Central Information Commission
A G Perarivalan vs Ministry Of Home Affairs on 27 August, 2019
के न्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई दिल्ली, New Delhi - 110067
नितीय अपील संख्या / Second Appeal No. CIC/MHOME/A/2018/171964
A.G. Perarivalan ... अपीलकताग/Appellant
VERSUS
बनाम
The CPIO, Judicial Wing, ...प्रनतवािी /Respondent
Ministry of Home Affairs, New
Delhi.
Relevant dates emerging from the appeal:
RTI : 31.05.2018 FA : 09.07.2018 SA : 30.11.2018
CPIO : 28.06.2018 FAO : 12.10.2018 Hearing : 16.08.2019
ORDER
1. The appellant filed an application under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO), Ministry of Home Affairs, New Delhi seeking information on five points pertaining to letter No. 58720/CTS-VIA/2008 dated 02.03.2016 sent by the Tamil Nadu Government to the Ministry of Home Affairs, New Delhi regarding remission of his remaining portion of sentence, including, inter-alia (i) copy of the dak register where letter No. 58720/CTS-VIA/2008 dated 02.03.2016 sent by Tamil Nadu government was received in the Ministry of Home Affairs, and (ii) copy Page 1 of 10 of the entire file along with file noting pertaining to the processing and decision on this letter.
2. The appellant filed a second appeal before the Commission on the ground that both and CPIO and the FAA denied the information sought by him on the plea that the same is privileged information. The appellant requested the Commission to direct the CPIO to provide the information/documents sought by him free of cost, to permit his representative to inspect the documents related to his RTI application and to provide him an oral hearing before a final decision is taken on his appeal.
Hearing:
3. The appellant Shri A.G. Perarivalan attended the hearing through video conferencing. The respondent Shri R. S. Vaidya, Dy. Secretary, Judicial Wing, Ministry of Home Affairs, New Delhi was present in person.
4. The appellant submitted that the Hon'ble Supreme Court vide order dated 18.02.2014 had commuted the death sentence awarded to him to that of life imprisonment. He added that he is being in prison for more than 27 years. Consequently, the Government of Tamil Nadu vide letter no. 58720/Cts- VIA/2008 dated 19.02.2014 had decided to remit his sentence and to release him from prison. Accordingly, the Government of Tamil Nadu vide letter dated 02.03.2016 had requested the Central Government to communicate their views under Section 435 of the Cr. P.C. on the decision of the Government of Tamil Nadu. The appellant further submitted that the documents sought for relates to remission of his sentence and hence pertain to his life and liberty. Hence, the information sought for relates to human rights. In view of this, he had requested copies of entire file noting as well as copy of all the letters and correspondence Page 2 of 10 sent to the Government of Tamil Nadu and received from the Government of Tamil Nadu relating to the decision of the Central Government on the aforesaid proposal of the State Government. However, the respondent denied the information on the grounds that same is privileged and hence, cannot be disclosed under the RTI Act. Moreover, the FAA, vide order dated 12.10.2018, instead of directing the CPIO to provide the documents sought for, provided a copy of the letter of the Government of Tamil Nadu regarding the aforesaid proposal and a copy of the decision of the Ministry (MHA) on the said proposal. The appellant further stated that the respondent had claimed that the information sought for is privileged information and hence denied the same without mentioning under which clause of Section 8 or Section 11 of the RTI Act, is the information exempted from disclosure. Hence, the appellant requested the Commission to direct the MHA to provide the documents on the basis of which MHA had taken the decision on the aforesaid proposal of the Government of Tamil Nadu dated 19.02.2014.
5. The respondent submitted that a copy of the order of the decision of the Central Government on the proposal of the Government of Tamil Nadu contained in the letter dated 02.03.2016 for release of the seven convicts in Rajiv Gandhi Assassination case was furnished to the appellant vide letter dated 12.10.2018. The respondent further submitted that the order was based on the advice tendered by the Ministry. The respondent added that considering the sensitivity of the case, the disclosure of some of the file noting and the correspondence/documents may prejudicially affect the security and integrity of India as well as its relation with foreign State and hence, its disclosure is exempted under Section 8(1)(a) of the RTI Act. The respondent further stated that the file(s) also contains communication from the CBI which is an exempted Page 3 of 10 organization. Further, the Hon'ble High Court of Delhi in Central Board of Direct Taxes vs. Satya Narain Shukla [W.P.(C) 5547/2017, decision dated 19.02.2018] has held as under:
18. A plain reading of Section 24(1) of the Act indicates that the provisions of the Act would not be applicable to Intelligence and Security Organizations as specified in the Second Schedule. Further, any information received from such organizations falls under the exclusionary clause of Section 24(1) of the Act."
6. In view of the above, any communication from the exempted organization is also exempted. Hence, the information sought for is also not disclosable under Section 24(1) of the RTI Act. The respondent requested the Commission that the appellant's appeal deserves to be dismissed.
7. The appellant contended that since the matter relates to his life and liberty and since human rights include life and liberty, the respondent cannot claim that communication from CBI is exempted from disclosure. The appellant also stated that he is not seeking a copy of the advice or recommendation made by Minister(s)/Prime Minister to the President rather he is only seeking the material on the basis of which such recommendations were made. In this regard, the appellant stated that Supreme Court in catena of cases has held that the material on which the reasoning of the Council of Ministers is based and the advice is given cannot be said to form the part of advice and there is no bar for disclosure of such materials under Article 74(2) of the Constitution.
Decision:
8. The Commission, after hearing the submissions of both the parties and perusing the records, observes that the information sought for vide point nos. 2, Page 4 of 10 4 and 5 of the RTI application relate to the appellant's life and liberty and hence, to human rights. The Commission also observes that the Hon'ble High Court of Delhi in the case of the appellant (Ehtesham Qutubuddin Siddiqui Vs. CPIO, Intelligence Bureau, vide its judgment dated 16.01.2019) had observed:
"18. There can be no dispute that the human rights would include life and liberty. It is the petitioner‟s case that he is deprived of his liberty on the basis of false evidence and the information available in the report placed before the Home Minister would indicate the same.
19. In view of the above, there can be little doubt that the petitioner‟s application seeking review report does pertain to an allegation of human rights violation. The gravamen of his allegation is that he has been falsely implicated by the respondent despite the respondent having information that the petitioner was not involved in 7/11 blast case.
20. The CIC has held that the query raised by the petitioner failed to satisfy either of the essential preconditions of being related to allegations of corruption or human rights violation. This Court is of the view that the said conclusion is erroneous, as the information does relate to violation of human rights.
21. It is also necessary to observe that in terms of second proviso to Section 24(1) of the RTI Act, the information sought for by the petitioner can be provided to him only on the approval of the CIC Clearly, the CIC would have to examine whether such information is relevant and material. If the CIC on examination of the material finds that it is not so, the approval for disclosure of such information would not be granted.Page 5 of 10
22. In addition to the above, it is also necessary to observe that merely because such information regarding allegations of corruption and human rights violation is not excluded from the purview of Section 24(1) of the Act, does not necessarily mean that the said information is required to be disclosed. The only import of second proviso to Section 24(1) is that information relating to corruption and human rights violation would fall within the scope of the RTI Act. Section 8 of the RTI Act provides for certain exemptions from disclosure of information and the said provisions would be equally applicable to information pertaining to allegations of corruption and human rights violation. Thus, the concerned authorities would have to examine whether the information sought for by the petitioner is otherwise exempt from such disclosure by virtue of Section 8 of the RTI Act."
9. The Commission also notes that Article 74(2) of the Constitution of India reads as under:
"74. Council of Ministers to aid and advise President.-
(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.
Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.
(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court."
Page 6 of 1010. The Hon'ble Supreme Court in S.R. Bommai vs Union Of India : 1994 AIR 1918 on 11 March, 1994 had observed:
"33. Before I deal with the said issue I may dispose of the question whether the provision of Article 74(2) of the Constitution permits withholding of the reasons and material forming the basis for the ministerial advice tendered to the President. ... Article 74(2) then provides that "the question whether any, and if so what, advice was tendered to the President shall not be inquired into in any Court". What this clause bars from being inquired into is "whether any, and if so what, advice was tendered" and nothing beyond that. This question has been elaborately discussed by my learned colleagues who have examined in detail its pros and cons in their judgments and, therefore, I do not consider it necessary to traverse the same path. It would suffice to say that since reasons would form part of the advice, the Court would be precluded from calling for their disclosure but I agree that Article 74(2) is no bar to the production of all the material on which the ministerial advice was based. Of course the privilege available under the Evidence Act, Sections 123 and 124, would stand on a different footing and can be claimed dehors Article 74(2) of the Constitution."
11. Further, Seven Judges of the Supreme Court in S.P. Gupta and Ors. vs. President of India and Ors.: AIR 1982 SC 149 have examined and interpreted Article 74(2) of the Constitution of India. The Apex Court has lucidly explained in para 60 of the judgment as under:
"60....But the material on which the reasoning of the Council of Ministers is based and the advice is given cannot be said to form the part of advice. The point we are making may be illustrated by taking the Page 7 of 10 analogy of a judgment given by a Court of Law. The judgment would undoubtedly be based on the evidence led before the Court and it would refer to such evidence and discuss it but, on that account, can it be said that the evidence forms part of the Judgment? The judgment would consist only of the decision and the reasons in support of it and the evidence on which the reasoning and the decision are based would not be part of the judgment. Similarly the material on which the advice tendered by the Council of Ministers is based cannot be said to be part of the advice and the correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India which constituted the material forming the basis of the decision of the Central Government must accordingly he held to be outside the exclusionary rule enacted in Clause (2) of Article 74."
12. The Commission in the case of Shri Subhash Chandra Agrawal vs. Ministry of Home Affairs, New Delhi (Appeal No. CIC/SS/A/2012/000051, dated 12.04.2012) has held:
"15. The Commission is of the view that the ratio of its earlier decision in Mayilsamy K (supra) squarely applies to the facts of the present case. File notings and correspondence in relation to mercy petitions, as sought by the Appellant, reflect the material on the basis of which advice and recommendations are made by the MHA to the President of India and thus, fall under the category of information which is not barred by Article 74(2) of the Constitution of India. Information comprising of file notings and correspondences, as exchanged between MHA and President's Secretariat in relation to mercy petitions, has to be tested on the touchstone of Section 8 of the RTI Act and it has to be assessed Page 8 of 10 whether the disclosure of such information is exempted under any of the clauses of Section 8 of the RTI Act."
13. In view of the above, the Commission observes, that the file noting and correspondences received or sent by the Ministry of Home Affairs, regarding the decision of the Central Government on the proposal of Government of Tamil Nadu to remit the remaining portion of the appellant's sentence vide letter dated 02.03.2016, is not a part of the Ministerial advice to the President and hence, can be provided to the appellant. The Commission, however, observes that the disclosure of some of the file noting and the correspondence/ documents may prejudicially affect the security and integrity of India as well as its relation with foreign State and hence, its disclosure is exempted under Section 8(1)(a) of the RTI Act. In view of this, the Commission directs the respondent to provide the above said information, after severing information which would affect the sovereignty and integrity of India, the security and strategic interests of the State, to the appellant within a period of four weeks from the date of receipt of a copy of this order under intimation to the Commission.
14. With the above observations, the appeal is disposed of.
Page 9 of 1015. Copy of the decision be provided free of cost to the parties.
Sd/-
Sudhir Bhargava (सुधीर भागगव) Chief Information Commissioner (मुख्य सूचना आयुक्त) दिनांक / Date 26.08.2019 Authenticated true copy (अनभप्रमानित सत्यानपत प्रनत) S. S. Rohilla (एस. एस. रोनिल्ला) Dy. Registrar (उप-पंजीयक) 011-26186535 / [email protected] Addresses of the parties:
1. The First Appellate Authority, Ministry of Home Affairs, Judicial Wing, 2nd Floor, National Stadium, India Gate, New Delhi- 110002.
2. The Central Public Information Officer, Ministry of Home Affairs, Judicial Wing, 2nd Floor, National Stadium, India Gate, New Delhi- 110002.
3. Shri A.G. Perarivalan, Page 10 of 10