Information in relation to mercy petitions & related issues; copies of correspondence by the President to PM relating to Gujarat riots - CIC: Article 74 of Constitution is not restricted to the advice of the Council of Ministers collectively
Information in relation to mercy petitions and related issues; copies of correspondence by the President & Prime Minister relating to Gujarat riots - CIC: no merit in the contention that merely the advice of the Council of Ministers collectively is covered as per the Article 74 of the Constitution; the procedure of section 11 of the RTI Act shall be complied with regard to the copies of mercy petition filed by the convict or others on his behalf
1. The appellant is present for the hearing along with Mr Venkatesh Nayak and Mr Sidhartha. The respondent was represented by Shri JP Agrawala (JS, Judl) and Rakesh Jhingam (US, Judl-II).
2. The appellant filed an RTI application dated 31.12.2012 addressed to President's Secretariat seeking information on (14) points. The appellant sought to know
(1) has President's Secretariat taken cognizance of news report "Delhi gang rape culprits have no right to live: Pratibha Patil" ,
(2) Is it true that Smt Pratibha Patil in her tenure as President of India pardoned convicts of death sentence including also guilty after murder,
(3) complete rules and norms about a President of India endorsing recommendations of Union Ministry of Home Affairs (MHA) on mercy petitions.
The appellant sought various other information on various other points as well. The CPIO, Ministry of Home Affairs (Judicial Division), provided a point wise reply to the appellant vide reply dated 5.2.2013.
3. The appellant filed first apppeal in relation to point (6) & (8) of his RTI application. The appellant submits that the file notings in relation to the said points be provided to him free of cost. Furthermore, the appellant has appealed in relation to point (7) & (9) as the CPIO denied the sought information as privileged under Article 74 (2) of the Constitution. The appellant also submitted that point (10) of his RTI application be transferred back to the concerned department.
4. The first appellate authority held as under:
"2. Regarding transfer of application to concerned in respect of point 10, I have gone through your submission. You have expressed your view on the specific subject and in such cases action is being taken only on the matter when such subject is under consideration with the Government. In respect of your submission i.e Prove pardon of rapist-murders by Pratibha Patil, no prima facie action is required to be taken as the Constitutional power has been excercised "accordance with established procedure".
3. Regarding other queries raised by you, I am satisfied with the view of the CPIO that these points are privelged under Article 74 (2) of the Constitution and the same cannot be disclosed under RTI Act. In this regard you may see the order dated 11.7.2012 of Hon'ble Delhi High Court in WP( C) No. 13090 of 2006."
5. The appellant has filed second appeal on similar grounds. The points in relation to which the appellant has filed the appeal are being reproduced below: "
(6) Is it true that several mercy-petitions decided by Smt Pratibha Patil during her tenure as President of India were recalled from President's secretariat for review by MHA and/or sent by President's Secretariat for review by MHA.
(7) Complete information together with related filenotings/ correspondence/documents etc on MHA recalling mercy-petitions for review from President's Secretariat and/or sent by President's Secretariat for review by MHA making clear about public authority (President's Secretariat or MHA or some other) on whose behest mercy-petitions reached from President's Secretariat to MHA for review after their earlier being recommended to be rejected by MHA.
(8) Complete information on rules, norms etc on mercy petitions reaching for review from President's Secretariat to MHA mentioning name of public authority entitled for sending/recalling mercy petitions for review from President Secretariat to MHA.
(9) Complete information on mercy-petitions where MHA changed its recommendations on reveiw after mercy-petitions reaching back to MHA from President mentioning all earlier recommendations and final recommendations after review together with names of respective Union Home Ministers differently deciding on each of the reviewed mercy-petitions.
(10) Complete information together with related correspondence/file-notings/documents on action taken on each and every aspect of my submission 'Probe pardon of rapist-murders by Pratibha Patil' dasted 30.12.2012 by President Secretariat and/or by Public authority where these submissions have been forwarded by President Secrertariat."
The appellant filed an RTI application dated 8.4.2013 addressed to the CPIO, President’s Secretariat seeking information on (11) points. The appellant has sought copy of mercy petitions of all the death sentence convicts whose mercy petitions were decided (rejected or commuted to life sentence) after 9.2.2013 by the Hon’ble President along with all other documents including file notings/documents/correspondence etc on action taken on these mercy petitions as available with the President’s Secretariat, copies of mercy-petitions of all the death sentence convicts whose mercy petitions were decided etc. The said RTI application was transferred to Ministry of Home Affairs under section 6 (3) vide letter dated 10.4.2013. The CPIO, MHA provided a point wise reply to the appellant vide reply dated 17.5.2013. With regard to point point 1,2 & 7 the CPIO replied as under: “Reply to point 1,2 & 7: The copies of the requisite mercy petitions along with file-noting etc cannot be provided being personal matter and prevented to disclose under section 8 (1) (j) of the RTI Act. These documents are also leading part of the formation of the Ministerial advice to the President, therefore, the same are also privileged under Article 74 (2) of the Constitution, hence, the requisite information cannot be provided under the RTI Act. In this regard you may see the order dated 11.7.2012 of Hon’ble Delhi High Court in WP (C ) No. 13090 of 2006.” The appellant field first appeal dated 22.5.2013 which was disposed of vide order dated 21.6.2013 wherein the first appellate authority upheld the decision of the CPIO. The appellant has filed second appeal wherein the appellant submits that vide response dated 17.5.2013 information has been declined on point no. (1), (2) and (7) as exempted under section 8 (1) (j) of RTI Act apart from covered by provisions of Article 74 (2) of the Constitution. The appellant relies on decision of the CIC dated 26.6.2012 in file no. CIC/SS/2012/A/000051. The appellant submits that in relation to query no. (6) incomplete information has been provide.
The appellant filed an RTI application dated 11.2.2013 addressed to the Ministry of Home Affairs, Judicial Division seeking information on (11) points wherein the appellant sought copy of mercy petition in respect of Afzal Guru either by him and/or by any other on his behalf together with complete correspondence/filenotings/ documents etc on action taken on the said mercy petition (till after his final hanging on 9.2.2013) by President’s Secretariat/MHA/Union Ministry of Law & Justice and others concerned including also copies of letters and postal-receipts both for dispatch and acknowledgements of intimation to family of Afzal Guru to inform about his hanging having been done, copies of video tapes of hanging of Afzal Guru and Ajmal Kasab their burial and related aspects etc. The CPIO provided a point wise reply to the appellant vide reply dated 14.3.2013. The appellant filed first appeal disposed off vide order dated 30.4.2013 wherein the first appellate authority held that the information available with the CPIO and can be disclosed has been furnished to you. The appellant submits in his second appeal that “a bare reading of article 74(2) does not in any way bars disclosure of sought information to normal information seekers. Rather it is simply restricts only courts to question why and how the advice was tendered”. The appellant further submits that at point no. (3), (4) and (8) the information has been denied u/s 8 (1) (a) (g) and (j) but a bare reading of the queries reveal that not all the information sought can be declined under any of the sub sections of section 8 (1) of RTI Act.
The appellant filed an RTI application dated 31.12.2012 addressed to Ministry of Home Affairs seeking information on (11) points. The appellant sought complete information on each and every aspect of submissions by appellant “reveal identity of deceased brave rape-victim”, “probe pardon of rapist-murderers by Pratibha Patil” etc through PG Portal, is it true that the President of India has to compulsorily endorse MHA recommendations on mercy-petitions etc. The CPIO, Ministry of Home Affairs, Judicial Division provided a point wise reply to the appellant vide reply dated 5.2.2013. The appellant filed first appeal dated 9.2.2013 which was disposed off vide order dated 12.3.2013. The appellant submits that his first query be transferred to the concerned department. The appellant submits in relation to point (5) & (7) that information be provided free of cost and also a specific reply be provided with respect to (4) (5) & (7).
As, all the four appeals are seeking information in relation to mercy petitions and related issues, the said appeals are being disposed off vide common order. During the hearing, the appellant submits that the information sought by the appellant is not covered by Article 74(2) of the Constitution. The appellant reiterates that the said Article 74 only refers to the advice tendered by the Council of Ministers collectively and does not include an individual Minister. The appellant has also relied on “The Government of India (Transaction of Business) Rules” dated 14.1.1961 for establishing this argument. The appellant submits that Atricle 74 (2) is applicable only when the cabinet is speaking for the government. However, the respondent submits that the Article includes advise by an individual Minister as well. The appellant also submits that Article 74 refers or bars only the justiciability and does not prevent from providing information under the RTI Act, 2005. The appellant has also referred to various judgements of the Hon'ble Supreme Court in Bommai Case, SP Gupta case, MN Das case. The appellant further submits that he seeks to know the opinion and reasons for a mercy petition being pardoned or being rejected. The appellant submits that as the entire criminal process is public, the information sought should also be provided. The Commission has in previous decisions dealt with the Article 74(2) in context of mercy petitions. In the file no. CIC/SM/C/2011/001068, Mayilsamy K Vs President's Secretariat and Ministry of Home Affairs order dated 1.9.2011 the Commission has held as under:
“The file notings and correspondence generated in the course of dealing with the mercy petitions can be further sub-divided into that which constitutes the advice tendered by the Minister to the President and that which is not part of the advice. The clarification becomes relevant because in terms of Article 74(2) of the Constitution of India, the advice tendered by the Minister to the President of India shall not be enquired into any court. Since the advice tendered by the Minister even barred to the Courts, it cannot be disclosed to any one else under the Right to Information Act”.
The Commission has also decided appeals in file no. CIC/SS/A/2012/002194 (A.G Periarivalan V MHA) which is in consonance with the previous decision. The appellant has raised two issues before the Commission in the present appeal.
- That the Article 74 protects advise tendred only by the Council of Ministers collectively and therefore the advise tendered in individual capacity by Minister/s should be disclosable under the RTI Act, 2005.
- That Article 74 only prohibits justiciability of the advise tendered to the President before the Courts and therefore the same should be disclosable under the RTI Act 2005.
In the matter of UOI V CIC (W.P. (C) No. 13090 of 2006) the Hon'ble Delhi High Court vide Judgement dated 11.07.2012 has held as under : "33. In the circumstances, the bar under Article 74(2) cannot be diluted and whittled down in any manner because of the class of documents it relates to. The respondent No. 1 is not an authority to decide whether the bar under Article 74(2) will apply or not. If it is construed in such a manner then the provision of Article 74(2) will become sub serving to the provisions of the RTI Act which was not the intention of the Legislature and even if it is to be assumed that this is the intention of the Legislature, such an intension, without the amendment to the Constitution cannot be sustained. ………………………………………………………………………………………… ……………………………………………………………………………………………… …..
45. We respectfully follow the observations in S.P. Gupta v. Union of India at pages 607, 608 and 609. We may refer to the following observations at page 608 of the report: (SCC pp. 280-81, para 70)
"It is settled law and it was so clearly recognised in Raj Narain case that there may be classes of documents which public interest requires should not be disclosed, no matter what the individual documents in those classes may contain or in other words, the law recognizes that there may be classes of documents which in the public interest should be immune from disclosure. There is one such class of documents which for years has been recognised by the law as entitled in the public interest to be protected against disclosure and that class consists of documents which it is really necessary for the proper functioning of the public service to withhold from disclosure. The documents falling within this class are granted immunity from disclosure not because of their contents but because of the class to which they belong. This class includes cabinet minutes, minutes of discussions between heads of departments, high level interdepartmental communications and dispatches from ambassadors abroad (vide Conway v. Rimmer) and Reg v. Lewes Justices, ex parte Home Secretary, papers brought into existence for the purpose of preparing a submission to cabinet (vide: Lanyon Property Ltd. v. Commonwealth 129 Commonwealth Law Reports 650) and indeed any documents which relate to the framing of Government policy at a high level (vide: Re Grosvenor Hotel, London 1964 (3) All E.R. 354 (CA).
46. Cabinet papers are, therefore, protected from disclosure not by reason of their contents but because of the class to which they belong. It appears to us that Cabinet papers also include papers brought into existence for the purpose of preparing submission to the Cabinet. See Geoffrey Wilson - Cases and Materials on Constitutional and Administrative Law, 2nd edn., pages 462 to 464. At page 463 para 187, it was observed: The real damage with which we are concerned would be caused by the publication of the actual documents of the Cabinet for consideration and the minutes recording its discussions and its conclusions. Criminal sanctions should apply to the unauthorized communication of these papers. 43. Even in R.K. Jain (supra) at page 149 the Supreme Court had ruled as under:-
34. Equally every member is entitled to insist that whatever his own contribution was to the making of the decision, whether favorable or unfavorable, every other member will keep it secret. Maintenance of secrecy of an individual's contribution to discussion, or vote in the Cabinet guarantees the most favorable and conducive atmosphere to express views formally. To reveal the view, or vote, of a member of the Cabinet, expressed or given in Cabinet, is not only to disappoint an expectation on which that member was entitled to rely, but also to reduce the security of the continuing guarantee, and above all, to undermine the principle of collective responsibility. Joint responsibility supersedes individual responsibility; in accepting responsibility for joint decision, each member is entitled to an assurance that he will be held responsible not only for his own, but also as member of the whole Cabinet which made it; that he will be held responsible for maintaining secrecy of any different view which the others may have expressed. The obvious and basic fact is that as part of the machinery of the government. Cabinet secrecy is an essential part of the structure of the government. Confidentiality and collective responsibility in that scenario are twins to effectuate the object of frank and open debate to augment efficiency of public service or affectivity of collective decision to elongate public interest. To hamper and impair them without any compelling or at least strong reasons, would be detrimental to the efficacy of public administration. It would tantamount to wanton rejection of the fruits of democratic governance, and abdication of an office of responsibility and dependability. Maintaining of top secrecy of new taxation policies is a must but leaking budget proposals a day before presentation of the budget may be an exceptional occurrence as an instance. ................................................................................................................................... .............................................................................................................................
46. The learned junior counsel for the respondent No. 2, Mr. Mishra who also appeared and argued has made some submissions which are legally and prima facie not acceptable. His contention that the bar under Article 74(2) of the Constitution will only be applicable in the case of the High Courts and Supreme Court while exercising the power of judicial review and not before the CIC as the CIC does not exercise the power of judicial review is illogical and cannot be accepted. The plea that bar under Article 74(2) is not applicable in the present case is also without any basis. The learned counsel has also contended that the correspondence between the President and the Prime Minster cannot be termed as advice is based on his own presumptions and assumptions which have no legal or factual basis. As has been contended by the learned Additional Solicitor General, the bar under Article 74(2) is applicable to all Courts including the CIC. In the case of S.R.Bommai v. Union of India, (1994) 3 SCC 1 at page 241 it was observed as under:- 321. Clause (2) of Article 74, understood in its proper perspective, is thus confined to a limited aspect. It protects and preserves the secrecy of the deliberations between the President and his Council of Ministers.
47. Consequently the bar of Article 74(2) is applicable in the facts and circumstances and the CIC cannot contend that it has such power under the Right to Information Act that it will decide whether such bar can be claimed under Article 74 (2) of the Constitution of India. In case of UPSC v. Shiv Shambhu, 2008 9 AD (Delhi) 289 at para 2 a bench of this Court had held as under:- At the outset this Court directs the deletion of the CIC which has been arrayed as Respondent No. 1 to this appeal, consequent upon it being arrayed as such in the writ petition. This Court has repeatedly issued practice directions stressing that a judicial or quasi-judicial body or Tribunal whose order is challenged in a writ petition ought not to itself be impleaded as a party respondent. The only exception would be if mala fides are alleged against any individual member of such authority or Tribunal in which case again it would be such member, and not the authority/Tribunal who may be impleaded as a respondent.
48. The respondent No. 2 has sought copies of the letters that may have been sent by the President of India to the Prime Minister during the period 28th February, 2002 to 15th March, 2002 relating to Gujarat riots. In the application submitted by respondent No. 2 for obtaining the said information, respondent No. 2 had stated as under:- I personally feel that the contents of the letters, stated to have been sent by the former President of India to the then Prime Minister are of importance for foreclosure of truth to the public on the stand taken by the Government during the Gujarat carnage. I am therefore interested to know the contents of the letters
49. Considering the pleas and the averments made by the respondents it cannot be construed in any manner that the correspondence sought by the respondent No. 2 is not the advice rendered, and is just the material on which the advice is based. What is the basis for such an assumption has not been explained by the counsel for the respondent No. 2. The impugned order by the respondent No. 1 is thus contrary to provision of Article 74(2) and therefore it cannot be enforced and the petitioner cannot be directed to produce the letters exchanged between the President and the Prime Minister or the Council of Ministers as it would be the advice rendered by the President in respect of which there is a complete bar under Article 74(2).
52. The learned counsel for the respondents also tried to contend that even if Article 74(2) protects the disclosure of advice from the Council of Ministers/ Prime Minister to President it does not bar disclosure of communication from President to the Prime Minister. In case of PIO vs. Manohar Parikar, Writ Petition No. 478 of 2008, the Bombay High Court at Goa Bench had held that the protection under Article 361 will not be available for the Governor if any information is sought under RTI Act. However, the reliance on the said precedent cannot be made, as the same judgment has been stayed by the Supreme Court in SLP (C) No. 33124/2011 and is therefore sub judice and consequently the respondents are not entitled for any direction to produce the correspondence which contains the advice rendered by the President to the Prime Minister for the perusal by the CIC. The plea of the respondents that the CIC can call the documents under Section 18 of RTI Act, therefore, cannot be sustained. If the bar under Article 74(2) is absolute so far as it pertains to advices, even under Section 18 such bar cannot be whittled down or diluted nor can the respondents contend that the CIC is entitled to see that correspondence and consequently the respondent No. 2 is entitled for the same. For the foregoing reasons and in the facts and circumstances the order of the CIC dated 8th August, 2006 is liable to be set aside and the CIC cannot direct the petitioner to produce the correspondence between the President and the Prime Minister, and since the CIC is not entitled to peruse the correspondence between the President and the Prime Minister, as it is be barred under Article 74(2) of the Constitution of India, the application of the petitioner seeking such an information will also be not maintainable. Consequently, the writ petition is allowed and the order dated 8th August, 2006 passed by Central Information Commission in Appeal No. CIC/MA/A/2006/00121 being "C. Ramesh v. Minister of Personnel & Grievance & Pension" is set aside. The application of the respondent No. 2 under Section 6 of the Right to Information Act, 2005 dated 7th November, 2005 is also dismissed, holding that the respondent No. 2 is not entitled for the correspondence sought by him which was exchanged between the President and the Prime Minster relating to the Gujarat riots. Considering the facts and circumstances the parties are, however, left to bear their own cost.” In view of the decision of the Hon'ble Delhi High Court the Commission does not find merit in the contention of the appellant that merely the advise of the Council of Ministers collectively is covered as per the Article 74 of the Constitution. In the R.K Jain case, the Hon'ble Supreme Court has held that "Equally every member is entitled to insist that whatever his own contribution was to the making of the decision, whether favorable or unfavorable, every other member will keep it secret. Maintenance of secrecy of an individual's contribution to discussion, or vote in the Cabinet guarantees the most favorable and conducive atmosphere to express views formally. To reveal the view, or vote, of a member of the Cabinet, expressed or given in Cabinet, is not only to disappoint an expectation on which that member was entitled to rely, but also to reduce the security of the continuing guarantee, and above all, to undermine the principle of collective responsibility.” Furthermore, the issue raised by the appellant that Article 74 only bars justiciality has also been dealt with by the Hon'ble Delhi High Court in UOI V CIC (para 46) wherein it has been held
"46. The learned junior counsel for the respondent No. 2, Mr. Mishra who also appeared and argued has made some submissions which are legally and prima facie not acceptable. His contention that the bar under Article 74(2) of the Constitution will only be applicable in the case of the High Courts and Supreme Court while exercising the power of judicial review and not before the CIC as the CIC does not exercise the power of judicial review is illogical and cannot be accepted."
The Commission finds no reason to disagree or differ from the previous decisions of the Commission on the grounds/arguments raised by the appellants. As regards to where copies of mercy petition is sought, the Commission is of the view that section 8 (1) (j) would apply as in the previous decision in case of Mayilsamy & Periarivalan, the RTI application was filed by or on behalf of the convict himself. Therefore with regard to the copies of mercy petition filed by the convict or others on his behalf is sought, the procedure of section 11 of the RTI Act shall be complied with. However, keeping in view that a no. of petitions may have been filed by persons other than the convicted persons, the CPIO may consider the same in view of section 7 (9) of the RTI Act and pass a speaking order with regard to the same. If the appellant desires, he may file an appeal against the said speaking order within four weeks from the receipt of the order. With regard to other points: CIC/SS/A/2012/001106 Point no. (10) to be transferred to the President's Secretariat as the MHA has replied that no such information has been received. The transfer shall be made within five days from the date of receipt of the order. CIC/SS/A/2013/001478 With regard to point (3) & (4) the CPIO shall provide a speaking order. In case the information is not held by the CPIO, MHA, the CPIO shall transfer those points to the concerned department within five days from the receipt of this order. Also, the points (2) (5) (6) & (9) shall be transferred to the concerned public authority as per section 6 (3) of the RTI Act, 2005. The appeal is disposed off accordingly.
Chief Information Commissioner
Citation: Mr Subhash Chandra Agrawal v. Ministry of Home Affairs-Judicial in Case No. CIC/SS/A/2012/001106 CIC/SS/A/2013/001798CIC/SS/A/2013/001478 CIC/SS/A/2013/001050