Central Information Commission
Kidambi Sethu Raman vs Ministry Of Home Affairs on 2 December, 2021
के न्द्रीय सूचना आयोग
Central Information Commission
बाबा गंग नाथ मागग, मुन नरका
Baba Gangnath Marg, Munirka
नई दिल्ली, New Delhi - 110067
नितीय अपील संख्या / Second Appeal No. CIC/M HOME/A/2019/644863
Shri Kidambi Sethu Raman ... अपीलकताग/Appellant
VERSUS/बनाम
PIO, Ministry of Home Affairs ...प्रनतवािीगण /Respondent
Through: Shri Suresh Chandra Tamta-CPIO/DS
Date of Hearing : 01.12.2021
Date of Decision : 02.12.2021
Chief Information Commissioner : Shri Y. K. Sinha
Relevant facts emerging from appeal:
RTI application filed on : 23.03.2019
PIO replied on : 09.04.2019
First Appeal filed on : 15.04.2019
First Appellate Order on : 27.06.2019
2ndAppeal/complaint dated : 07.07.2019
Information soughtand background of the case:
The Appellant filed an RTI application dated 23.03.2019 seeking information about President's assent to Andhra Pradesh Hindu Religious and Charitable Endowments Act 1987. The information sought by him are as follows:
1. What were grounds and material facts tha t were taken into consideration by His Excellency President of India while giving his assent to Andhra Pradesh Hindu Religious and Charitable Endowments Act 1987.
2. What were the ministries to which Andhra Pradesh Hindu Religious and Charitable Endowments Act 1987 was sent before assent was given by the President to the above mentioned act.
3. Give me the copy of the note or recommendations given by different ministries to which the above mentioned Act was referred.
The PIO/Under Secretary vide letter dated 09.04.2019 replied as under:-
Page 1 of 8Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 15.04.2019. The FAA/Jt. Secretary (CS) vide order dated 27.06.2019 upheld the reply of the CPIO, citing a decision of the Delhi high Court, as follows:
Aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
Facts emerging in Course of Hearing:
A written submission has been received from the Appellant vide letter dated 19.11.2021 reiterating the facts of the case and placing reliance on citations on Article 74(2) of the Constitution:Page 2 of 8
Written submissions dated 29.11.2021 have been received from the Respondent- DS/CPIO, providing point wise reply on each point raised by the Appellant in the Second Appeal, in the following manner:Page 3 of 8 Page 4 of 8
A copy of the submissions has been marked to the Appellant.
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearing was scheduled through video conference after giving prior notice to both the parties.
The Appellant has sent a communication dated 30.11.2021, seeking exemption from attending hearing due to heavy rains. He has requested that the case may be decided on the basis of his submissions dated 22.11.2021.
Decision:
Upon perusal of the submissions placed forth by the parties, it is pertinent to go through the decision cited by the Respondent to deny the information. The decision passed by the Delhi High Court in the case of Union Of India vs Central Information Commission & Anr. Dated 11 July, 2012 [WP(C) NO. 13090/2006] " ....6. The order dated 8th August, 2006 passed by the Central Information Commission, respondent no.1, has been challenged by the petitioner on the ground that the provisions of the Right to Information Act, 2005 should be construed in the light of the provisi ons of the Constitution of India; that by virtue of Article 74(2) of the Constitution of India, the advise tendered by the Council of Ministers to the President is beyond the judicial inquiry and that the bar as contained in Article 74(2) of the Constitution of India would be applicable to the correspondence exchanged between the President and the Prime Minister. Thus, it is urged that the consulta tive process between the then President and the then Prime Minister, enjoys immunity. Further it Page 5 of 8 was contended that since the correspondences exchanged cannot be enquired into by any Court under Article 74(2) consequently respondent no.1 cannot look into the same. The petitioner further contended that even if the documents form a part of the preparation of the documents leading to the formation of the advice tendered to the President, the same are also „privileged‟. According to the petitioner since the correspondences are privileged, therefore, it enjoys the immunity from disclosure, even in proceedings initiated under the Right to Information Act, 2005 ...."
The contentions of the CIC were noted as part of the decision as under:
" ....30. The CIC, respondent No.1 has observed that Article 74(2), 78 and 361 of the Constitution of India do not per se entitle the public authorities to claim privilege from disclosure. The respondent No.1 had observed that since the Right to information Act has come into force, whatever immunity from disclosure could have been claimed by the State under the law, stands virtually extinguished, except on the ground explicitly mentioned under Section 8 and in some cases under Section 11 of the RTI Act. 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.
This aspect was dealt with by the Hon'ble High Court as under:
"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 sa tisfy 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. Amendment of any of the provisions of the Constitution can be possible only as per the procedure provided in the Constitution, which is Article 368 and the same cannot be deemed to be amended or obliterated merely on passing of subsequent Sta tutes. There can be no doubt about the Page 6 of 8 proposition that the Constitution is supreme and tha t all the authorities function under the Supreme Law of land. For this Golak Nath v. Sta te of Punjab, AIR 1967 SC 1643 can be relied on. In these circumstances, the plea of the respondents tha t since the Right to Information Act, 2005 has come into force, whatever bar has been created under Article 74(2) stands virtually extinguished is not tenable. The plea is not legally sustainable and cannot be accepted ..."
In the above decision of the Hon'ble High Court of De lhi, reference has been placed on another decision of the same Court in the case of Union of India v. CIC, 165 (2009) DLT 559 wherein it had been held as under:
"...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.
34 ....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 tha t this is the intention of the Legislature, such an intension, without the amendment to the Constitution cannot be sustained.
Conclusive part of the decision in the case of Union Of India vs. Central Information Commission & Anr. Dated 11 July, 2012 reads as follows:
" ...53. 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 tha t 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 da ted 8th August, 2006 is liable to be set aside and the CIC cannot direct the petitioner to produce the correspondence ..., and since the CIC is not entitled to peruse the .., 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...."
Though the Appellant has contended that the factual decision of the instant case is totally different, the Commission finds the subject matter of the cases are same as both deal with the immunity under Article 74(2) of the Constitution. In the light of the aforementioned clear dictum, no further adjudication is deemed Page 7 of 8 necessary in this case since the germane issue which has arisen in the instant case has been squarely adjudicated by the above detailed decision of the Delhi High Court, as noted above.
Under the circumstances, the appeal at hand is disposed off with no further direction.
Y. K. Sinha ( वाई. के . नसन्द्हा) Chief Information Commissioner (मुख्य सूचना आयुक्त ) Authenticated true copy (अभिप्रमाभित सत्याभित प्रभत) S. K. Chitkara (एस. के. चिटकारा) Dy. Registrar (उप-पंजीयक) 011-26186535 Page 8 of 8