RAMDAS SHRINIWAS NAYAK Vs. ABDUL REHMAN ANTULAY

JUDGEMENT

(1.) AT the instance of the complainant, Shri Pradhan, Chief Secretary to the Government of Maharashtra, was summoned to produce documents regarding the Government decision said to have been taken on October 6, 1980, to set up Indira Gandhi Pratibha Pratishthan. The learned Advocate General has appeared for the State Government and has claimed immunity for the Government from producing these documents. Shri Shivajirao Bapusaheb Deshmukh, Minister for State for General Administration and other departments, had filed his affidavit Exh. 93 on April 23, 1984. The complainant filed his affidavit in reply Exh. 103 on April 27, 1984. Arguments were heard on April 30 and May 2. After the arguments were over, the learned Advocate General filed a further affidavit of Shri Deshmukh.

(2.) IN his affidavits, Shri Deshmukh has affirmed that the following three documents are in custody of the Government: - (i) The note dated October 4, 1980 circulated by the GAD to the Cabinet for the purpose of discussion of the subject; (ii) The minutes of the decision recorded after discussion of the subject by the Cabinet on October 6, 1980; and (iii) Proceedings of the meeting of the Cabinet dated October 13, 1980 in which minutes of the meeting dated 6th were confirmed.

(3.) ON the subject of disclosure of documents, both in relation to the Constitutional provisions contained in Article 74(2) [or Article 163(3)] and Section 123 I.E. Act, the Supreme Court decision in the Judges' case (S. P. Gupta v. President of India : [1982]2SCR365 ) is the last word. The majority decision of 6 to 1 in this case lays down the following as the correct legal position obtaining under Article 74(2) which corresponds to Article 163(3): - (i) The advice tendered by the Council of Ministers to the President or the Governor, as the case may be, is protected against judicial scrutiny. (ii) The reasons which have weighed with the Council of Ministers in giving the advice will form part of the advice and, therefore, protected against judicial scrutiny. (iii) The materials on which the reasoning of Council of Ministers is based and the advice is given, cannot be said to form part of the advice. Accordingly these materials will not attract the bar under Article 74(2) or 163(3). (iv) Proposition (iii) supra holds good, even though the materials are referred to in the advice tendered by the Council of Ministers to the President/ Governor.