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inder Mohan Bhardwaj Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 1135 of 1979
Judge
Reported inAIR1980Delhi20
ActsConstitution of India - Article 74; Official Secrets Act, 1923 - Sections 3
Appellantinder Mohan Bhardwaj
RespondentUnion of India and ors.
Advocates: P.N. Lekhi, Adv
Cases ReferredCharles We. Baker v. Joe Carr
Excerpt:
.....to be a minister.; 1. though article 102 does not mention disqualification for being a minister, a person will be ineligible for being a minister if he suffers from any of the disqualifications as mentioned in article 102. because if there is any constitutional bar on a person being a member of either house of parliament it surely cannot be accepted that a minister who holds a more responsible position should be free from fetters of the disqualifications laid down in the constitution.; 2. respondent no. 3 clearly denied the allegations and has castigated it as a wild charge and as malicious. in proceedings of quo-warranto, the court is not competent to determine the veracity or otherwise of the respective allegation made in the two letters of respondents 2 and 3. howsoever,..........by which he swears that he will not directly or indirectly communicate or reveal to any person or persons any matters which shall be brought under his consideration or shall become known to him as a minister for the union except as may be required for the due discharge of his duties as a minister. the purpose of referring to the oath was in support of his argument that if a person was an agent of an intelligent agency of a foreign government he would by its very nature be violating the oath of secrecy and cannot obviously remain a member of the council of ministers. that a spy cannot be qualified to be a minister is a self evident proposition with which no one can have even a moments difference. the difficulty comes when mr. lekhi asks us to accept the allegation made in the.....
Judgment:

Sachar, J.

(1) By this petition the petitioner prays for the issue of a writ of quo warranto and seeks a declaration that respoadent No. 3, Shri H. N. Bahuguna, the Finance Minister in the Government of India, has no right under the Constitution of India to continue as a member of the Council of Ministers headed by respondent No. 2, Choudhary Charan Singh, the Prime Minister of India.

(2) The challenge to the appointment of respondent No. 3 is appearently inspired by the publication in the issue of 12th August, 1979, of Sunday Standard, City Edition, New Delhi, a Letter written by respondent No. 2 on 2-4-1976 to Shri Morarji Desai, the then Prime Minister of India and the letter written by respondent No. 3 to Shri Morarji Desai on 10-7-1978. It is mentioned in the petition that respondents 2 and 3 were at the relevant times in April-July, 1978 members of the Council of Ministers in Desai Cabinet and were holding the portfolios of Home and Petroleum respectively. The letter of 2-4-78 written by respondent No. 2 to Shri Morarji Desai starts by saying that the same was being wirtten to bring to the notice of the Prime Minister the doings or the activities of a colleague which cannot but bring the government to disrepute and lead to the ruination of the Janta Party. The letter mentions a number of incidents but the present petition is confined to and Mr. Lekhi for the petitioner also restricted himself to the portion of the letter where int reads 'respondent No. 3 is til close touch with the .Communist Party of India and is its great support'. The letter goes on to say that through it he has tried to establish contacts with the USSR. In fact he is regarded in some circles as an agent KGB'. This letter was shown to respondent No. 3 by Shri Morarji Desai with a view to giving him an opportunity of having his say with regards to the contents thereof, and that is how the letter of 10-7-78 was written by him. Respondent No. 3 has described the letter of 2-4-1978 of respondent No. 2 as a master-piece in unsubstantiated invectives and self-assumed of this writ petition, respondent allegation which is the subject matter of this writ petition, respondent No. 3 described this as sad and sordid reading and describes the plea that he was a friend or supporter of C.P.I, and through it he tried to establish direct contacts with Ussr as worse than self condemnatory. The letter further says what is worse is that the Home Minister Choudhary Charan Singh little Realizing the valve of office he holds makes a wild charge of my so-called connection with Kgb as claimed by some unidentified sources. If the Home Minister , a country makes this charge without adequate or possible proof is only needs a careful thought whether such a position of trust or charge is in the safe hand. In the absence of any evidence the charge are obviously malicious the Home Minister must be called upon either to prove the charges or withdraw them unconditionally. The petition alleges that Kgb mentioned in the letter of respondent No. 2 is the political intelligence agency of Ussr recruiting local agents who in turn further the political aims and objects of the Ussr even if its aims go contrary to the best interests of the country of which the agent is a citizen. The petition alleges that respondent No. 2 as the then Home Minister in the Union Cabinet must be presumed have acted not on mere hearsay but must have before him concrete information before he leveled such serious allegations against his, own cabinet colleague. It is on the basis of these allegations that it is averred in the petition that the charges of foreign connection made in the letter of April 2, 1978, by Choudhary Charan Singh not with standing the reply by Shri Bahuguna on July 10, 1978, wholly and totally disqualifies and renders respondent No. 3 constitutionally unfit to be and continue in his office as a Minister in any cabinet as long as the said charges hold the field. It is also mentioned in the petition that there is no denial by respondent No. 2 or respondent No. 3 of having written the letters as have been published in the Sunday Standard dated 12-8-1979. For the present purpose we will proceed on the assumption that these letters were infact written. The question however still remains whether these letters result in malring respondent No. 3 ineligible to remain a member of the Council of Ministers.

(3) Article 74 of the Constitution provides for a Council of Ministers to aid and advise the President. Article 75(1) provides for the appointment of Ministers on the advice of the Prime Minister. No qualification as such is prescribed in the Constitution to be appointed a Minister. There is of course a bar under Article 75(5) inasmuch as that a Minister who for any period of six consecutive months is not a member of either House of Parlaiment shall at the expiration of that period cease to be a Minister. This clause obviously is not. applicable because respondent No. 3 was a member of Lok Sabha before it was dissolved on 22-8-1979. Article 102(1) provides for disqualifications for being chosen as and for being a member of either house of Parliament and mentions various eventualities. Sub-clause (d) of Clause (1) of the Article contemplates an eventuality if he is not a citizen of India or has voluntarily acquired the citizenship of a foreign State or is under any acknowledgement of allegiance or adherence to a foreign State. Clause (c) provides that if he is so disqualified by or under any law by Parliament. The said disqualification has been provided in the Representation of People Act and it is not Mr. Lekhi's case that respondent No. 2 is disqualified under any provision of the said Act. The sole argument of Mr. Lekhi on which he seeks a declaration about the Constitutional ineligibility .of respondent No. 2 to remain a Minister is on the ground of the alleged disqualification mentioned in Article 102(1)(d) i.e. under any acknowledgment of allegiance or adherence to a foreign State. Mr. Lekhi contends that if a person cannot be a member of the Parliament if be is under any acknowledgement of allegience or adherence to a foreign State, it inevitably follows that such a person is also disqualified to be a Minister. Though Article 102 docs not mention disqualification for being a minister, we are prepared to accept that a person will be ineligible for being a Minister if he suffers from any of the disqualifications as mentioned in Article 102. This is both logical and understandable. Because if there is any constitutional bar on a person being a member of either House of Parliament it surely cannot be accepted that a Minister who holds a more responsible position should be free from fetters of the disqualifications laid down in the Constitution. The broad argument that if a person is disqualified under Article 102(1)(d) to be a member he will not be entitled to be a Minister can be readily accepted. But that does not in any way advance the case of the petitioner. No suggestion is given that respondent No. 3 suffers from any of the disqualification mentioned in sub-clause (a), (b), (c) and (e) of clause I of Article 102. Only clause (d) is invoked. Now admittedly respondent No. 3 is a citizen of India and has not acquired the citizenship of foreign State. This was not disputed by Mr. Lekhi. He stressed solely the plea that respondent No. 3 must be held to be disqualified because of being under acknowledgement of allegiance or adherence to a foreign State. Mr. Lekhi has referred to the oath of secrecy that a minister has to take in terms of third schedule to the Constitution by which he swears that he will not directly or indirectly communicate or reveal to any person or persons any matters which shall be brought under his consideration or shall become known to him as a minister for the Union except as may be required for the due discharge of his duties as a minister. The purpose of referring to the oath was in support of his argument that if a person was an agent of an intelligent agency of a foreign government he would by its very nature be violating the oath of secrecy and cannot obviously remain a member of the Council of Ministers. That a spy cannot be qualified to be a minister is a self evident proposition with which no one can have even a moments difference. The difficulty comes when Mr. Lekhi asks us to accept the allegation made in the letter of respondent No. 2 as being equivalent to a finding that respondent No. 3 has become disqualified under Article 102(l)(d) as he is under acknowledgement of allegiance or adherence to a foreign State. This we find impossible to do on the present State of the record. Respondent No. 3 has clearly denied this allegation and has castigated it as a wild charge and as malicious. We are not called upon nor are we competent in these proceedings of quo warranto to determine the veracity or otherwise of the respective allegations made in these two letters of respondents 2. & 3. Mr. Lekhi made much of the fact that in view of the completely contradictory stand taken by respondents 2 and 3 it is apparent that one of them is not telling the truth. This argument of Mr. Lekhi itself shows the weakness in his stand that respondent No. 3 should be held to be constitutionally disqualified to be a minister, even when all that counsel can say in support of such an allegation is the letter written by respondent No. 2. Mr. Lekhi emphasises that the allegation that respondent No. 2 being a Kgb agent was made by no less a person than the then Home Minister of the country and the present Prime Minister and urges that this is a proof of its correctness. We accept that the allegation made in the letter of respondent No. 2 is a serious one. We also accept that the allegation has come from a very responsible quarter. But we must at the same time also note that this allegation has been denied and repudiated with vehmence by respondent No. 2. an equally responsible personage. Mr. Lekhi sought to contend that the acknowledgement of adherence to a foreign State does not necessarily have to come from the person concerned, but may even be made by a third person and that would be enough to disqualify a person against whom this acknowledgement is made. He was however cautious enough to realise the gravity of he implication of this interpretation because then any political rival may acknowledge that his opponent owes adherence to a foreign State and on this argument seek to disqualify him under Article 102(l)(d). That is why Mr. Lekhi sought to restrict that this acknowledgement should be by an incumbent Prime Minister, Home Minister or Finance Minister. We cannot of course appreciate the logic of restricting it only to these personages. Mr. Lekhi suggested that he is restricting it because these poisons would know about the true tacts but that may equally apply to the former Home Minister, and Prime Minister. But Mr. Lekhi would not extend this benefit to them. This argument itself is illogical and leads to an anomalous situation. It amounts to say that the allegation should be accepted as proved without adjudication. However higher responsible may be the source of allegation it is still an allegation. This country is governed by the rule of law which necessarily requires that no allegation made by howsoever high an authority can be accepted and acted upon in a court of law unless the same has been proved in accordance with law and procedure laid down therein. That a mere allegation of kinds mentioned in Article 102 of the Constitution does not entail this disqualification is clear from Article 103 which requires that if any question arises as to whether a member of either house of Parliament has become subject to any of the dis- qualifications mentioned in clause (1) of Article 102 the question shall be referred for the decision of the President and his decision shall befinal, and that before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion. It is also not disputed by Mr. Lekhi that if the House of People has not been dissolved and an allegation has been made against respondent No. 3 within the meaning of clause (d) of sub-clause (1) of Article 102 he could not have been disqualified for remaining a member of the Parliament unless an enquiry was first held and decision given in terms of Article 103 of the Constitution. All that he could say was that the provisions of Article 103 were not available at the preseat time. But that does not mean that a mere. allegation must be accepted as proved. The requirement of adjudication before disqualifying a person cannot be whittled down. Mr. Lekhi referred to the definition of foreign Agent in Section 4(2)(b) of the Official Secrets Act which includes any person............ in respect of whom it appears that there are reasonable grounds for suspecting him of having been employed by a foreign power. We do not see its relevancy to the present case because that definition is relevant when a person is proceeded against in a court of law .under Section 3 of the Official Secrets Act and that necessarily would require adjudication by a court of law. It is apparent thereforee that unless there is a finding by a court of law or any other constituted authority that a person has incurred the disqualification under Article 102(1)(d) the argument cannot be accepted that respondent No. 2 must be held to be disqualified on the sole ground that allegation has been made by a very high personage like the then Home Minister and the Prime Minister of the country. It is not Mr. Lekhi's case that. respondent No. 2 has any authority under the law to hold that a person has incurred the disqualificaion under Article 102(1)(d). Thus we have nothing more to go than mere allegations which cannot be accepted in a court of law.

(4) The question posed by Mr. Lekhi that whether in view of these serious allegations having been made by respondent No. 2 he should have advised the President to include respondent No. 3 in his Council of Ministers or whether respondent No. 3 against whom tile allegation had been made by respondent No. 2 should have agreed to be a member of Council of Minister headed by respondent No. 2 are questions on which public may legitimately expect some answers, it is possible as Mr. Lekhi says that, public opinion may be greatly agitated and may want to know as to where the truth lies. We do not deny that these questions may be of grave political interest to people at large. But then the questions which may be of interest on a political plane are not necessarily within the ambit of the court's jurisdiction. The argument of Mr. Lekhi suffers from the inability to accept as was pointed out by Justice Frantfurter in Charles We. Baker v. Joe Carr 369 Us 663 , that there is not under our Constitution a judicial remedy for every political mischief and in this situation, as in others of like natures, appeal for erlief does not belong here. Appeal must be to an informed civically militant electorate. In a democratic society like ours, relief must come through an aroused popular conscience that scars the conscience of the people's representatives

(5) Framers of the Constitution also recognised this limitation. Thus when Dr. Ambedkar was asked to introduce a disqualification against a convicted person being appointed a Minister of State he disagreed on the ground that it is not necessary to put all Ms in the Constitution and that this is a case which may eminently be left to the good sense of the Prime Minister and to the good sense of the Legislature with the general public holding a watching brief upon them.

(6) Had the petition remained in the unamended form as it was originally filed the same would have to be dismissed because we have found no substance in this contention made by Mr. Lekhi.

(7) This petition, however, was amended and a further point was raised which is mentioned in para 28-A of the petition. The point raised is that the respondent No. 2 tendered the resignation of himself and his Council of Ministers on 20-8-1979 and the same was accepted by the President on 22-8-1979, but respondent No. 3 continues to function as a Minister without taking the fresh oath of office. The petitioner has filed a further affidavit on 31-8-1979 reproducing the letters said to have been written by respondent No. 2 tendering his resignation to the President and the President's letter of the same date accepting the resignation and requesting the respondent No. 2 and his colleagues to continue in office till other arrangements are made. Mr. Lekhi's contention is that Article 75(4) provides that before a Minister enters upon his office the President shall administer to him the oath of office and secrecy. Mr. Lekhi concedes that respondent No. 3 had taken the said oath when he was sworn in as a Minister on 25-7-1979 but says that when the resignation of the Council of Ministers was accepted by the President on 20-8-1979 the oath could no longer serve the purpose for the further functioning of respondent No. 2 as Minister. The contention is that though it may be open to the President to, appoint respondent No. 2 as a Minister after accepting the resignation, the respondent No. 2 cannot enter upon his office without taking a fresh oath of office.

(8) Though we have found that there is no substance in the first contention, show cause however will be issued only on the allegations made in para 28-A on this point. The notice need issue only to respondents 1 and 3 because the 'impleading of respondent No. 2 was necessitated only because of the first point which we have rejected and it is not necessary to issue notice to respondent No. 2. Issue show cause on this limited point for 19th September, 1979.


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