Central Information Commission
Mr.Mayilsamy. K vs President Secretariat on 1 September, 2011
CENTRAL INFORMATION COMMISSION
B- Wing, 2nd Floor,
August Kranti Bhavan, Bhikaji Cama Place,
New Delhi - 110066
Complaint No.CIC/SM/C/2011/001068
PARTIES TO THE CASE:
Complainant : Shri Mayilsamy K
Respondents :
1. President's Secretariat, RTI Section, Rashtrapati Bhawan, New
Delhi
2. Ministry of Home Affairs, Government of India
Date of Hearing : 01/09/2011
BACKGROUND OF THE CASE:
1. The present matter was scheduled for hearing before the Commission on 01/09/2011 at 1100 hours. The Complainant in his RTI Application dated 20/08/2011, received on 23/08/2011, filed under proviso to Section 7 (1) concerning Life and Liberty had sought the following information from the abovenamed Respondent No.1:
"1. Provide me the copy of the Order, mercy petition rejected by the Hon'ble President of India
2. Copy of complete correspondences, file notings and all the documents etc. relating to the mercy petitions 1 filed in the case of Periarivalan @ Ariva, Muragan, Santhan
3. In addition to information mentioned above, copy of all mercy petitions and reminders, (individuals, MPs, NGOs, Political parties, Non-Political and any other) which filed for Periarivalan @ Ariva, Muragan, Santhan before the President of India and the corresponding response of the President of India on these petitions and reminders
4. In addition to information mentioned above, copy of the comments made by the ministry of Home Affairs in relation to the mercy petitions filed in the case of Periarivalan @ Ariva, Muragan, Santhan
5. In addition to information mentioned above, copy of all correspondences between the ministry of home affairs, State Government and President's office in relation to Periarivalan @ Ariva, Muragan, Santhan
6. In addition to information mentioned above, copy of any comments made by the State Government in the case of Periarivalan @ Ariva, Muragan, Santhan
7. All other related documents in relation to the mercy petitions filed in the case of Periarivalan @ Ariva, Muragan, Santhan
8. Provide me the copy of the order in the case of Nalini wherein the mercy petition was allowed by the Hon'ble President of India 2
9. Provide me the details of which ground the mercy petition of Nalini was decided by the Hon'ble President of India"
In sum and substance, the information sought by the Appellant includes the copies of the mercy petitions filed not only by the prisoners sentenced to death but also by others on their behalf, the file notings and correspondence made in the respective officers of the Government in dealing with those mercy petitions and some other related documents.
2. The CPIO of the Respondent No.1, Shri Saurabh Vijay, through his Order dated 24/08/2011 had transferred the Complainant's RTI Application to the CPIO, Ministry of Home Affairs, Government of India under Section 6 (3) of the RTI Act i.e. within 24hours of the receipt of RTI Application ,which is appreciated. The CPIO, Ministry of Home Affairs ("MHA") through his Order dated 30/08/2011 provided the Complainant a copy of the Order dated 12/08/2011 conveying the rejection of the mercy petition by the Hon'ble President of India, in response to Question No.1 of his RTI Application. Although the information had been specifically sought under the proviso to Section 7 (1) mandating the CPIO, MHA to give information within 48 hours, it appears that CPIO, MHA did not pay any attention to this prayer. In the opinion of the Commission, it was a fit case to be treated as "life and liberty matter" as the date of execution of the sentence was already announced for the above named prisoners.
3. With regards to Question No. 2 to 7, the CPIO of the MHA had denied the information sought therein under Section 8 (1) (a), (g) and (i) of the RTI Act. In response to Question No. 8 and 9, the 3 CPIO of the MHA had stated that the information sought therein might be obtained from the Government of Tamil Nadu.
4. The Complainant, aggrieved by the decision of the CPIO of the MHA, has filed the present complaint dated 29/08/2011 before this Commission.
DECISION NOTICE:
5. During the hearing, although there was no ambiguity about what would constitute the mercy petitions filed by both the prisoners and others, there was some difference of opinion regarding the nature of the file notings and other documents which the Complainant has sought. In fact, the Respondents submitted that the entire information sought was covered under the exemption provisions of section 8 (1) (a), (i) and (g) of the Right to Information (RTI) Act. Besides, they also argued that the information could not be disclosed since it was protected by Article 74(2) of the Constitution of India. In order to determine if all or some of the information sought would be covered under any of the exemption provisions of the Right to Information (RTI) Act or the Constitution of India, we thought it necessary to examine the relevant records. The Respondents produced the relevant case file containing the file notings from the beginning till the Home Minister submitted his advice to the President of India.
6. Our views on the various categories of information sought are as follows:-
(i) Mercy Petitions:4
All mercy petitions filed before the President of India either by the persons sentenced to death or others, which have been taken into consideration by the Government, should be disclosed. These are not covered under any of the exemption provisions of the Right to Information Act.
(ii) File notings and correspondence:
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. This clarification becomes relevant because in terms of Section 74(2) of the Constitution of India, the advice tendered by the Minister to the President of India shall not be enquired into by 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. In fact, in its order in the Union of India (UOI) through Director, Ministry of Personnel, PG and Pensions and Others Vs. Central Information Commission and Shri P.D. Khandelwal and others [Writ Petition (Civil) No. 16907/2006, 3607, 7304 of 2007, 4788, 6085/2008 and 7930, 8396 and 9914/2009 decided on 30 November 2009], the Delhi High Court held "When Article 74(2) of the Constitution applies and bars disclosure, information cannot be furnished. RTI Act cannot and does not have the ability and mandate to negate the Constitutional protection under Article 74(2). The said Article refers to inquiry by Courts but will equally apply to CIC". (emphasis added)
7. Thus, there is no ambiguity about the status of the advice tendered by the Minister to the President; it is clearly not to be disclosed 5 under the Right to Information Act. Now what are to be considered are all other file notings and the correspondence made in connection with the dealing of the mercy petitions. In S.P. Gupta and others versus President of India and others (AIR 1982 SC 149) Supreme Court has held 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 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 6 of the Central Government must accordingly be held to be outside the exclusionary rule enacted in Clause (2) of Article 74.
8. The High Court of Delhi in P.D.Khandelwal Case (supra) also held that the material which is taken into consideration for formulating the advice is not to be treated as the part of advice. The relevant extracts from those orders are as follows:-
"It was further observed that the reasons which prevailed with the Council of Ministers, would form part of the advice tendered to the President and therefore they would be beyond the scope/ambit of judicial inquiry. However, if the Government chooses to disclose these reasons or it may be possible to gather the reasons from other circumstances, the Court would be entitled to examine whether the reasons bear reasonable nexus [See, para 58 at p.228, S.P. Gupta (supra)]. Views expressed by authorities/persons which precede the formation of advice tendered or merely because these views are referred to in the advice which is ultimately tendered by the Council of Ministers, do not necessarily become part of the advice protected against disclosure under Article 74(2) of the Constitution of India. Accordingly, the material on which the reasons of the Council of Ministers are based and the advice is given do not form part of the advice."7
In view of the clear findings of the courts, those file notings and the correspondence made in connection with the file notings/mercy petitions which do not form part of the advice should be disclosed.
9. However, before giving any direction to the CPIO in this regard, we would like to take into consideration the objections made by the Respondents against such disclosure. They argued that the disclosure of such information is exempt under Section 8(1)(a) of the Right to Information Act. Section 8 (1)(a) reads as follows:-
"8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-
(a) Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence."
Any information which, if disclosed, would adversely and prejudicially affect the sovereignty and integrity of India or its security or its relation with any foreign State or which will lead to incitement of an offence alone should not be disclosed. The file notings other than the advice of the Minister and the correspondence made from time to time in this regard strictly revolve around the mercy petitions. The file notings that we ourselves examined during the hearing did not appear to contain any such information which, if disclosed, could result in any of the effects listed in Section 8(1)(a). However, as far as the correspondence made in this case is concerned, we have not examined those. Ordinarily since the 8 correspondence made in this regard does not form part of the ministerial advice to the President of India, it could be disclosed. We would leave it to the CPIO to examine the correspondence and to decide which to disclose and which not to. But in every case where he decides not to disclose, he has to pass a speaking order justifying the denial of information strictly in terms of exemption provision of Section 8(1)(a). In case, the CPIO decides to withhold part of the correspondence, the Complainant would be free to agitate the matter before the first Appellate Authority and seek urgent hearing in view of the 'life and liberty' issues involved in this case.
10. Respondents argued that this information should also not be disclosed as it is exempted under Section 8(1)(g). Section 8(1)(g) reads as follows:-
"information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purpose"
The file notings and the correspondence contain the names and identified of various public servants. The disclosure of the information would bring their identities in the public domain. Looking to the sensitivity of the matter and specially the background of the persons whose mercy petitions is the subject matter in this case, there is a lot of strength in the arguments of the Respondents that the disclosure of the identity of those recording the file notings and making the correspondence may indeed endanger their physical safety or, in some cases, identify the source of information or assistance given in confidence. Therefore, while disclosing this 9 information, due care must be taken to remove all references which might expose the identity of the public servants concerned.
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.
12. We direct the CPIO to comply with our directions within 7 working days of receiving this order.
13. With the above observations and findings, the present complaint stands disposed of.
10Sd/-
(Satyananda Mishra) Chief Information Commissioner Authenticated True Copies Sd/-
Aakash Deep Chakravarti Additional Registrar 11