G.M. Lodha, J.
1. Having heard Mr. M.C. Bhoot at length & 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 juri diction of judiciary and the legislative wing of the State Slightest lack of mature consideration tin either side has also got the potentiality of sparkling 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 the Full Bench to decide only the important points which I am hereafter mentioning in this order of reference; or o direct that the entire writ application would be cornered and decided by that Bench
3. The facts of this case are very short and simple. The petitioner Shri Ram Rakh Vyas, a citizen of India, pray; 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 the Simla Pact, enterd 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 Subramanium 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.
4. 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 the Hindustan Times dated April 20, 1972. The news published under the caption 'Ex PM reached 'secret' pact with Bhutto is as follows,-
New Delhi, April 11-External 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 relevant documents and also placing together information collected from 'knowledgeable individuals'.
Mr. Vajpayee's statement sent a wave of anger across the Congress and Congress (I) benches and member demanded that the relevant documents he placed on the table of the Houses as, otherwise, the allegation would be regarded as unsubstantiated.
The reference to the Simla Agreement came toward the end of Mr. Vajpayee's hour-long 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 repotted great progress in the improvement of relations with the neighboring countries, as well as the super powers, told the members that he had always been puzzled how 'all of a sudden' Mrs Gandhi and Mr. Bhutto had reached an agree merit 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 had occasion to go through various documents relating to the discussions.
Mr. Vyas has also filed front page of the 'Rajasthan Patrika' Jaipur dated 8 May, 1978, in which the disclosure by Shri Swami M.P. to press correspondents, is contained at follows under the caption,
Lokeh dk jgL;ksn~?kkVu
usg: us lh-vkbZ-,- ls fyf[kr le>kSrk rks fd;k Fkk At;iqj ] 7 ebZ A izeq[k miHkksDrk vkSj laln lanL; lqcz.;e Lokeh us vkt ;gka tokgj yky usg: vkSj bafnjk xka/kh ij vkjksi yxk;k A fd nksuks ls lh-vkbZ-,- ls le>kSrk djds Hkkjr frCcr lhek ij [kEik vkfnoklh;ks dks phu ds f[kykQ 'kL= fn;s A
lEcknnkrvks ls ckrphr djrs gq, vkt ;gka Lokeh us dgk fd Hkkjr&phu; laca/k fcxM+us es phu dk gkFk rks Fkk gh usg: Hkh de nsk'kh ugh Fks A
Lokeh us jgL;ksn~?kkVu fd;k fd 1959 es lh-vkbZ-,- ls fyf[kr le>kSrk fd;k ftlds rgr phu dh tklwlh vkSj phu ds f[kykQ yksxks dks rS;kj fd;k x;k gS A
[kEik ds yksxks dks vejhdk ds dksyjsMks ds LFkku Vsfux nh xbZ ftues Hkkjrh; vf/kdkjh;ks us Hkh Hkkx fy;k gS A dksyjsM+ks es blfy, Vsfux nh xbZ fd D;ksfd dksyjsM+ks vkSj frCcr HkkSxksfyd n`f'V ls leku gS A
;g le>kSrk vejhdk us gh 1969 es rksM+k tc fd fuDlu dks phu dh ;k=k ij tkus dh rS;kjh djuh FkhA
5. No affidavit of the 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 nor been joined as a party in the writ petition.
6. This Court has held in the Simla Pact case S.R. Bhansoli v. Union of India 1972 WLN Part I 503 that the court cannot take notice of such utterances of individual Minister or 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 then was, repelling the arguments 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 the Indian Government shall rot 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 para of that territory into India. I regret that court cannot take notice of such utter races of individual Minister or political leaders which making public speeches.
It was also held in the case of Samant Balkishan v. George Fernande. : 3SCR603 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 th r, 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.
8. 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.
8. The oath of secrecy prescribed for a Central Minister is contained in the Third Schedule of the Constitution and is as follows,-
I A B swear in the name of God/solemnly affirm that I will not directly or indirectly communicate or reveal to any person or persons any mattet 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 much 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 secrecy of whit passed on in a cabinet meeting so that dissensions way not be brought to light.
9. Jennings is of the view that an essential condition of a cabinet solidartity is the maintenance of strict secrecy of what passed at a cabinet meeting. According to him, this is essential because the dissensions may not be brought to light tennings : Cabinet Government 1951 p. 258, The need for secrecy ii based on the principle which follows from the confidential nature of the advice given by the Minister to the head of the executive under Article 74 Clause (v) of the Constitution It is also needed so that free and frank dictions 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 his is 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.
Every Privy Councillor 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 is may be required in the due discharge of duties of the Minister. The exact phrase used in oath is as follows,-
except as may he required for the due discharge of my duties as a Minister.
10. The Official Secrets Act No. 19 of 1923 also provides legal sanction to prevent disclosure of official secret information
11. Different Constitutions of the other countries have got different forms of oath for Ministers In Italy, requirement of oath or a Minister is provided in Article 93. In Netherlands, Article 79 requires that the Minister should cake oath before the King in the following form-
I swear (promise) fidelity to the King and to the Constitution; swear promise) that I will faithfully perform all the duties which the office of a Minister lays upon me.
So help me. God Almighty : (That I promise)
I swear (declare) that in order to be appointed Minister, I have net promised or given, directly or indirectly, any fights or presents to any person under whatsover name or pretext.
I swear (promise) that in order to do or refrain from doing anything what so ever in this office, I will not accept, directly or indirectly, any promises or presents from anyone whom so ever.
So help me God Almighty. (That I declare and promise) Peesle, Constitutions of Nations II Vol. p. 522
12. In the United States of America, the oath is in the following form.-
I do solemnly swear or affirm that I will faithfully execute the office of the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.
The above survey of the provisions and the requirements regarding maintenance of secrecy and the oath of secrecy only tends to show that in every form of Government, the Constitution provides for maintenance of secrecy so far as the or trial secrets are concerned which come to the knowledge of a Minister concerned either during the discussion in the cabinet or otherwise.
13. However, the above is a broad proposition which is not in dispute, and the questions which required serious consideration in this case are whether the Minister, while disclosing a secret clause or a secret pact at Simla between Mrs. Indira Gandhi and Mr. Bhutto, was required to do so for the due discharge of his duties as such Minister or it was not done in the due discharge of his duties.
14. I enquired from Mr. Bhoot, counsel for the petitioner whether the subject of this disclosure relates to the Ministry of Shri Vajpayee and he candidly conceded that of course, it did relate to the External Affairs Ministry. However, his contention was that as it was a budget debate, it was not necessary for the Minister concerned to talk about any secret clause of the Simla Pact. To what subjects a Minister can refer in a budget debate, is again a matter which is to be guided by the rules of the business of the Assembly or the Look Sabha or the Riajya 3abha and the Speaker is the sole judge of its relevancy. It is, of course, a matter of common knowledge that budget debates are very comprehensive and it would be a misnomer to think, that either the member or the Minister concerned, should only or can only talk of the financial implications of allotments of funds for particular purposes. Even if it be so, the expenditure to be incurred on the External Affairs Ministry will have great relevancy to the relations which this country has got with the other foreign countries including Pakistan which is at our border and with which we had conflicts and pacts from time to time. Can it be said that in that background and particularly the history of the Indo Pak relations originating from the creation of Pakistan, the discussion, debate and disclosure about the Simla Pact, were irrelevant and were not done in the discharge of duties? Then again would the court sitting here decide the relevancy or irrelevancy of it Prim facie, I am of the opinion that the question whether particular statement of fact even if leading to disclosure of any alleged secret clause in the House to members of the Parlimameet was relevant and permissible in the discharge of duties of a Minister is a matter which solely falis in the purview, domain and jurisdiction of the Speaker of the Lok Sabha The judiciary would be encroaching upon the Legislative field and the jurisdiction of the Speaker' by adjudicating this controversy where the speech delivered by Shri Vajpayee, as alleged by the petitioner, in the debate on External Affairs Ministry budget was permissible within the exception provided in the oath of secrecy taken by Shri Vajpayee as Minister for External Affairs.
15. However, as I have already decided to refer the matter to a larger Bench, it would be open to the larger Bench to decide this matter also afresh if it comes to the conclusion that a court of law candles inspire of Art 105 of the Constitution and the other provisions relating to the authority of the Speaker embodied in the Constitution and the Rules of Business of the Lok Sabha where in the Speaker is the sole judge of the internal matters of the House.
16. The next question, which would of course be the first question to be decided by the larger Bench whether the High Court has got jurisdiction to issue show cause notice, call upon a member of the Parliament and the a to decide whether he has violated the oath of secrecy by giving a speech in the Parliament. Article 105 of the Constitution reads as under,-
105. (1) Subject to the provisions of the Constitution and to the rules and star ding orders regulating the procedure of Parliament, there shall be freedom o' speech in Parliament.
(2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any Committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.
(3) In other respects, the power, privileges and immunities of each House of Parliament, and of the members and the committees of each House shall be those of that House, and of its members and Committees at the commencement of Section 21 of the Constitution (Forty second Amendment) Act, 1976, & as may be evolved by such House of Parliament from time to time.
(4) The provisions of Clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any Committee there of as they apply in relation to members of Parliament.
It may be relevant to mention here that the controversy between the judiciary and the Legislative wings of our State sparked in 60 when Judges of the Allahabad High Court were ordered to be produced before the Legislative Assembly of U.P. on the allegation that they interfered with the domain of the Legislature by releasing Keshav Singh on bail who had already been sent to jail for committing contempt to the House Justice M.V. Beg and G.D. Sehgal of the Allahabad High Court then filed writ application in the Allahabad High Court consisting of 28 Judges restrained the Speaker from issuing the warrant in pursuance of the directions of the House given to him on 21st March, 1964. The 28 Judges again sat in Full Bench to consider the the application of Mr. Solemn, the learned advocate of Keshav Singh and after admitting the petition, issued an interim order on 25th March prohibiting the Assembly from implementing the warrant. The assembly then adopted another resolution and called upon the Judges of the High Court to submit their explanations and when the Judges were placed under an obligation to appear before the House & offer their explanation, as to why the House should not proceed against them for the alleged contempt of the House the President of India execrated his powers, by making a references under Article 143(1) of the Constitution on 26-3-74, mentioning that a situation has arisen giving rise to a serious conflict between a High Court and a State Legislature which involved important and complicated question of law regarding the powers and jurisdiction of the High Court and its Judges in relation to the State Legislature and regarding the power, privileges and immunities of the State Legislature and its members in relation to the High Court and its Judges in discharge of their duties. This special Reference No. 1 of 1964 was decided by majority consisting of Gajendragadkar C.J. Subarao, Wanchoo, Hidayatullha Shah and Rajagopala Ayyangar C.J. Subarao, Wanchoo, Hidayarullaha Shah and Rajagopala Ayyangar JJ; and Justice A.K. Sarkar giving a distending note : AIR1965SC745 .
17. In the above judgment as the question of powers, privileges, immunites of the members of the Legislative Assembly was to be considered, the Supreme Court has considered Article 194 of the Constitution. However, a close examination of Article 194 and its comparison with Article 105 of the institution would show that there is, no, difference between the two, except that Article 105 relates to 'the Parliament and Article 194 relates the State Legislatures. The Supreme Court in this Special Reference upheld the power 61 the High Court in respect of the judicator under Article 226 to release a person on bail even though he has been committed for contempt by the Legislative Assembly provided he is outsider & not a member of the Assembly The majority judgment given by Hon'ble Gajendragadkar C.J. as he then was clearly laid down the following,
(1) that it was competent for the Division Bench of the High Sourt to entertain and deal with the petition of. K challenging the legality of the sentence of imprisonment imposed upon him by the Legislative Assembly for its contempt and fir infringement of its privileges and to pass orders releasing K on bail pending the disposal of his said petition;
(2) that K by causing the petition to be presented on his behalf to the High Court, the Advocate by presenting the said petition, the two Judges of the Division Bench by entertaining and' dealing with the said petition and ordering the release of K on bail pending disposal of the said petition, did not commit contempt of the Legislative Assembly;
(3) that it was not competent for the Legislative Assembly to direct the production of the said two Judges and the Advocate before it in custody or to call for their explanation for its contempt;
(4) that it was competent for the Full Bench, of the High Court to entertain and deal with the petitions of the said two Judges and the Advocate and to pass interim orders restraining the Speaker of the Legislative Assembly and not implementing the aforesaid direction of the said Legislative Assembly; and
(5) that in a case arising out of a contempt alleged to have been committed by a citizen who is not a member of the House of Legislature outside the four walls of the legislative chamber, a Judge of High Court who entertains or deals with a petition challenging any order or decision of a Legislature imposing any penalty on the petitioner or issuing any process against the petitioner for its contempt, or for infringement of its privileges and immunities, be who passes any order on such petition, does not commit contempt of the said Legislature and the said Legislature is not competent to take proceedings against such as a Judge in the exercise and enforcement of its powers, privileges and immunities.
The Supreme Court also placed great emphasis cm the Legislature's freedom of speech as an absolute freedom and unfettered one. In this respect, the following proposition of law was laid down,
Clause (1) of Article 194 makes it clear that the freedom of speech in the Legislature of every State which it prescribes, is subject to the provisions of the Constitution, and to the rules and standing orders regulating the procedure of the Legislature. While interpreting this clause, it is necessary to emphasise that the provisions of the Constitution subject to which freedom of speech has been confer red on the legislators, are not the general provisions of the Constitution but only such of them as relate to the regulation of the procedure pf the Legislature. The rules and standing orders may regulate the procedure of the Legislature and some of the provisions of the Constitution may also purport to regulate it, these are, for instance Articles 208 and 211. The adjectival clause 'regulating the procedure of the legislature' governs both the preceding clauses relating to 'the provisions of the Constitution and 'the rules and standing orders' Therefore, Clause 11 confers on the legislators Specifically the right of freedom of speech subject to the limitation (prescribed by its first part. By making this clause subject only to the specified provisions of the Constitution, the Constitution makers granted to make it clear that they thought it necessary to confer on the legislators freedom of speech separately and, in a sense, independently of Article 19(1)(a). If all that the legislators were entitled to claim was the freedom of speech and expression enshrined in Article 19(1)(a), it would have been unnecessary to confer the same right specifically in the manner adopted by Article 194(1) and so, it would be legitimate to conclude that Article 194(1)(a) is hot one of the provisions of the Constitution which controls the first part of Clause (1) of Article 194.
An other important feature of this judgment was that the majority laid down that Sub-clause (2) of Article 194 which is para materia to Sub-clause (2) of Article 195 is couched in such wide terms that in exercising the rights guaranteed by part III, they would not be liable for any action in any court.
18. It is to be noted that the Special Reference was to settle once and for all the controversy whether the Judge of the High Court can be called in the dock of the Assembly for being' either reprimanded or punished' for contempt and whether the Speaker enjoys unrestricted, unfettered the right to punish the outsider without any interference by the High Court under Article 226 of the Constitution.
19. The question which arises in the present case is not covered by the judgment of Special Reference also, though important observations made in it are certainly relevant and would guide this Court for the determination of an absolutely new and novel controversy relating to the immunity, power and privilege of the Parliamentarian in respect of his speech in the Parliament being scrutinised by the Court, for the purpose of adjudicating, whether he has violated oath of secrecy or not taken under Article 75 of the Constitution.
20. The Supreme Court in the above case has certainly said that the privilege given under Art 194 to a Legislator is unfettered and absolute but it has also added a rider that even though the phase 'suoj coot other provisions of the Constitution' would no find piace in Sub-clause (2) of Article 194 Sub-clause (3) of Article 194 analogous Sub-clause (3) of Article 105 certainly contemplated the consideration of the other provisions of the Constitution.
21. Now corning to the brass text of the controversy raised in the present case, the principal question is Whether the High Court has got power. under Article 226 of the constitution co (a) issue nonce to a member of the Parliament to and/or a Minister to that cause and to explain to the Court whether his speech in the Parliament is not in violation of the oath of secrecy taken by him aria Minister to keep secrecy, subject to exception, regarding ail official matter which comes to his notice or knowledge as a Minister, (b) whether the High Court can adjudicate upon the question whether a particular speech was required to be made by a Minister in the Parliament for the discharge of his duties as such Minister, The above two questions would certainly depend upon the decision of this Court about the powers and privileges of the members of Parliament who become Ministers regarding their speeches in the Pail lament as contemplated by Article 75 of Constitution and the others relevant provisions in the Constitution and the rules of business of the Lok Sabna.
22. Closely related to the above question would be, whether it would mot be an encroachment upon the powers of the Speaker to decide what was relevant or permissible in a particular debate a, He alone can decide it in the Parliament and he is not answerable to the Court.
23. Prima facie, I am of the opinion that it would be an attempt to interfere with the jurisdiction of the Speaker to decide & adjudicate judicially In the court whether a particular speech by a member of the House was relevant or irrelevant, and whether it was permissible or not per miscible under the Constitution and the Rules of Business. The Speaker is the sole judge in these matters both by virtue of the Constitution and the rules of business framed under it and his decision cannot be called in question in any Court. It would be presumed that whatever Mr. Vajpayee spoke in the Parliament on the budget of his Ministry, assuming the news item to be correct about the secret clause of the Simla Pact also, the Speaker a juiced it is rivet & permissible both under the Constitution of India and the rules of bursitis. It is not the petitioner's grievant that it was against the Speaker's ruling and such a grievance could not have been made because if that would have been so, the Speaker would have expunged it, then and there, and it would not have found place in the news-paper Ex 1 submitted by he petitioner, lam also of the opinion, prima facet, that silting in the High Court we can not decide and determine whet the speech of Mr. Vajyapee in relation to disclosure of the secret clause in the Simla pict was in due dischage of his duties as such Minister, because as the nevus item, itself holds that he were lie to the Lok Sab is debate, on Minister's budget and the reference to the Simla agreement came towards the find of Mr. Vajpayee s hour long reply watch according to the press correspondent, was maked by eloquence and wit and greeted with repeated cheeps from the Treasury benches. He was speaking on the subject of policy of non-alignment and reported gnat progress in the improvement of relations with the neighboring countries, when he referred to the post-dinner meeting of Mr. Bhutto, in which the secret understanding between the two took place; at a time when the hope an agreement had been given up.
24. More over, prima facie, I am also of the opinion that whether this particular disclosure was done in the discharge of his duties as a Minister cannot be adjudicated upon by us in the High Court, as it is purely a political issue and is not subject to judicial review. If, a right of private defence and the amount of the force to be used be an accused placed in the situation where he is attacked by an invader when he hits back to protect his person can not be weighed in golden scales then how can the extent, the degrees or limits of the right of a member of Parliament of a Minister who has got a right of speech in the Parliament the constitution, can be weighed in golden scales, by a court, what would always remain unaware, regarding the tempers which were being displayed in the Parliament, the scathing piercing and mounting attacks. which a Minister my be required to face, from the opposition benches and sometimes even from the members of his own any, while defending his policies is a Minister and his acts as a Minister in the House. The Legislative functioning is for different from the functioning of a court However, the again would be for the larger Bench to consider whether the court can embark upon an enquiry into the subtle and difficult question, whether a particular speech was given by a Minister in the House, as it was required in the due discharge of his duties as such Minister.
25. Then again another subtle and important question of great Constitutional importance is, even assuming that a Minister contravenes any provisions of the Constitution regarding maintenance of secrecy, is it for the President on the advice of the Prima Minister to remove him from the office or the Court can issue a writ under Article 226 of the Constitution prohibiting him from functioning as a Minister.
26. Here again it would be pertinent to note that Ministers are appointed only on the advice of the Prime Minister by the President. Article 75 Clause (1) express, Hates that the Prime Minister shall be appointed by the President and other Ministers shall be appointed by the President on the advice of the Prime Minister. Under Clause (2) of Article 75 the Minister holds office during the pleasure of the President and k admits of no doubt that so for as the pleasure of the President is concerned or the advice of the Prime Minister is concerned, they are executive acts beyond the pleaders of judicial review. A removal of the Minister is not separately provided for, but it is implied in the powers of appointment of t lie President under Article 75. That being so to am of the opinion that no writ application under. for the removal of the Minister under Article 75 of the Constitution Of course, the situation would be different if a member of the Parliament who becomes a Minister, suffers from disqualifications mentioned in the Constitution and other provisions of the law There is provision in the Constitution that a Minister, would cease to be a Minster if he either violates the oath taken or even if he fails to take oath Even in the case of failure to take oath, the only penalty provided is Rs. 500/- each day which are to be recorded as a debit us, to the Union under Article 104 of the Constitution. There is no provision in the Constitution either providing for removal of a member of Parliament or a Minister or for declaring a seat vacant on account of either not taking oath or violating the oath. If the Constitutional Pandits who were the representatives of this country, while taking the Commutation to themselves and through them to the millions people of this country, did not make any provision far removal of a Minister, it is a serious question to be considered, how the judiciary ran step in and legislate by issuing a writ for removal & thus providing a new article for this contingency in the Constitution.
27. So far as the speech of Mr. Swami is concerned, neither it has 'been given by Shri Vajpayee nor Shri Swami is a party to this case. part therefore ignoring ii for the time being though as I am making reference, it would had for the larger Bench to take note of it, if it takes a contrary view to that of mine.
28. The petition has been filed on the ground of alleged speech of Shri A.B. Vajpayee in the Parliament at Delhi. It is in intelligible where cause of action arose in Rajasthan. It was held in the Simla pact case. S.R. Bhansali v. Union of India 1972 WLN Part I 503 by Iyagi J., as he then was, that the court cannot entertain writ against the Simla Pact. The Court held as follows,-
The writ of this Court travels within the territorial limits of Rajasthan only when the cause of action either wholly or in part has arisen in Rajasthan The impugned agreement was concluded in Simla an ii relates to the territories which are not part of Rajasthan; therefore, in this matter this Court cannot exercise its jurisdiction under Article 226 of the Constitution over the Central Government or the President.
I am also prima facie, of the same view. However, as I am referring this case to larger Bench, the question of jurisdiction would also form part of the reference, and my tentative opinion should not be treated as decision on it.
29. There is one mare aspect, which would requite serious consideration. As the Ministry headed by Mrs Indira Gandhi has gone out of office and new Ministry of different part) in which Shri Vajpayee is Foreign Minister, has taken over, can it be said that oath of secrecy of the successor Government and Minister would extend to the acts and information's about the matters the of previous Gemming. Is the successor Government bound not to disclose any official secret act of the previous Government, on account of Article 75(4) of the Constitution? This again is an important question of the Constitutional Law.
3o. In view of the above decision, the following important questions of the Constitutional Law arise for consideration in this case:
1. Whether the High Court can summon a member of the Parliament and/or a Minister to the Court to show cause against the allegation that his speech was in contravention of oath of secrecy taken by him under Article 70(4) of the Constitution & therefore to Lenore him from office of Minister on his failure to satisfy the Court, by writ of quo warrantee or prohibition und226 of the Constitution of India.
2. Whether a member of the Parliament aid/or a Minister enjoys immunity by virtue of privileges conferred o. him under Article 105 of the Constitution it respect of freedom of speech in the Parliament and the Court summon him to been answerable for violation of oath of secrecy taken under the Constitution?
3. Whether Article 105 Clause (2) of the Constitution is subject to Article 75(4) of the Constitution?
4. Whether a question, that a speech given by the member of Parliament and/or Minister was required to be then in the due discharge of his duties as sued member's to Minister, is justice able by court or it is a poetical one outside the judical review?
5. Whether the question whether oath of secrecy was violated by a Minister during his speech ii the Parliament, is a question exclusively in the purview of the Speaker of the House, or it is within the scope of judicial review?
6. Whether the removal of a Minister as contemplated by Article 75 of the Constitution, though not expressly provided for, is exclusively in the domain and jurisdiction of the President on the advice of the Prime Minister and is out side the judicial review?
7. Whether the Prime Minister, and the President en the advice of the Prime Minister are the sole judges about the allegation of violation of oath of secrecy and it is outside judicial review being not justifiable?
8. Whether the Constitution of India provides any penalty or consequence for violation of path, of secrecy by a Minister; If so, whether removal is the penalty provided?
9. Whether a successor Government or a successor Minister is Constitutionally bound to treat the information about the various acts, omissions and commission's of the previous Government or predecessor as secret?
10. Whether the Rajasthan High Court has got jurisdiction to entertain this writ petition against the Union Minister for his speech given in the Parliament at Delhi?
11. Whether a petition can be entertained on facts based en news items of newspapers?
31. It is only after the decision of the above questions in favour of the petitioner that the court can consider about the merits namely whether oath was in fact violated or not. That being so, before consideration of issuing a notice to the respondents and more particularly respondent No. 1 who is a Minister & member of' Parliament; more so because prima facie. I have taken the view that he enjoys privilege under Art 105 and has not violated the oath even otherwise, first the larger Bench will have to consider the above questions timing. Of course, it would not mean that sitting alone, I am in any manner fettering or making even an tarp to fetter, the powers of the larger Bench, which it would enjoy irrespective of & inspector of my views in the matter, which are nothing but after all an expression of an opinion, only said that too prima facie, sitting alone It is therefore ordered that the writ application be put up before the Hon'ble Chief Justice under Rule 59 read with Rule 55 proviso (b) to Sub-rule (3) of the High Court Rules As I have stated at the very threshold of my order, the question and the controversies raised in this case are of great complicated nature and raises serious questions in the sphere of the Constitutional law, it would be for Hon'ble the thief Justice to direct whether the larger Bench would consist of all the Judges of this Hon'ble Court or such smaller number as my Lord the Chief Justice may direct. It would again be for the Hon'ble Chief Justice to direct whether Bench would decide only the questions formulated by me or it would decide the enter writ application as many other important questions may come to surface when the above formulated questions are argued and considered.