Financial
Express: Opinion: Friday, June 28, 2019.
In
an order dated 14 June 2019, the Central Information Commission held that any file
noting or correspondence regarding a mercy petition not forming a part of the Ministerial
advice to the President under Article 74 (2) could be divulged and directed the
Ministry of Home Affairs to provide such information to the applicant.
The
CIC was hearing an application filed by the mother of a death row convict, Pradeep
Yeshwanth Kokde imprisoned in Yerwada Central Jail. The application filed
under the RTI Act prayed for
disclosure of copies of the mercy petition of her son along with copies of file
noting and memos or comments pertaining to such petition. When the CPIO
rejected her plea and the FAA did not respond to her previous appeal, a second
one was filed by her.
During
the hearing, the appellant argued that such file noting or comments based on
which advice is rendered are not privileged under article 74(2). In response,
the MHA contended that Ministerial advice or recommendation rendered to the President
under the Article is based upon such documents and hence cannot be segregated
from the purview of 'advice to the President' under the Article. In furtherance
of their arguments, the respondents relied upon a Delhi High Court judgment
wherein an order by the Commission directing the disclosure of correspondence
relating to the Gujarat riots between the then Prime Minister and the former
President of India was set aside, holding that such correspondence was included
within 'advice' rendered.
Article
74 (2) of the Constitution provides that: The question whether any, and if so
what, advice was tendered by Ministers to the President shall not be inquired
into in any court. Sudhir Bhargava, the Central Information Commissioner after
hearing the parties, referred to a range of Supreme Court, High Court and CIC
judgments relating to the exclusionary nature of Article 74 (2) and dismissed
the plea of the respondents.
The
CIC relied upon the interpretation of Article 74 (2) given in S.R Bommai V. Union
of India AIR 1994 1918 wherein it was noted that unlike the reasons which form
a part of the advice, Article 74 (2) was no bar to production of all materials
on which the ministerial advice was based.
Further,
reference was made to the judgment by seven judge bench in S.P Gupta V. Union
of India AIR 1982 SC 149, where a similar approach was adopted by holding that
material based on which the reasoning and the decision are made would be outside
the exclusionary ambit of the Article.
With
regards to the nature of the documents which do not constitute such evidence and
its disclosure in the interest of law, the Commission further relied upon the
case of Union of India V. P.D Khandelwal [W.P (c) 8396 OF 2009] where the Delhi
High Court held that documents falling outside article 74 (2) cannot be
concealed on the ground that they belong to a class which is granted absolute
protection against disclosure. Public interest would be the deciding factor in
such cases of disclosure.
An
order of the CIC in Sheri Sub has Chandra Agawam V. Ministry of Home Affairs, New
Delhi (Appeal No. CIC/SS/A/2012/000051] was also referred to, where it was held
file noting and correspondence relating to mercy petitions fall under information
not barred by Article 74 (2) and such information has to be tested on the touchstone
of Section 8 of the RTI Act.
In
light of the above decisions, the Commission held that:
"…File
noting and correspondence received or sent by the Ministry of Home Affairs pertaining
to the appellant's mercy petition which is not a part of the Ministerial advice
to the President as well as the file noting relating to the file of the mercy petition
file by Sheri Praveen Yeshwanth Coked as sought by the appellant can be provided
to the appellant."
However,
considering that the disclosure of the names of the public officials which might
be present in such noting may endanger their life and physical safety, the CIC held
that such disclosure is exempted under section 8(1) (g) of the RTI Act. Thus
the Commission directed provision of the information to the applicant after severing
the names and other references which could reveal the identities of such officials.
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