister of India, Mrs. Indira Gandhi and Shri Z. A. Bhutto, ex-Prime Minister of Pakistan. It is also urged that Shri Vajpayee through his associate member Shri Swami Subremaniam made another disclosure on 8 5 78 that Late Shri Jawaharlal Nehru supplied arms and ammunition to Khampa community of Tibet to fight against Red China. To substantiate the charge of disclosure as alleged, the petitioner instead of submitting text of speech of Shri Vajpayee as printed by Lok Sabha Secretariat, produced front page of Hindustan Times dated April 20, 1978. The news published under the caption "ex-PM reached 'secret' pact with Bhutto" is as follows, "new DELHI, APRIL 18external Affairs Minister Atal Behari Vajpayee's reply to the Lok Sabha debate categoric statement that Mrs. Indira Gandhi did reach "some sort of secret understanding" with Mr. Z. A. Bhutto in Simla in 1972. To stress the seriousness of the allegation, he said he was making the statement as India's Foreign Minister after acquainting himself with the relevant documents and also piecing together information collected from "knowledgeable individuals. " Mr. Vajpayee statement sent a wave of anger across the Congress and Congress (I) benches and members demanded that the relevant documents be placed on the table of the House as, otherwise, the allegation would be regarded as unsubstantiated. The reference to the Simla Agreement came toward the end of Mr. Vajpayee's hourlong reply marked by eloquence and wit and greeted with repeated cheers from the Treasury benches. He spoke first in Hindi and then in English in order to, as he put it, steer clear of the language controversy. The External Affairs Minister, who stoutly defended the policy of non-alignment and reported great progress in the improvement of relations with the neighbouring countries, as well as the super powers, told the members that he had always been puzzled how "all of a sudden" Mrs. Gandi and Mr. Bhutto had reached an agreement at a post-dinner meeting when the hope of an agreement had been given up. Since taking over as Minister of External Affairs, he had occasion to go through various documents relating to the discussions. . . . " Mr. Vyas has also filed front page of "rajasthan Patrika" Jaipur dated 8 May, 1978, in which the disclosure by Shri Swami M. P. to press correspondents, is cantained as follows under the caption, *** No affidavit of (he press correspondent who was present in the press meet and who would vouchsafe about the truth of the statement or the Editor of the paper or the news columnist has been filed. Shri Swami has not been joined as a party in the writ petition. This court has held in Simla pact case S. R. Bhansali vs. union of India (1) that the court cannot take notice of such utterances of individual Minister of political leaders while making public speeches. There are prescribed norms for the Government to express its intentions in such matters. Justice V. P. Tyagi, as he than was, repelling the argument of the petitioner's counsel, observed as under, "mr. Lodha wanted to refer to a statement made by the Defence Minister in a public meeting that Indian Government shall not return an inch of land conquered by it and from this he wants this Court to infer that the Indian Government had declared its intention unequivocally to assimilate this part of the territory into India. I regret that court cannot take notice of such ulterances of individual Minister or Political while making public speeches. It was also held in the case of Samant Balkishan vs. George Fernandes (2) that newspaper reports are not admissible unless the correspondent is examined to prove it, However, sitting alone, I do not think it proper to dismiss this writ petition on such a think, technical ground, as I am of the opinion that such serious controversies must be decided, one way or the other, by at least a larger Bench, may be of two, three or more judges, as the Hon'ble Chief Justice may be pleased to constitute.
(3.) NOW coming back to the merits, Vajpayee's removal is being sought on the precise ground that by the above disclosures, he has violated the oath of secrecy taken as Minister of the Central Cabinet under Article 75 (4) of the Constitution. The oath of secrecy prescribed for a Central Minister is contained in Third Schedule of the Constitution and is as follows, "ii I. A. B. swear in the name of God that I/solemnly affirm will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as Minister for the Union except as may be required for the due discharge of my duties as such Minister. " In our Country, we have got the cabinet system where the members of the cabinet have got to work on the norms of collective responsibility. An essential condition of the efficient working of a cabinet solidarity, is the maintenance of strict secrecy of what passes on in a cabinet meeting so that dissensions may not be brought to light. Jennings is of the view that an essential condition of a cabinet solidarity is the maintenance of strict secrecy of what passes at a cabinet meeting. According to him, this is essential because the dissensions may not be brought to light (3 ). The need for secrecy is based on the principle which follows from the confidential nature of the advice given by the Ministers to the head of the executive under Article 74 cl. (2) of the Constitution. (4) It is also needed so that free and frank discussions of the policies at the highest level may be possible and the ministers may work as a team and their individual views are prevented from being given publicity. The principle of secrecy was adopted in our Constitution on the basis of the similar provisions in the Constitutions of various countries of the world. The cabinet system in England requires strict secrecy. In the 4th French Republic the rules relating to the conduct of business in the counsel of ministers provided as follows, "secrecy of the deliberations constitutes a state obligation which engages the honour of all present at meetings of the council of Ministers (5 ). " Every Privy Counsellor in England has to take an oath of secrecy not to publish information 'obtained in the service of the Crown'. In our Constitution, the oath prescribed in Form II of Third Schedule covers secrecy of (a) matters brought under the consideration of a Minister and (b) information obtained by him as a Minister. The exception provided in the oath is that such matter can be disclosed to other persons as may be required in the due discharge of duties of the Minister. The exact phrase used in oath is as follows: " except as may be required for the due discharge of my duties as a Minister". ;