Central Information Commission
Mr.A G Perarivalan vs Ministry Of Law And Justice on 25 June, 2013
Central Information Commission
Room No. 305 B- Wing, August Kranti Bhawan,
Bhikaji Kama Place, New Delhi - 110066
Case No. CIC/SS/A/12/002194
Dated: 25.6.2013
Name of the Appellant: A.G Perarivalan (heard via video conference)
Name of the Public Authority: Ministry of Home Affairs
Represented by: J P Aggrawal (Joint Secretary,
Judicial), Rakesh Jhingan (Under Secretary,
Judicial)
ORDER
1. The present appeal is in continuation of the interim order dated 17.2.2013 wherein the appellant was granted an opportunity to file his written submissions and MHA was directed to file a reply to the same. The appellant has filed his written submissions Dated 15.5.2013 and the MHA has filed a reply dated 31.5.2013 forwarded through letter No. F.16/1/2011-Judl.Cell (Pt.III) Dated 6.6.2013.
2. The appellant filed an RTI application dated 7.10.2011 wherein the appellant states that the he had filed a mercy petition under Article 72 of the Constitution of India and on 27.8.2010 received a communication through the Ministry of Home Affairs that the petition has been rejected. The appellant has sought to know the reasons behind the decision of rejection of the mercy petition filed by the appellant. It is worthwhile to mention that the Commission has already issued directions for providing documents relating to his mercy petition as per the Commission's directives in case no. CIC/SM/C/2011/001068 titled as Shri Mayilsamy K. Vs. President's Secretariat and MHA.
3. Submissions of the Appellant:
The appellant submits that a duty is cast upon every public authority under section 4 (1) (d) of the RTI Act, 2005 to proactively communicate the reasons for any administrative or quasi- judicial decisions to the affected party, however, neither the Ministry of Home Affairs nor the President's secretariat has provided with the reasons for rejection of the mercy petition. Further, he submits that the MHA had earlier furnished an incomplete compilation of documents pertaining to mercy petition file to Mr. Mayilsamy K(Advocate) on his behalf. The appellant submits that a recommendation was made to get the opinion of the Multi-Disciplinary Monitoring Agency (MDMA) prior to the disposal of the mercy petition and that the copies of the correspondence between the Ministry of Home Affairs and MDMA or the documents showing the result of investigation conducted by the MDMA, the report sent, file notings in relation to that report or any other correspondence or documents pertaining to that report has not been provided to him. The appellant submits that it is necessary for him to know whether any investigation in this regard has been completed at all and whether those facts were considered before deciding his mercy petition. The appellant seeks the copies of all the petitions received by the Government pertaining to his case and details as to how many such petitions were considered at the time of deciding my mercy petition. The appellant seeks the details of the document that were placed for consideration for disposal of his mercy petition. The appellant makes the following submission in relation to Article 74 :
"First of all the article above quoted might prohibit only the courts from inquiring in to the advice tendered by the ministers but it cannot be said in no stretch of imagination that the citizens and the person affected would not have right to know the reasons. Hence the reasons ought to be provided. Therefore the information sought in the original application need to be allowed in full.
Secondly, the rejection was made by the President and the same is intimated to the affected convict through the MHA. Therefore the reasons for rejection by the President is not prohibited from disclosure by citing any provisions of law except those under RTI Act as because this is umbrella law which governs the disclosure of information by the government authorities."
4. Submissions of the respondent:
The respondent relied upon the Judgement of the Hon'ble Delhi High Court in the matter of Union of India Vs CIC (WP(C ) No. 13090 of 2006) dated 11.7.2012 wherein the respondent has reproduced the following paragraph in their written submissions:
"52. Thus there is an apparent and conspicuous distinction between the advice and the material on the basis of which advice is rendered. In case of Doypack (supra) the Supreme Court had held as under:-
44. Shri Nariman however, submitted on the authority of the decision of this Court in S.P. Gupta v. Union of India that the documents sought for herein were not privileged. The context and the nature of the documents sought for in S.P. Gupta case were entirely different. In this case these documents as we see are part of the preparation of the documents leading to the formation of the advice tendered to the President of India and as such these are privileged under Article 74(2) of the Constitution which provides that the question whether any, and if so what, advice was tendered by Ministers to the President shall not be enquired into in any court. This Court is precluded from asking for production of these documents................... ....It is well to remember that it is the duty of this Court to prevent disclosure where Article 74(2) is applicable."
The respondent further submits that in mercy petition cases, file notings of the officials, copy of mercy petitions, information received from State Govt./UTs, Judgements of the Courts etc. are the documents/information which lead to the formation of the Ministerial advice to the President. Hence, these documents also covered under Article 74 (2) of the Constitution.
5. In the recent decision in the matter of Devender Pal Singh Bhullar Vs State of N.C.T of Delhi Writ Petition (Criminal) D. No. 16039 of 2011 dated 12.4.2013 while discussing the nature of power vested in the President under Article 72 the Hon'ble Supreme Court has taken the following view:
"(ii) while exercising power under Article 72, the President is required to act on the aid and advice of the Council of Ministers. In tendering its advice to the President, the Central Government is duty bound to objectively place the case of the convict with a clear indication about the nature and magnitude of the crime committed by him, its impact on the society and all incriminating and extenuating circumstances. The same is true about the State Government, which is required to give advice to the Governor to enable him to exercise power under Article 161 of the Constitution. On receipt of the advice of the Government, the President or the Governor, as the case may be, has to take a final decision in the matter. Although, he/she cannot overturn the final verdict of the Court, but in appropriate case, the President or the Governor, as the case may be, can after scanning the record of the case, form his/her independent opinion whether a case is made out for grant of pardon, reprieve, etc.. In any case, the President or the Governor, as the case may be, has to take cognizance of the relevant facts and then decide whether a case is made out for exercise of power under Article 72 or 161 of the Constitution."
6. In the Judgement of Union of India Vs CIC in WP. No. 13090 of 2006 dated 11.7.2012 the Hon'ble Delhi High Court held:
"30. ..... Thus, CIC has held that the bar under Section 74(2) is not absolute and the bar is subject to the provisions of the RTI Act and the only exception for not disclosing the information is as provided under Sections 8 & 11 of the RTI Act. The proposition of the respondent No.1 is not logical and cannot be sustained in the facts and circumstances. The Right to Information Act cannot have overriding effect over the Constitution of India nor can it amend, modify or abrogate the provisions of the Constitution of India in any manner. Even the CIC cannot equate himself with the Constitutional authorities, the Judges of the Supreme Court of India and all High Courts in the States.
................................................................................................ ................................................................................................ ...... 32. The above observation of respondent No.1 is legally not tenable. Right to Information Act, 2005 which was enacted by the Legislature under the powers given under the Constitution of India cannot abrogate, amend, modify or change the bar under Article 74(2) as has been contended by the respondent No.1. Even if the RTI Act overrides Official Secrets Act, the Indian Evidence Act, however, this cannot be construed in such a manner to hold that the Right to Information Act will override the provisions of the Constitution of India. The learned counsel for the respondent No.2 is unable to satisfy this Court as to how on the basis of the provisions of the RTI Act the mandate of the Constitution of India can be amended or modified."
7. Furthermore, the Chief Information Commissioner in a single bench of the Commission while dealing with the issue of information relating to mercy petition has taken the following view in the case no. CIC/SM/C/2011/001068 dated 1.9.2011 :
"11.In the light of the above, we give the following directions to the CPIO:
(i) Mercy Petitions:
He shall provide the copies of the Mercy petitions not only by the three persons themselves but by others on their behalf which have been taken into consideration from time to time.
(ii) File notings:
He shall disclose the copies of the file notings not forming part of the ministerial advice to the President of India after severing all the names and other references regarding the identities of the public servants regarding those file notings and making those correspondence.
(iii) Correspondence:
He shall also disclose the copies of the correspondence made from time to time in connection with the mercy petitions except those, which in his opinion should not be disclosed being exempt in terms of Section 8(1)(a) of the RTI Act. If he decides to withhold some of the correspondence, he shall pass a speaking order. Needless to say, the Complainant will be free to approach the Appellate Authority if he is not satisfied with the decision of the CPIO. "
Decision and Reasons:
In view of the Judgement of the Hon'ble Delhi High Court, the provisions of RTI Act cannot take away the Constitutional protection and therefore the disclosure under the RTI Act has to be in consonance with the Article 72 and Article 74 (2) of the Constitution. The appellant seeks to know the reasons of rejection of his mercy petition filed under Article 72 of the Constitution. In this case this case the reasons are primarily recorded in the advice tendered by the Council of Ministers which is protected by Article 74 (2) of the Constitution. As held by the Hon'ble Delhi High Court, the provisions of the RTI Act is also bound by the Constitution.
There are some points raised by the appellant at the second appeal stage which are being considered as the appellant submits that the death sentence against him may be executed any time and the matter pertains to life and liberty. As the appellant states that complete documents were not handed over to his advocate Mayilsamy K as per the previous directions, the Commission hereby directs MHA to provide the documents not already provided which are disclosable to the appellant. The appellant states in his second appeal that the MDMA (Multi-Disciplinary Monitoring Agency) investigation report was not provided to him. Therefore, the CPIO is directed to provide the report in relation to the MDMA, however, if the said document attracts any of the exemption provisions of the RTI Act, the CPIO will pass a speaking order with that regard. Directions of the Commission are to be complied within 7 days from the receipt of the order.
Sushma Singh Information Commissioner Authenticated True Copy:
(DC Singh) Deputy Registrar Name & Address of Parties:
1. Appellant:
A.G Perarivalan, Through the Superintendent, Central Prison, Thorapadi, Vellore (T.N) - 632002
2. Public Information Officer & Ministry of Home Affairs, Judicial Division, NDCC-22, Bhawan, B Wing, 4th Floor, Jai Singh Marg, New Delhi - 110 001
3. First Appellate Authority & The Joint Secretary (C & PG), Ministry of Home Affairs, North Block, New Delhi 110 001